94-002043DRI Ben Johnson And Coastal Development Consultants, Inc. vs. Franklin County Board Of County Commissioners Status: Closed Recommended Order on Wednesday, January 11, 1995.

Summary: Petitioner showed amend to Development of Regional Impact do justify because condo and multi-family residence. Less intensive use not substantial deviate from original development order commercial. designation

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEN JOHNSON and COASTAL )

DEVELOPMENT CONSULTANTS, )

)

Petitioners, )

)

vs. ) CASE NO. 94-2043DRI

)

BOARD OF COUNTY COMMISSIONERS )

OF FRANKLIN COUNTY, FLORIDA, )

)

Respondent, )

and )

)

THOMAS H. ADAMS, )

)

Intervenor. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael

Ruff, duly-designated Hearing Officer of the Division of Administrative

Hearings, on August 22-23 and September 9, 1994, in Apalachicola, Florida.

APPEARANCES

For Petitioners: L. Lee Williams, Jr., Esquire

William J. Peebles, Esquire

the testimony and evidence, is consistent with the development order and any

vested rights thus acquired by the Petitioners.

PRELIMINARY STATEMENT

The Petitioners' cause of action became ripe for adjudication upon the

filing of a petition for appeal with the Florida Land and Water Adjudicatory

Commission on February 17, 1994. That petition was transmitted to the Division

of Administrative Hearings and the undersigned Hearing Officer for formal

proceeding. On June 30, 1993, the Petitioners had filed with the Respondent a

notification of proposed change to a previously-approved development of regional

impact (DRI) in accordance with Chapter 380, Florida Statutes. That proposed

amendment, if approved, would allow the development of multi-family residential

units and condominiums on the Petitioners' property on St. George Island,

Florida.

A public hearing was held on the proposed amendment by the Respondent on

December 7, 1993 and upon a motion to deny it, the Respondent voted to deny the

amendment. The Respondent issued an order setting forth the denial on January

4, 1994, in which the Respondent took the position that the owners of the

property should apply for an amendment to the development order, specifying

densities of uses permitted for the property and that future applications for

development orders concerning the property should address storm water, sewage

disposal, fire safety, emergency evacuation, water supply, and provide

reasonable assurances that the quality and productivity of Apalachicola Bay will

be maintained.

A formal hearing was conducted by the undersigned Hearing Officer on the

above-mentioned dates. The Petitioners presented the testimony of Warren Emo,

an architect and planner; Steve Leitman, an environmental consultant; Gary

Volenec, a professional engineer specializing in waste water and environmental

engineering; Helen Spohrer; Mary Lou Short; Dan Garlick, an environmental

consultant and planner; Randy Armstrong, a biologist and environmental

consultant; and Ben Johnson, representing the Petitioner entity. Petitioners'

Exhibits 1-19 were admitted into evidence.

The Respondent presented the testimony of Woody Miley, manager of the

Apalachicola Estuarine Research Reserve; Richard Deadman, a planning manager

with the Department of Environmental Protection (DEP); Mike Donovan, senior

planner for the Apalachee Regional Planning Council (ARPC); and Alan Pierce,

county planner and emergency management director for Franklin County. The

Respondent's Exhibits 1-11 were admitted into evidence.

The Intervenor presented the testimony of Charles Shiver; John Kintz, the

potable water section supervisor for the northwest district of DEP; Jonathan

May, acting wastewater supervisor and wastewater permitting engineer for DEP;

Daniel Tonsmeire, assistant water resource planner for the Northwest Florida

Water Management District (NWFWMD); Lee Edmiston, research coordinator for the

Apalachicola Estuarine Research Reserve (Reserve) and Thomas H. Adams, the

Intervenor himself. The Intervenor's Exhibits 2-7, 9, 10, and 13 were admitted

into evidence.

Subsequent to the hearing, the parties had the proceedings transcribed and

availed themselves of the right to submit Proposed Recommended Orders containing

proposed findings of fact and conclusions of law. Those proposed findings of

fact have been addressed in the rendition of this Recommended Order and are

specifically ruled upon again in the Appendix attached hereto and incorporated

by referenced herein.

FINDINGS OF FACT

1. A development order (DO) was approved by the County on September 10,

1977 providing for a DRI for approximately 1,200 acres of property on St. George

Island in Franklin County, Florida. The 1,200 acres to which the 1977 DO

relates is not contiguous. It is separated into two parcels, one of which is

located on the east end of St. George Island, adjacent to the state park, which

contains 33-1/3 acres designated as "commercial". It is identified as the

"Sunset Beach Commercial Area" in that 1977 DO. That same area is also referred

to as Three Hundred Ocean Mile, Gorrie Ocean Mile, or Sunset Beach. The

remaining portion of the 1,200 acres is located between 12th Street West and the

Bob Sikes Cut, and is generally referred to as the "Plantation". The Plantation

DRI property is divided by the 1977 DO into both residential and commercial

areas. There are two designated commercial areas in the Plantation property,

one of which is adjacent to Bob Sikes Cut and is approximately 100 acres in

size. The other commercial area is approximately 150 acres in area and is

referred to as the "Airport Commercial Area" or the "Nick's Hole Commercial

Area". These areas are collectively referred to in the 1977 DO as the

"Plantation Commercial Areas". The remainder of the Plantation DRI property

consists of 900 to 1,000 platted, residential lots designated as "Residential

Areas". Approximately 250 of these lots are already developed with single-

family residences. The Petitioners are successor-in-interest to a portion of

the Plantation property, owning approximately 58 acres within the Airport or

Nick's Hole Commercial Area. This property is hereinafter described as

"Petitioners' Property" and is depicted in Exhibits 9, 17, 18 and 19 adduced by

the Petitioners.

2. The 1977 DO limits the total commercial area which can be developed to

not more than 200 acres even though a larger portion is commercially designated.

Thus, the development of the 58 acres at issue in this proceeding will not

result in the limit in the 1977 DO being exceeded. The 1977 DO authorizes

commercial development within the Plantation Commercial Areas, shown by page 5

of the Petitioners' Exhibit 2 in evidence. The 1977 DO thus provides that the

commercial areas shall include one or more high quality resort hotels and

motels, with affiliated uses such as tourist shops, restaurants, recreational

amenities and similar activities. The 1977 DO provides that because specific

plans for the two areas were indefinite at the time of the enactment of the 1977

DO, those areas would not be re-zoned at that time; but re-zoning of the areas

would be granted upon final approval of the plans by the Respondent, "which

approval shall not be unreasonably withheld". "Condominiums and multi-family

residential structures shall not be allowed in any of the areas shown by Exhibit

"A" without the prior consent of the Respondent. Before development is

commenced in the commercial areas, plans and specifications for the site

clearing and construction shall be submitted to the Respondent for review and

approval. Upon such approval, the specific area in question shall be re-zoned

to allow the requested land use."

3. The 1977 DO has been amended several times. Two of the amendments

enacted in 1985 and 1987 specifically authorize condominium and multi-family

residential development within the Plantation Commercial Areas.

4. The Franklin County zoning ordinance, Ordinance No. 75-7 (Zoning

Ordinance), was in effect on September 20, 1977, when the 1977 DO was enacted.

