96-004752GM Environmental Confederation Of Southwest Florida, Inc., And Gary Beardsley vs. Collier County And Department Of Community Affairs Status: Closed Recommended Order on Friday, September 26, 1997.

Summary: Comprehensive plan amendment reinstating agricultural exemptions in Big Cypress area of critical state concern not supported by data and otherwise not in compliance

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENVIRONMENTAL CONFEDERATION )

OF SOUTHWEST FLORIDA, INC., )

and GARY BEARDSLEY, )

)

Petitioners, )

)

vs. )

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and COLLIER COUNTY, )

)

Responde nts, ) Case No. 96-4752GM

)

and )

)

BARRON COLLIER PARTNERSHIP; )

COLLIER ENTERPRISES; )

RUSSELL A. and ALIESE P. )

PRIDDY; JOHN E. PRICE, JR.; )

and JAMES E. WILLIAMS, JR.; )

)

Intervenors. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Naples,

Florida, on March 28 and 29, 1997.

APPEARANCES

For Petitioners: Attorney Thomas W. Reese

2951 61st A venue South

St. Petersburg, Florida 33712

For Respondent Department of Community Affairs:

Shaw P. Stiller

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent Collier County:

Ramiro Manalich

Chief Assistant County Attorney

Marjorie M. Student

Assistant County Attorney

Collier County Attorney Office

8th Floor, Administration Building

3301 Tamiami Trail East

Naples, Florida 34112-4902

For Intervenors: C. Laurence Keesey

Young, van Assenderp & Varnadoe, P.A.

SunTrust Building

801 Laurel Oak Drive, Suite 300

Naples, Florida 34018

STATEMENT OF THE ISSUE

The issue is whether proposed amendments to the Collier

County comprehensive plan are in compliance with the criteria of

Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida

Administrative Code.

PRELIMINARY STATEMENT

By Petition for Hearing served September 30, 1996,

Petitioners alleged that the proposed plan amendments adopted by

Respondent Collier County in Ordinance No. 96-41 are not in

compliance with various criteria of Chapter 163, Part II, Florida

Statutes, and Chapter 9J-5, Florida Administrative Code.

The petition raises four issues: whether the proposed plan

amendments are supported by appropriate data and analysis;

whether Chapter 163, Part II, requires Collier County to regulate

agricultural activities; whether the plan, as amended, would deal

with agriculture as a land use, as required by Section

163.3177(6) and Rules 9J-5.006, 9J -5.012, 9J-5.013, and 9J-5.014;

and whether the plan, as amended, would not be in compliance for

the reasons stated in the Objections, Recommendations, and

Comments issued by Respondent Department of Community Affairs.

By Answer and Affirmative Defenses s erved October 21, 1996,

Respondent Collier County asserted that the proposed plan

amendments would merely reinstate exemptions provided by Rule 28-

25.004, Florida Administrative Code, for agricultural activities

in the Big Cypress Area of Critical State Concern and that Rule

28-25.014 requires comprehensive plans affecting the critical

area to support achievement of the Big Cypress Area rules.

By Petition to Intervene served November 8, 1996,

Intervenors sought leave to intervene to defend the proposed plan

amendments. The administrative law judge granted the Petition to

Intervene by order entered February 11, 1997.

At the hearing, Petitioners called six witnesses and offered

into evidence eight exhibits. Respondent Collier County called

two witnesses and offered into evidence eight exhibits.

Respondent Department of Community Affairs called one witness and

offered into evidence one exhibit. Intervenors called three

witnesses and offered into evidence four exhibits. The parties

jointly offered three exhibits. All exhibits were admitted.

The court reporter filed the transcript on May 15, 1997.

FINDINGS OF FACT

I. Background

1. Located in southwest Florida, south of the

Caloosahatchee River and southeast of Lake Okeechobee, Collier

County comprises about 2000 square miles or 1.28 million acres.

The County borders the Gulf of Mexico on the west, Lee and Hendry

counties on the north, Broward and Dade counties on the east, and

Monroe County and the Gulf of Mexico on the south.