The Ordinance authorized condominium and multi-family residential development as

part of the "commercial designation" applicable to St. George Island in the

Plantation Commercial Areas. A "Tourist Commercial District" is established in

Section 630 of the Zoning Ordinance, and this land use is specifically

applicable to the islands within Franklin County. Section 631 of the Ordinance

includes within the "Principal Permitted Uses" hotel, motel, restaurant and gift

shops and all uses within R-2 multi-family districts. Section 520 of the Zoning

Ordinance, "Multi-Family Residential District", sets forth principal permitted

uses, which include "multiple dwellings including townhouses, apartment houses .

. .".

5. The Petitioners acquired their 58-acre parcel in 1991 after the entry

of the 1977 DO and the two amendments referenced above. Exhibit "D" to the 1977

DO is depicted in Petitioners' Exhibit 3 in evidence. This exhibit, which

includes the Petitioners' property, has been recorded in the Franklin County

Public Records since 1977. The exhibit indicates the intensity of the

contemplated development approved for the Petitioners' property. The portion

south of Leisure Lane reflects the following densities: 525 to 675 hotel rooms;

food and beverage outlets and other amenities associated with those hotel rooms;

65,000 to 82,000 square feet of resort shops and commercial business use; and

685 surface parking spaces (in addition to the parking spaces which would be

located below the hotel). Those densities were calculated based upon the

coverages depicted on "Exhibit D". The figures do not include that portion of

the Petitioners' property north of Leisure Lane, which was also approved for

commercial development.

The Proposed Development

6. "Resort Village", the proposed development, would consist of

residential and multi-family development, hotel and inn and related commercial

uses, such as retail shops and restaurants. Recreational amenities would be

provided, such as a club house, swimming pool, tennis courts, racquetball courts

and exercise facilities. The amenities would be available to surrounding

property owners, as well. St. George Island is a resort vacation area, and the

proposed development in Resort Village would be compatible with those uses.

Approximately 150 of the 250 developed homes in the Plantation are in rental

programs.

7. The Franklin County Comprehensive Plan and its land use goals,

objectives and policies includes a "mixed-use residential" land use category,

limited to developments such as DRI's. That category includes recreational,

commercial, retail, office, and hotel and motel development, as well as multi-

family residential uses. That category is very similar to the description of

the Plantation Commercial Areas contained in the 1977 DO. Resort Village is the

only parcel remaining in the Plantation area available for this type of

development.

8. The Petitioners in the St. George Plantation Owners Association, Inc.

entered into an agreement in October, 1992 providing for certain density and

other restrictions on the Petitioners' property. These restrictions include

density limitations of 3.9 residential units per gross acre; 19.5 hotel units

per gross acre; and 12,000 square feet of miscellaneous commercial development

per gross acre. The Petitioners also agreed not to exceed a 35-foot height

limitation which was less than that previously approved by the County in the

Plantation Commercial Areas.

9. The development restrictions agreed to by the Petitioners are more

stringent than those previously approved for development in the Plantation

Commercial Areas and allowed-for by the County zoning code in effect in 1977 or

currently authorized and allowed in commercial and multi-family developments in

the County. The Petitioners have also agreed to limit the total impervious

surface area to no more than 40 percent; to maintain a 50-foot buffer adjacent

to wetlands; to maintain a large portion of the 58 acres in its naturally-

vegetated state and not to seek permission to develop any of the DEP

"jurisdictional wetlands" adjacent to Apalachicola Bay. Thus, all development

will be on uplands without any permitting sought or development in wetlands and

waters of the State.

Character of Prior Development Approvals

10. In the 1985 amendment to the 1977 DO, the County approved the mixed-

use development of 352 multi-family units on 76.5 acres and a hotel conference

center of 386 hotel units on 11 acres. The 1987 amendment approved by the

County re-affirms a permitted development of the 352 multi-family units on 76.5

acres, and includes a resort-convention center/hotel with 250 units, a

marina/motel with 40 units, and a "harbor house", consisting of 60 units, as

well as the other authorized development. Additionally, the County approved,

and there was constructed in the early 1980's, two projects in the commercial

district in the center of the Island: The Villas of St. George, with a density

of approximately 16.6 multi-family units per acre, and the Buccaneer Inn, with a

density of approximately 44 hotel/motel units per acre. On September 2, 1981,

the County approved a mixed-use development in the Sunset Beach Commercial Area

in close proximity to the Bay, consisting of 252 multi-family residential units

and 150 motel units, a density of nine multi-family units per acre, and 25

hotel/motel units per acre. Additionally, the Respondent recently authorized

single-family residential units in this area.

11. The Buccaneer Inn, the Villas of St. George, and the Sunset Beach

development all have more dense development than Resort Village would have, with

a higher percentage of impervious surface, leaving very little natural

vegetation. The Respondent recently approved and took an active role in

encouraging and facilitating residential developments served by aerobic septic

systems in the commercial district in the center of the Island. It did so by

granting a variance for setbacks and an easement for waste water purposes. The

densities for these developments are 4.3 residential units per acre, greater

than the 3.9 residential units per acre the Petitioners have voluntarily imposed

as a restriction on their property.

Reliance on Prior Approvals

12. The Petitioners, prior to acquiring the property, studied and

researched the public records of Franklin County d d n a s t n e m u i c d r e h t o d n a  o d

considerable investigation to become familiar with the 1977 DO, as well as the

1985 and 1987 amendments and what was allowed pursuant to those amendments.

Additionally, the Petitioners had conversations with Alan Pierce, the Franklin

County Planner, concerning the development of their property both prior to and

after purchasing the property. In one conversation with Mr. Pierce prior to

purchase, the Petitioners were advised by Mr. Pierce that in order to develop

the Resort Village concept, the Petitioners would be better advised to acquire

"commercially-designated" property within the Plantation, instead of trying to

get single-family lots re-zoned. There is no evidence that the Petitioners were

placed on notice by any documents or communication from Franklin County

officials that they would not be able to develop the Resort Village proposal on

their property.

13. After purchasing the property, the Petitioners continued communicating

with Mr. Pierce and other Franklin County officials. Mr. Pierce was aware that

the Petitioners were expending considerable resources in attempting to secure

the necessary government permits and approvals, as well as doing market

research, real estate development planning, and other activities related to the

parcel in question. The Petitioners expended in excess of $500,000.00, as a

result of their efforts in the preparation for development of the Resort

Village, including fees to engineers, attorneys, architects, and various

environmental specialists and consultants, as of December 1993.

Development Review Process Under the 1977 Development Order

14. The 1977 DO provides that it "is consistent with the local land

development regulations of Franklin County, Florida." The DO contains

"conceptual land plans", which are incorporated and made a part of the DO. The

conceptual land plans are contained in "Exhibits A-F" to the 1977 DO. Two of

the exhibits, "Exhibit A" and "Exhibit D", contain the conceptual plans for the

development of the Petitioners' Property. The 1977 DO does not expressly set

forth the specific densities for development of the Petitioner's Property, but

the intensity of the contemplated development for a portion of the Petitioner's

Property is shown on "Exhibit B" to the 1977 DO, as further described above.

15. If the Petitioners had not sought an amendment to the 1977 DO to

include multi-family use, they would have simply submitted a specific site plan

to the Respondent "for review and approval". Upon approval of the site plan,

the Respondent would automatically re-zone the property as applicable. The

automatic re-zoning of the property was re-confirmed at the Respondent's June 8,

1981 board meeting. See, Petitioners' Exhibit 15, page 3, in evidence.

16. If at the time the site plans are approved, state or federal approvals

are still necessary, the Respondent is required to cooperate with the

Petitioners in obtaining those approvals, as long as substantial, adverse data

is not developed with regard to environmental damage and as long as cooperation

does not require the expenditures of monies by the County. Since the Petitioner

sought an amendment to the 1977 DO, pursuant to Section 380.06(19), Florida

Statutes, to allow multi-family uses, the Petitioners address these issues as

part of the Chapter 380, Florida Statutes, process, prior to submitting a

detailed site plan.

Franklin County's Development Review Process

17. In order for commercial development to be effective in Franklin

County, a site plan must be submitted for review and approval to the Planning

and Zoning Commission. The Commission checks to insure compliance with setback

requirements, parking requirements, impervious surface area, and other criteria

set forth in Franklin County's ordinances. Information is also provided in the

site plan approval process with regard to the treatment of waste water and the

treatment and detention of storm water. After site plan approval, an applicant

must next obtain any necessary waste water permits from either HRS or DEP,

depending on the size of the project. A storm water permit from DEP must be

obtained and a certificate from the utility system that potable water is

available for the development. After these permits are obtained, an applicant

must submit building plans and a building permit can then be issued. Franklin

County has not adopted a process whereby it independently studies or evaluates

the impact of the DRI. Franklin County relies upon the state permitting and

regulatory process for that data.

Waste Water and Storm Water

18. The 1977 DO specifically addresses "sewage treatment and drainage

control" and requires assurance that the planned development "will not cause

pollution of Apalachicola Bay or other environmental damage". Under the 1977

DO, waste water treatment should be addressed at the site plan stage, which can

occur before any or all of the permitting processes begin. The Petitioners

presented considerable testimony regarding both the pending waste water

treatment permit and the manner in which storm water would be addressed.

19. Waste water will be treated by an advanced waste water treatment

system (AWT). It will be a municipal-type facility with Class I reliability and

will be of a higher quality than any similar facility in Franklin County. The

AWT plant provides the highest level of treatment available for domestic waste

water. It will remove approximately 93 percent of the nitrogen content, 91

percent of the phosphorus, and 97 percent of the bio-chemical oxygen demand in

the waste water effluent. Contrastingly, aerobic septic systems remove

typically 13 percent, 0 percent, and 50 percent of the nitrogen, phosphorus, and

bio-chemical oxygen demand, respectively.

20. The Petitioners propose to build the AWT plant in 30,000-gallon

phases. They will install aerobic septic systems during the first years of

development, until enough waste water is generated to efficiently operate the

AWT plant. This will require a flow of approximately 5,000 gallons per day.

The Petitioners have agreed to start construction on the AWT plant once 5,000

gallons of waste water is being generated and to disconnect all aerobic systems,

once a permit to operate the treatment plant is issued by DEP. The Petitioners

have also agreed not to exceed 10,000 gallons of flow at any time on the aerobic

system.

21. In order to dispose of treated effluent, the Petitioners propose to

use three sub-surface absorption cells. These will be used on a rotating basis

so as to minimize the amount of effluent which will percolate to the ground

water at each location.

22. There is considerable testimony regarding the importance of Nick's

Hole to the Apalachicola Bay ecosystem. The Petitioners' property does not

actually border Nick's Hole, but is in close proximity to it. The relative

location of Nick's Hole and the Petitioners' property is depicted on Exhibit 9

in evidence. Unrefuted testimony by the Petitioners' expert witnesses, Gary

Volenec and Steve Leitman, established, through their ground water study, that

none of the waste water from the Resort Village development would migrate to

Nick's Hole or to the marshes adjacent to it. Twenty percent of the ground

water, at most, might eventually migrate toward the marsh and the Pelican Point

Bay area, east of the airport and north of the Petitioners' property, with at

least 80-90 percent of the treated waste water migrating toward the Gulf, in

accordance with the ground water gradient in the area of the Petitioners'

property. These studies did not require a specific site plan in order to be

conducted accurately. Rather, they depend solely on the location of the

absorption fields, as proposed, and the flow of the ground water, as revealed by

the ground water study.

23. It must be remembered that DEP, through its permitting process, has

ultimate control over the specific location of the absorption fields, their

configuration, construction, and manner of use and operation, as is true of the

waste water plant itself. After the waste water plant is constructed, the

underground water, as part of the operating permit of the plant, will be

constantly monitored, as will the operation of the plant. If problems arise,

constituting adverse effect or the potential thereof on the ground water or

surrounding surface waters, which cannot be immediately remedied, the DEP has

the authority to shut the plant down.

24. The volume of water flowing from the Apalachicola River into the Bay

is approximately a minimum of 16 billion gallons per day. The average daily

rainfall on Pelican Point Bay and the surrounding wetlands is 296,000 gallons,

if apportioned on a daily basis. The amount of water flowing in and out of the

Pelican Point Bay/Nick's Hole area with each tidal exchange is approximately 72

million gallons. If it be assumed that the maximum amount of treated waste

water, which would be 120,000 gallons per day if development were effected

without the proposed multi-family amendment (which would reduce that maximum

amount to 90,000 gallons per day) and the maximum percentage of migration to

Apalachicola Bay (20 percent) occurred, the maximum amount of water eventually

getting into Apalachicola Bay after treatment would be 24,000 gallons per day.

However, if the multi-family amendment were adopted and the Petitioners'

proposed development proceeded accordingly, the maximum volume of water

generated from Resort Village would be reduced to 18,000 gallons per day (90,000

GPD x 20 percent = 18,000).

25. The Intervenor expressed much concern that the sewage treatment plant

would be located in a flood-prone area. This is not relevant concerning the

addition of multi-family development to the permitted development on the

property since, even if no amendment were sought and development proceeded as

presently allowed under the 1977 DO, as amended, a waste water treatment plant

treating as much as 120,000 gallons per day would be necessary. In any event,

however, the Petitioners would be required to address such flooding concerns as

part of the permitting process regarding waste water and storm water permits

sought from the DEP at the appropriate time. Further, the critical components

of the plant, including absorption cells, are required by the DEP to be well-

elevated so that they can withstand the most severe storm events.

26. The Petitioners' expert witness, Randall Armstrong, testified as to

how Resort Village's storm water plan would be designated and permitted. Since

the Petitioners' property is on Apalachicola Bay, a Class II designated water,

as well as an outstanding Florida water, the DEP has specific storm water

requirements which have to be met before a permit can be issued. Although the

detail or design for the storm water system is dependent on formal site plans,

it is represented by the Petitioners that all storm waters will be captured,

allowed to percolate into the ground, and that no storm water will be

accumulated and discharged into the waters of the Bay or the Gulf. Ultimate

approval of the amendment by Final Order in this proceeding should be

conditioned on a binding agreement between the parties concerned to that effect.

However, for areas that will remain in their natural state, even after

development on the property, the flow patterns for storm water will not change.

27. The Respondent and the Intervenor are also concerned that storm water,

under certain conditions, might flow from the Petitioners' property across the

airport and into the marshes adjacent to Nick's Hole, even in the present,

undeveloped condition. If that, in fact, occurs, the development of Resort

Village will not alter that, for areas which remain in their natural state. If

development occurs near or adjacent to the airport, any storm water will be

captured and treated accordingly under the Petitioners' voluntary proposal, in

any event.

28. According to testimony in the record, DEP, in both its waste water and

storm water permitting and regulatory processes, is keenly aware and sensitive

to the location of the Petitioners' property and the importance of activity on

that property to the health of Apalachicola Bay. The Petitioners' will not be

able to get a building permit to develop the property until the Petitioners have

both the waste water and storm water permits. The granting of either of those

permits will require extensive scientific investigation and demonstration of

reasonable assurances that the various environmental concerns, in terms of water

quality, the public interest and cumulative impacts of such projects, as

provided in the pertinent provisions of Chapter 403, Florida Statutes, and

attendant rules, will not be adversely affected. In any event, the addition of

multi-family-type development will have no adverse effect on the issues

concerning sewage and waste water treatment and will actually result in a

reduction in the conceivable, maximum daily flows versus the development, in the

commercial sense, already permitted under the 1977 DO, as amended.

Flooding Issues

29. The Respondent and the Intervenor also expressed concerns about

potential flooding at the St. George Island site in question. While Richard

Deadman indicated in his testimony that DEP had concerns regarding development

of the Petitioners' property, such as flooding on St. George Island, Mr. Deadman

stated that his concerns were passed on to others in DEP and would be taken into

account in the relevant permitting processes. The Respondent and the Intervenor

also expressed concerns regarding the impact of the development on hurricane

evacuation and traffic densities. The Respondent and the Intervenor's witness,

Mike Donovan from the ARPC, testified that the counsel's study showed that

Resort Village would have no significant impact on the regional road system,

which includes the bridge from the mainland to St. George Island.

Potable Water Issues

30. The Respondent and the Intervenor also were concerned regarding the

availability of potable water. Based upon the testimony of the Intervenor's

witness, John Kintz from DEP, the capacity of potable water for the utility on

St. George Island is very near, if not already at, capacity. Clearly, for any

additional development to occur within the area served by the St. George Island

water utility, whether multi-family, single-family, or commercial development,

the capacity of the utility will have to be increased. If not, water hookups

will not be available; and, therefore, building permits cannot be granted in

Franklin County.

31. The water utility does have an application pending at the NWFWMD to

increase its water supply capacity. Fees paid by the Resort Village to the

utility will assist it in providing for additional water capacity expansion.

The Petitioners already have purchased 15,000 gallons capacity per day from the

utility which is enough potable water to serve the project in the first several

years of development. The Petitioners will continue purchasing potable water

capacity on an as-needed basis as long as it is available and when it becomes

available. In any event, if potable water is not adequately available, building

permits cannot be granted and the development cannot proceed.

32. In terms of the lower densities, projected sewage flows, restrictions

on parking and impervious surfaces, and the other factors delineated in the

above Findings of Fact, the Resort Village development will have less adverse

impact than the development already allowed by the 1977 DO, as amended, for the

site in question. Thus, the Resort Village, as proposed by the Petitioners will

not constitute a substantial deviation from the types of development activities

permitted by that 1977 DO, as amended.

33. Although concerns were expressed by a number of witnesses, and by the

Respondent and the Intervenor, concerning the potential pollution of

Apalachicola Bay or other environmental damage to the Bay and its ecosystem, no

preponderant testimony or evidence was presented which could establish that the

development of Resort Village would cause such pollution or environmental

damage. Such concerns will be thoroughly addressed in the permitting and

regulatory processes, for the various permits referenced above, in any event.

The Resort Village, however, was demonstrated to have no additional adverse

impact on any waters, wetlands or ground water subject to state regulation, in

addition to or different from that posed by the uses already permitted by the

1977 DO, as amended.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes.

35. Pursuant to Section 380.07(2), Florida Statutes, a development order

issued by a local government in a Chapter 380, Florida Statutes, proceeding can

be appealed to FLAWAC, which, under Section 380.07(5), Florida Statutes, is

required to hold a hearing pursuant to the provisions of Chapter 120, Florida

Statutes. This contemplates that FLAWAC (or the undersigned Hearing Officer)

will conduct a de novo evidentiary hearing pursuant to Section 120.57, Florida

Statutes. Thus, local zoning provisions previously reviewed by certiorari to

the circuit courts were shifted by the legislature, through the enactment of

Chapter 380, Florida Statutes, to the FLAWAC. See, Manatee County v. Estech

General Chemical Corporation, 402 So.2d 1251, 1253 (Fla. 2d DCA 1981), review

denied, 412 So.2d 468 (Fla. 1982); Fairfield Communities v. Florida Land and

Water Adjudicatory Commission, 522 So.2d 1014, and Transgulf Pipeline v. Board

of County Commissioners, 438 So.2d 879.

36. Further, FLAWAC has a policy-making role in this process by the

express statutory empowerment under Section 380.07(4), Florida Statutes, "to

grant or deny permission to develop pursuant to Chapter 380 standards, and to

attach conditions and restrictions to its decisions." Fairfield Communities v.

Florida Land Water Adjudicatory Commission, Id. at 1014.

37. The local government, Franklin County, is protected in this process

since:

if the local government entity conducts its

hearing with adequate procedural safeguards,

such a hearing would presumably be considered

full and complete by the Commission or its

hearing officer and admitted into evidence at

the Section 120.57 hearing. As such, the record

of the local government hearing could provide

competent, substantial evidence to support findings

of fact made by the Commission or its hearing

officer notwithstanding other evidence which might

be adduced by the applicant at the Section 120.57

hearing.

Transgulf Pipeline v. Board of County Commissioners, Id. at 879. No cross-

examination was allowed at the Respondent's December 7, 1993 meeting.

Therefore, the record of that "hearing" does not reflect the provision of due

process, procedural safeguards and is not admissible, competent, substantial

evidence in this proceeding. The transcript of that December 7, 1993 Board of

County Commission meeting, for the decision in dispute, is not in evidence.

38. Regardless of how the local government hearing is conducted, the local

government has all of the rights provided to any party in a Section 120.57,

Florida Statutes, proceeding. This includes the right to have witnesses attend,

conduct cross-examination, make legal objections, and to present whatever

evidence it deems appropriate subject to the normal admissibility standards.

Scharrer v. Department of Professional Regulation, Division of Real Estate, 536

So.2d 320 (Fla. 3d DCA 1988), review dismissed, 542 So.2d 1334; and Chestnut v.

School Board of Hillsborough County, 378 So.2d 1237 (Fla. 2d DCA 1979).

Vested Rights Issue

39. Statutory Vesting: The 1977 DO was entered pursuant to Chapter 380,

Florida Statutes, and is, therefore, a DRI. Vested rights under a DRI are

specifically recognized in Chapter 163, Florida Statutes, at Section

163.3167(8), Florida Statutes. That section provides that:

Nothing in this act shall limit or modify the

rights of any person to complete any development

that has been authorized as a development or

regional impact pursuant to chapter 380 . . .

These vested rights are valid with regard to any "consistency" or "concurrency"

requirements of Franklin County under Section 163.3194, Florida Statutes, or

Section 163.3202, Florida Statutes. See, American Newland Associates v. State

Department of Community Affairs, 11 F.A.L.R. 5205 (Fla. Dept. of Community

Affairs 1989). See, also, Huckleberry Land Joint Venture v. State Department of

Community Affairs, 11 F.A.L.R. 5706 (Fla. Dept. of Community Affairs 1989).

40. The Department of Community Affairs (DCA), which has jurisdiction

pursuant to Section 120.565, Florida Statutes, to issue declaratory statements,

interpreting Chapter 163, Florida Statutes, issued its opinion in In the Matter

of: Petition for Declaratory Statement by Sarasota County, 14 F.A.L.R. 772, 775

(Fla. Dept. of Community Affairs 1992), as follows:

. . . it is the Department's opinion that, under

Section 163.3167(8), Florida Statutes, develop-

ment rights specifically granted in a DRI

development order issued prior to the effective

date of a revised comprehensive plan are vested

from the concurrency and consistency provisions

of Chapter 163, Florida Statutes.

41. This legislative grant of vested rights is in addition to vested

rights afforded to property owners under substantive Florida law:

In applying Section 163.3167(8), Florida Statutes,

local governments should bear in mind that although

this vesting provision is statutory in nature, it

does not replace the common law doctrine of equitable

estoppel. Equitable estoppel still remains a remedy

available to owners and developers which local

government should consider on a case-by-case basis.

42. Section 163.3167(8), Florida Statutes, has been interpreted to

"grandfather" or "vest" a developer's right to complete his project as

originally approved by the local government under its existing comprehensive

plan and land development regulations. See, Gulfstream Development Corporation

v. Florida Department of Community Affairs, 11 F.A.L.R. 1018 (Fla. Dept. of

Community Affairs 1988). These rights remain "without the further necessity of

the commencement and good-faith continuation of his development". Id. at 1024.

The vested rights remain even if a development order is amended since:

The issuance of an amended development order

does not abridge the vested aspect of the

provisions of the development order that were

not changed by the amendment. The rights granted

under those unchanged portions of the development

order would still be protected by Subsection

163.3167(8). Id. at 1026.

See, also, General Development Corporation v. State Department of Community

Affairs, 11 F.A.L.R. 1032 (Fla. Dept. of Community Affairs 1988). Thus, the

Petitioners have been shown to be statutorily vested to develop their property

under the 1977 development order.

43. Common Law Vesting-Equitable Estoppel: The substantive law of vested

rights is based upon the premise that government must deal fairly with citizens.

Daniell v. Sherrill, 48 So.2d 736 (Fla. 1950). The substantive law in Florida

employs the term "vested rights" and "equitable estoppel" interchangeably. See,

City of Key West v. R.L.J.S. Corp., 537 So.2d 641, 644 (Fla. 3d DCA 1989), fn.

4. This rule of law often repeated by the Florida courts concerns whether a

property owner: (1) in good-faith reliance; (2) upon an act of government; (3)

has made such a substantial change in position or incurred such extensive

obligations and expenses that it would be inequitable and unjust to destroy the

rights he has acquired. See, Hollywood Beach Hotel Co. v. City of Hollywood,

329 So.2d 10 (Fla. 1976); City of Key West v. R.L.J.S. Corp., supra.; City of

Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983); Board of County

Commissioners of Metropolitan Dade County v. Lutz, 314 So.2d 815 (Fla. 3d DCA

1975); Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA

1975); City of North Miami v. Margulies, 289 So.2d 424 (Fla. 3d DCA 1974).

Thus, under these decisions, if vested rights are established by a landowner,

local government is equitably estopped from enforcing a change in zoning

regulations or other ordinances which would destroy or limit the landowner's

vested rights.

44. The Petitioners herein have expended in excess of $500,000.00 beyond

the purchase price of the property in attempting to develop the property,

pursuant to the 1977 DO. This sum is well in excess of the $8,000.00 and

$28,000.00 amounts expended in Project Home, Inc. v. Town of Astatula, 373 So.2d

710 (Fla. 2d DCA 1978); and Bregar v. Britton, 75 So.2d 758 (Fla. 1954),

respectively, which sums were deemed sufficient by the courts therein to secure

the landowner's vested rights.

45. The 1977 DO does not establish densities or intensities of use. Also,

the Petitioners have not made substantial physical improvements to the

Petitioners' Property. However, the absence of specific approvals, such as

building permits and the lack of any physical improvements to property, do not

preclude vesting of development rights. See, Town of Longboat Key v. Mezrah,

467 So.2d 488 (Fla. 2d DCA 1985); Town of Largo v. Imperial Homes Corporation,

supra. In the case of Centervillage Limited Partnership v. City of Tallahassee,

Case No. 90-6431VR (DOAH, December 27, 1990), the Hearing Officer specifically

rejected the city's argument that the property owner was required to establish

that it had received specific density or intensity of use approval from the city

to be entitled to a vested rights determination. The Hearing Officer determined

that preliminary environmental permits and a conceptual agreement were

sufficient to establish the vested right to develop the property as proposed by

the owner.

46. The Petitioners have established each element of common-law vesting

and the Petitioners have the right to develop the property subject only to the

limitations set forth in the 1977 DO and subject to any required permitting by

regulatory agencies in which the multiple concerns expressed in these

proceedings by the Respondent and the Intervenor would doubtless be addressed at

length.

47. The 1977 DO established specific uses, and "Exhibit D" to that Order

reflects that very high densities and intensities of uses were contemplated.

The Petitioners presented expert testimony that the following densities could be

calculated from "Exhibit D" to the 1977 DO: 525-675 hotel rooms; food and

beverage outlets and other amenities associated with the hotel rooms; 65,000 to

82,000 square feet of retail space; and 685 surface parking spaces. These

figures do not include that portion of the Petitioners' Property north of

Leisure Lane, which is also approved for commercial development.

48. Commercial development is limited in the 1977 DO by allowing

commercial use of only 200 of the total 1,200 plus acres encumbered by the DO

and by requiring assurances that any planned development "will not cause

pollution of Apalachicola Bay or other environmental damage". Therefore, the

maximum densities and intensities of use for the Petitioners' vested property

are controlled only by the ability to provide reasonable assurances that the

proposed development will not cause such pollution or cause environmental

damage. The factors which are controlling are the uses, densities and

intensities of uses of the proposed development and the infrastructure proposed

to serve the development, which factors are inter-related. By way of example,

the waste water treatment facility proposed by the Petitioners for the Resort

Village will support a higher density and intensity of use than an alternative

treatment facility.

49. The Petitioners' proposed development is a low-density development.

The Petitioners have established that the inclusion of multi-family uses will

result in less impact than a purely commercial development already specifically

authorized under the 1977 DO. The densities and intensities of use have been

voluntarily restricted by agreement with the neighboring property owners'

association, which agreement in its elements should be made binding upon the

parties in the Final Order issued herein. In fact, the densities proposed are

less than the densities currently authorized for commercial and multi-family

developments in Franklin County under its comprehensive plan.

50. Additionally, the Petitioners have agreed to treat waste water by an

advanced waste water treatment system and method and to hold and treat storm

water generated from the development to avoid any discharge from the

Petitioners' Property, as well as to refrain from seeking any permitting or

permission to develop in any state jurisdictional wetlands. The Petitioners

have established in these proceedings that the Resort Village development

proposed will not cause pollution to the Bay or other environmental damage,

subject to the investigation requirements and conditions attendant to obtaining

the storm water and waste water treatment, construction and authorization

permits from the DEP. Therefore, concerning the requested amendment to the 1977

DO, the Petitioners have established their vested right to develop the Resort

Village development, as proposed, subject to obtaining those permits, as well as

site plan approval and the relevant building permits.

51. Substantial Deviation: Pursuant to Subsection 380.06(19), Florida

Statutes, any change to a previously-approved DRI DO, which "creates a

reasonable likelihood of additional regional impact: or creates a regional

impact not previously reviewed," constitutes a substantial deviation and is

required to undergo additional Chapter 380, Florida Statutes, development of

regional impact review. The development proposed by the Petitioners does not

constitute a substantial deviation. As discussed above, the owner is vested

pursuant to the 1977 DO to develop the property commercially with a more intense

and dense type of use. The proposed development is consistent with those vested

rights and does not create any additional impacts. In fact, it would create

less impacts. The only change proposed is the addition of multi-family uses.

The inclusion of multi-family uses in the development, in fact, reduces the

impact of the project. Consequently, the proposed change is not a substantial

deviation.

52. Pursuant to the 1977 DO, the Respondent's approval is required for

multi-family use. However, this requirement must be construed and interpreted

to preclude any arbitrary or unreasonable denial of a request for multi-family

use. See, L.V. McClendon Kennels, Inc. v. Investment Corporation of South

Florida, 490 So.2d 1374 (Fla. 3d DCA 1986); Kies v. Hollub, 450 So.2d 251 (Fla.

3d DCA 1984); and Burger King Corp. v. Austin, 805 F. Supp. 1007 (S.D. Fla.

1992). The Respondent presented no evidence which would justify the denial of

the requested amendment.

53. Although the Petitioners are vested against the consistency and

concurrency requirements of the current Franklin County comprehensive plan, the

proposed development with its multi-family use is actually consistent with the

land use goals of mixed-use development described in that plan. The Respondent

has previously approved the mixed-use development, including multi-family uses

at the Bob Sikes Cut property, which has the same commercial designation as the

Petitioners' Property under the 1977 DO. Additionally, the Respondent has

approved numerous other multi-family uses, as described in the above Findings of

Fact.

54. It is undisputed that the Resort Village, as proposed with the multi-

family use, will be of lesser intensity of use than developing the property

entirely commercial. Thus, it has been shown that there is no reasonable basis

to deny the proposed amendment.

55. Alternatively, the 1977 DO should be interpreted to allow condominium

and multi-family uses within the Plantation Commercial Areas as a "special

exception". The Franklin County zoning ordinance which was in effect in 1977

and the current Franklin County zoning ordinance were admitted into evidence.

Franklin County Zoning Ordinance No. 75-7 provides some understanding of the

section of the 1977 DO entitled "3.B.(v) Plantation Commercial Areas", which

contains a statement that "Condominiums and multi-family residential structures

shall not be allowed in any of the areas shown by Exhibit 'A' without the prior

consent of the Board". The Petitioners' Property is a part of the area shown by

Exhibit A.

56. As shown in the above Findings of Fact, the commercial zoning in

existence at the time of the entry of the 1977 DO authorized condominium and

multi-family residential development as part of the commercial designation for

property on St. George Island. It may reasonably be concluded that Franklin

County intended simply to treat a request to include a multi-family use as a

"special exception". Multi-family uses within the Plantation Commercial Areas

could have easily been precluded under the 1977 DO by simply omitting the phrase

"without the prior consent of the Board".

57. There is a difference between seeking a rezoning of property and

seeking a special exception. "In the case of a special exception, where the

applicant has otherwise complied with those conditions as set forth in the

zoning code, the burden is upon the zoning authority to demonstrate by

competent, substantial evidence that the special exception is adverse to the

public interest." Rural Newtown, Inc. v. Palm Beach County, 315 So.2d 478, 480

(Fla. 4th DCA 1975). Stated another way, "a special exception is a permitted

use to which the applicant is entitled unless the zoning authority determines

according to the standards in the zoning ordinance that such use would adversely

affect the public interest". Id. at 480.

58. Thus, the burden would be on the Respondent to "demonstrate, by

competent substantial evidence presented at the hearing, and made a part of the

record, that the (special) exception requested by Petitioners did not meet such

standards and was, in fact, adverse to the public interest". Irvine v. Duval

County Planning Commission, 495 So.2d 167 (Fla. 1986). There is no competent,

substantial evidence in the record of this proceeding that allowing multi-family

use as a part of the development of the Petitioners' commercially-designated

property would in any way be adverse to the public interest.

59. The Respondent and the Intervenor have expressed numerous concerns

over the impact of the development of the Petitioners' Property. However, the

Respondent cannot deny or limit the development rights based upon

unsubstantiated concerns. For example, the Petitioners would be required to

obtain permits for storm water and waste water treatment facilities and

operations from the DEP, as well as site plan approval from the Respondent. The

Respondent has no separate permitting requirements for storm water or waste

water treatment, and no Franklin County ordinance exists which provides for

standards of review for storm water or waste water facilities and operations.

The Respondent, therefore, has no discretion to deny any development rights

based upon any concerns regarding storm water or waste water treatment. That is

a matter for the review, regulation and permitting authority of the DEP.

60. Local government must promulgate its public policy by virtue of a

duly-enacted ordinance, otherwise, its application would be subject to the

caprice of the local government officials. Southern Co-Op Development Fund v.

Driggers, 696 F.2d 1347 (11th Cir. 1983); Garvin v. Baker, 59 So.2d 361 (Fla.

1952); City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423 (Fla. 2d

DCA 1974). Quoting with approval from the lower court, the Florida Supreme

Court in Garvin v. Baker, supra. at 362, stated:

Should the city desire to effectuate some

sound public policy within its authority,

this should be done by duly enacted ordinances

setting up standards to guide a citizen in

carrying on its affairs. Otherwise, a citizen

could act only subject to the unknown and

uncertain views of a public official or several

public officials, as experienced from time to time.

See, also, Southern Co-Op Development Fund v. Driggers, supra.

61. In the case of City of Naples v. Central Plaza of Naples, Inc.,

supra., the court considered the denial of a special exception to construct

multi-family housing. The city argued, in support of its denial, that the

proposed development would substantially increase traffic and create excessive

demands on utilities and other services. The court held that, as pertinent as

those matters may seem to be, the city did not have the right to consider them

in making the determination. The court stated: "The only criteria upon which

the Council could legally base its decision were those set forth in the

ordinance . . . " Id. at 425.

62. In v . C i t y o f D e l s a d , 5 7 7 S o . 2 d 5 n 9 t e  t h e c a s e o f C n o o n i a l A p a r t m l 3

(Fla. 5th DCA 1991), the landowner submitted site plans to construct apartments

at a density of 13 units per acre. At a city commission meeting, adjoining

landowners voiced opposition and succeeded in getting the city commission to

limit the development to six units per acre. The Fifth District reversed this

action and stated at 597-598:

We agree with the city that project density

is a legitimate concern and go further in stating

that it is a most important concern. But it is a

concern that must be addressed and expressed in

appropriate ordinances. A community should be

developed in accordance with planned action.

Development decisions should not be made in reaction

to an application that relies on an ordinance

establishing a density no longer acceptable to the

majority of the current members of a governing body.

Owners are entitled to fair play; the lands which

may represent their life fortunes should not be

subjected to ad hoc legislation.

63. An owner seeking development approval under a local ordinance who

satisfies the legal requirements of the ordinance is entitled to the approval.

City of Lauderdale Lakes v. Coin, 427 So.2d 239 (Fla. 4th DCA 1983); Broward

County v. Narco Realty, 359 So.2d 509 (Fla. 4th DCA 1978). As stated by the

court in Broward County v. Narco Realty, supra., at 510:

All persons similarly situated should be able

to obtain plat approval upon meeting uniform

standards. Otherwise, the official approval

of a plat application would depend on the whim

or caprice of the public body involved.

64. The Respondent does not have the discretion to deny a site plan

approval based upon policies or concerns which are not included in a duly-

enacted ordinance applicable to the Petitioners' vested property.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence

of record, the candor and demeanor of the witnesses, and the pleadings and

arguments of the parties it is

RECOMMENDED that a Final Order be entered by the Florida Land and Water

Adjudicatory Commission which:

1. Supersedes the January 4, 1994 order in its entirety;

2. Amends the 1977 Development Order to specifically allow multi-family

use for the Petitioners' Property in the manner proposed by the Petitioners;

3. Determines that the amendment to this 1977 Development Order does not

constitute a substantial deviation under Chapter 380, Florida Statutes;

4. Determines that the Petitioners have vested rights to develop their

property at the densities and intensities of use proposed, subject to issuance

of appropriate permits for storm water and waste water treatment construction

and operation, site plan approval by Franklin County, and which incorporates the

voluntary agreements and restrictions entered into by the Petitioners with the

adjoining property owners;

5. Requires Franklin County to follow the same procedures and guidelines

in the site plan approval process and building permit process for development of

the Petitioners' Property as it does for every commercial or multi-family

developments in Franklin County, Florida.

DONE AND ENTERED this 11th day of January, 1995, in Tallahassee, Florida.

___________________________________

P. MICHAEL RUFF

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of January, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2043DRI

Petitioners' Proposed Findings of Fact

The Petitioners' proposed findings of fact are accepted to the extent they

are not inconsistent with those made above by the Hearing Officer. They are

rejected to the extent that they are so inconsistent, as being unnecessary,

immaterial, or not supported by preponderant evidence of record.

Respondent's and Intervenor's Proposed Findings of Fact

The Intervenor's proposed findings of fact have been adopted by reference

by the Respondent.

1-9. Accepted, but not necessarily material to resolution of the issues

presented to the Hearing Officer.

10. Accepted.

11. Rejected, as not entirely in accord with the preponderant weight of

the evidence as developed at hearing.

12-15. Accepted, but not entirely as to materiality inasmuch as this is

a de novo proceeding with resolution of the issues presented dependent upon

evidence adduced at a de novo hearing. These proposed findings are, in essence,

illustrative of the procedural history of this case.

16-30. Accepted, to the extent that they actually constitute proposed

findings of fact, and rejected to the extent that they merely constitute

recitations of testimony. Although they are accepted, the concerns expressed

are not material to the narrow range of issues presented in this proceeding, as

opposed to the permitting proceedings to come concerning the storm water and

waste water construction and operation permits which must be sought from the

DEP. Moreover, the feared impacts which the concerns expressed in proposed

findings of fact 16-30 relate have not been proven by preponderant evidence in

view of the character of the proposed development, the decision by the developer

not to seek permitting or to do any development in jurisdictional wetlands and

in view of the less dense and intense type of development proposed herein versus

that already permitted in terms of commercial designated use already allowed by

the 1977 Development Order. Thus, these proposed findings of fact are largely

irrelevant and immaterial to the issues presented in this particular proceeding.

31-35. Rejected, as constituting largely recitations of testimony,

rather than proposed findings of fact, as being immaterial, in part, to the

specific issues presented for resolution in this proceeding, as delineated in

the above Findings of Fact and Conclusions of Law made by the Hearing Officer

and as subordinate to the findings of fact in these particulars made by the

Hearing Officer. They are largely irrelevant due to the discussion and

conclusions of law made by the Hearing Officer, which are predicated on the

Hearing Officer's findings of fact supported by the preponderant evidence of

record.

COPIES FURNISHED:

Ms. Barbara Leighty

Florida Land & Water Adjudicatory Commission

Executive Office of the Governor

426 Carlton Building

Tallahassee, FL 32301

Mr. Thomas H. Adams

P.O. Box 791

Eastpoint, FL 32328

Al Shuler, Esq.

P.O. Box 850

Apalachicola, FL 32329

L. Lee Williams, Jr., Esq.

P.O. Box 1169

Tallahassee, FL 32302-1169

Mr. Tom Beck

Bureau of Land and Water Management

Department of Community Affairs

2740 Centerview Drive

Tallahassee, FL 32399-2100

Gregory C. Smith, Esq.

General Counsel

Florida Land & Water

Adjudicatory Commission

Office of the Governor

The Capitol, Room 209

Tallahassee, FL 32399-0001

J. Ben Watkins, Esq.

41 Commerce Street

Apalachicola, FL 32320

William J. Peebles, Esq.

306 E. College Avenue

Tallahassee, FL 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

submit written exceptions. Some agencies allow a larger period within which to

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

BEN JOHNSON and COASTAL

DEVELOPMENT CONSULTANTS, INC.

Petitioners,

vs.

BOARD OF COUNTY COMMISSIONERS FLWAC CASE NO. APP 94-O23

OF FRANKLIN COUNTY, FLORIDA, DOAH CASE NO. 94-2043DRI

Respondent,

and

THOMAS H. ADAMS,

Intervenor.

________________________________/

FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Florida

Land and Water Adjudicatory Commission (the "Commission"), On April 11, 1995, on

Petition filed by Ben Johnson and Coastal Development Consultants, Inc.,

pursuant to Rule 42-2.002, Florida Administrative Code, initiating an appeal of

an order issued by the Board of County Commissioners of Franklin County,

Florida, denying Petitioner's Application for Amendment to the St. George Island

Development Order dated September 20, 1977.

On April 12, 1994, the Commission granted a Motion to Intervene filed by

Thomas H. Adams, a landowner adjacent to the property subject to the stated

Development Order. The proceeding was referred to the Division of

Administrative Hearings for a hearing on the merits of Petitioner's claims. A

formal hearing was held on August 22-23 and September 9, 1994, in Apalachicola,

Florida, before hearing officer P. Michael Ruff. The hearing officer issued his

Recommended Order on January 11, 1995.

Subsequent to the hearing and the issuance of the Recommended Order, the

Department of Community Affairs presented its Motion to Intervene, stating its

substantial interest in the outcome of the proceeding as the State land planning

agency. While the Department filed its motion at a late stage in the

proceeding, we grant the motion to intervene noting the importance of the

Department's role in the regional planning and development of this

environmentally sensitive property.

Based upon a review of the record as a whole, the Commission, hereby

rejects the Recommended Order as further specified herein. Therefore the

Commission denies the proposed amendment to the St. George Island DRI

development order.

FACTUAL SETTING

Petitioners are the owners of 58 acres on St. George Island, Florida,

presently designated as commercial under the terms of a development order issued

by Franklin County in 197. The property is part of what has been referred to in

the development order as the Plantation Commercial Area. The property is within

an area which has just recently lost its status as an area of critical state

concern. While there are other areas of property designated as commercial

within the 1200 acres covered by the 197 development order, the order provides

primarily for the development of 900 to 1000 single family residential lots

within the area designated as the "Plantation" on St. George Island. Currently

about one-quarter of those lots have been developed as residential homes. When

the development order was finalized in 19, an exhibit "D" was attached which

partially described the commercial development intended for the Petitioner's

property. Exhibit "D" includes "bubbles" with hand sketched areas labeled

"resort shops," "beach club area," "future commercial," and "possible inn site."

The order itself provides that the Plantation Commercial Area shall include one

or more resort quality hotels or motels with the attendant commercial uses

ancillary to those establishments. The plans for the development of these areas

were indistinct in 197, but the order includes language that the commercial

areas could not be used for the, construction of multifamily units or

condominiums without the prior consent of the County. There is no specific

proposal within the record from which the densities and intensities planned by

the petitioner can be determined. There was also no specific plan showing

proposed densities and intensities before the County at the time they denied

petitioners request.

The hearing officer recommended that this commission enter a final order

which would' allow the Petitioners "to develop their property at the densities

and intensities of use proposed Recommended Order, at page 35. This statement

is made even though the Recommended Order does not contain any description of

the proposed densities and intensities of use. Although the Recommended Order

does describe the densities and intensities of use which, under at least one

interpretation, could be developed under the original 197 DRI development order,

apparently the Petitioners did not propose any specific densities or intensities

of use for approval. The findings of fact made by the hearing officer therefore

are not based upon competent, substantial evidence in the record as to the

densities and intensities planned by the petitioner since such a proposal is not

a part of the record.

Although such imprecision may have passed muster in the infancy of the DRI

process, under presently effective statutes and rules, a proposed change must

specify the location, density and intensity of approved projects.

The portion of the DRI statute which deals with amendments to approved DRI

orders, Section 380.06(19), Florida Statutes (1993), measures proposed changes

by, for example: 50 dwelling units, 75 hotel or motel units, 60,000 square feet

of office development, and similar numerical thresholds for other types of

development. Also, the rule which specifies the form and contents for DRI

orders, Rule 9J-2.025, Florida Administrative Code, requires:

o Copies of development plans or specifications

o If approved, contain a description of the

development which is approved, and specifies

and describes

o Acreage attributable to each use,

o the magnitude of each land use,

o open space,

o areas for preservation,

o structures or improvements to be

placed on the property, including locations,

o other major characteristics of the development

o Compliance and buildout dates.

None of these parameters can be derived from the Recommended Order, or from

the record. Therefore, the Commission cannot know what would be approved by a

final order which simply adopted the Recommended Order.

From this single mistaken factual finding flow the conclusions of law made

by the hearing officer. Since we must find that factual determination-to be

without competent, substantial, record support, we must likewise reject the

conclusions of law respecting vested rights and equitable estoppel. Further, we

find that the conclusions of law equating the developers situation to a "special

exception" in zoning matters, is without support in Florida law.

INTERVENOR' S EXCEPTIONS

Intervenor's exceptions based upon the absence of specific information in

the record to support the hearing officer's conclusions as to the density and

intensity of the planned development are granted for the reason earlier

specified. (See; exceptions to findings number 5, 14, 25, and 33) .

Intervenor's exceptions to findings of fact numbered 15, 3, 12, 22, 26 and 27,

are mooted by the action of the Commission. Intervenor's exceptions to the

conclusions of law are granted to the extent that they assert that the hearing

officer's legal conclusion are premised on his erroneous conclusion that

specific densities and intensities can be gleaned from the evidence found in the

record. All other exceptions to the conclusions of law are found to be moot.

RESPONDENT' S EXCEPTIONS

Respondent's exceptions based upon the absence of specific information in

the record to support findings of specific densities and intensities, are

granted upon the same reasons stated for granting like exceptions filed by

Intervenor. (See: exceptions to findings 5 and 9). Exceptions to factual

findings 10 and 12 are mooted by the action of the Commission. Respondent's

exceptions to the conclusions of law are granted to the extent that they assert

that the hearing officer's legal conclusions are premised on his erroneous

conclusion that specific densities and intensities can be gleaned from the

evidence found in the record. All other exceptions to the conclusions of law

are found to be moot.

CONCLUSION

The Commission, therefore rejects the Recommended Order for the reasons

stated above, and issues this final order denying the proposed amendment to the

St. George Island DRI development order. Pursuant to Section 380.08(3), Florida

Statutes (1993), the following changes in the development proposal will make it

eligible to receive approval:

1. Competent and substantial evidence on

the record pursuant to a public hearing in

Franklin County, to address the change in

land use to condominiums and multifamily

residences.

2. The proposal of a specific plan of

development, which includes the density,

intensity, and location of the proposal, and

also complies with the other requirements in

Chapter 380, Florida Statutes, and Rule 9J-2,

Florida Administrative Code.

3. A sufficient plan and design for an

advanced wastewater treatment facility,

including provisions for monitoring the

impacts of effluent disposal.

4. Limitations on the amount and type of

development which may occur prior to the

construction of the advanced wastewater

treatment facility, so that the facility is

constructed as soon as sufficient flow is

available for treatment.

5. Provisions for providing' potable water

to the development from a central water system

and limitations on the number of temporary wells.

6. Provisions for addressing impacts to

wetlands.

7. Provisions pertaining to stormwater

management and flood control including

limitations on the amount of non-pervious

surface and non-naturally vegetated surface

in the development.

8. Provisions for hurricane evacuation.

9. Elimination of any dock or walkway system to

Apalachicola Bay.

Any party to this Order has the right to seek judicial review of the Order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

Clerk of the Commission, Office of Planning and Budgeting, Executive Office of

the Governor, The Capitol, Room 2105, Tallahassee, Florida 32399-0001; and by

filing a copy of the Notice of Appeal, accompanied by the applicable filing

fees, with the appropriate District Court of Appeal. Notice of Appeal must be

filed within 30 days of the day this Order is filed with the Clerk of the

Commission.

DONE AND ORDERED, this 11th day of April, 1995, in Tallahassee, Florida.

____________________________

ROBERT B. BRADLEY, Secretary

Florida Land and Water

Adjudicatory Commission

FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this

12th day of April, 1995.

_____________________________

Patricia A. Parker

Clerk, Florida Land and Water

Adjudicatory Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to

the following persons by United States mail or hand delivery this 12th day of

April, 1995.

____________________________

ROBERT B. BRADLEY, Secretary

Florida Land and Water

Adjudicatory Commission

Honorable Lawton Chiles Honorable Sandra Mortham

Governor Secretary of State

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Milligan Honorable Bill Nelson

Comptroller Treasurer

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Butterworth Honorable Frank Brogan

Attorney General Commissioner of Education

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Crawford Greg Smith

Commissioner of Agriculture Counsel to Governor & Cabinet

The Capitol The Capitol, Room 209

Tallahassee, Florida 32399 Tallahassee, Florida 32399

David L. Jordan, Esquire Alan Pierce, Director

Dept. of Community Affairs Franklin County Planning

2740 Centerview Drive Post Office Box 340

Suite 138 Apalachicola, Florida 32320

Tallahassee, Florida 32399-2100

Alfred O. Shuler, Esquire

Martha Barnett, Esquire 34 4th Street

Holland & Knight Apalachicola, Florida 32329

Post Office Drawer 810

Tallahassee, Florida 32302 Russell D. Gautier

L. Lee Williams, Jr.

William J. Peebles, Esquire Moore, Williams, Bryant,

306 East College Avenue Gautier & Donohue, P.A.

Tallahassee, Florida 32302 Post Office Box 1169

Tallahassee, Florida 32302

Ben Johnson

Coastal Development Consultants, Tom Beck

Inc. Department of Community Affairs

1234 Timberlane Road 2740 Centerview Drive

Tallahassee, Florida 32312 Tallahassee, Florida 32399-

Inc. 2100

1234 Timberlane Road

Tallahassee, Florida 32312 Honorable Jimmy Mosconis

Chairman

Ed Blanton Franklin County Board of

Apalachee Regional Planning County Commissioners

Council Post Office Box 340

314 East Central Avenue Apalachicola, Florida 32320

Blountstown, Florida 32424

Thomas H. Adams

St. George Island

Post Office Box 791

Eastpoint, Florida 32328