2. Contiguous trac ts of government-owned land occupy much

of the County, especially the southeast portion of the County.

These tracts include the Big Cypress National Preserve,

Everglades National Park, Fakahatchee Strand State Preserve, Ten

Thousand Islands Aquatic Preserve, Collier Seminole State Park,

and, at the northwest corner of these public holdings, the

Florida Panther National Wildlife Refuge.

3. The area that is the subject of the present case is the

Big Cypress Area of Critical State Concern (Big Cypress). The

Big Cypress contains about 931,000 acres, of which about 778,000

are in Collier County. This represents about 60 percent of the

County. Encompassing nearly all of the government-owned land

identified in the preceding paragraph, as well as smaller areas

of privately owned land, the Big Cypress will eventually extend

to about 92 percent of the County.

4. On July 23, 1996, the Collier County Board of County

Commissioners adopted Ordinance No. 96-41. The ordinance would

amend the future land use element (FLUE) of the comprehensive

plan (as amended, the Plan) of Respondent Collier County

(County).

5. Petitioner Gary L. Beardsley (Beardsley) is an

environmental consultant who has worked in Collier County since

1984. He appeared before the Collier County Board of County

Commissioners when the Board was considering the adoption of the

plan amendments.

6. Petitioner Environmental Confederation of Southwest

Florida, Inc. (ECOSWF) is a confederation of about 50

organizations in Collier, Lee, Hendry, Charlotte, Sarasota, and

DeSoto counties. Through its representative, Beardsley, ECOSWF

appeared before the Collier County Board of County Commissioners

when the Board was considering the adoption of the plan

amendments.

7. Intervenors Barron Collier Partnership and Collier

Enterprises are general partnerships. Intervenors Russell A. and

Aliese Priddy; John E. Price, Jr.; and James E. Williams, Jr. are

residents of, and maintain their primary places of business in,

Collier County. Intervenors own over 56,000 acres in the Big

Cypress. Their land is zoned agricultural, and they engage in

active agricultural activities on much of this land.

8. Barbara Cowley, as representative of Intervenors,

submitted comments to the Collier County Board of County

Commissioners while the Board was considering the plan

amendments.

II. Plan Provisions

9. The challenged plan amendments would reinstate three

agricultural exemptions from land-use restrictions otherwise

imposed by the Plan upon agricultural activities in the Big

Cypress. The land-use restrictions presently in effect limit

site alterations, drainage, and structural installations in the

Big Cypress with no exemption for agricultural activities.

10. The Plan originally exempted agricultural activities

from the prohibitions against site alterations, drainage, and

structure installations in the Big Cypress. In 1991, when

adopting its land development regulations, Collier County amended

the Plan to eliminate these agricultural exemptions in the Big

Cypress. Adopting a recommendation of a citizen advisory

committee, Collier County reasoned that “agricultural uses are

intensive uses which alter the land significantly and should be

regulated with regard to the site alteration, drainage, and

structure installation requirements as other land uses are within

the Critical Area.”

11. Five years later, Collier County decided to readopt the

original agricultural exemptions in the land development

regulations and the Plan. A fourth plan amendment in the

adoption ordinance affects land uses outside the Big Cypress; it

is restated below, but Petitioners have challenged only the three

amendments reinstating the original agricultural exemptions.

12. The proposed plan amendments would change the FLUE.

Following the FLUE goals, objectives, and policies, the FLUE

provides detailed explanations of the FLUE designations.

Although not in the form of goals, objectives, and policies,

these explanations are operative provisions of the Plan.

13. The proposed plan amendments woul d revise the

explanatory section entitled, “Area of Critical State Concern

Overlay” (Overlay). The Overlay applies to land uses in the Big

Cypress.

14. As originally adopted, the Plan required that all

“development orders” comply with Chapter 27F-3, Florida

Administrative Code, which regulated activities in the Big

Cypress. (Chapter 28-25 has since superseded Chapter 27F-3.) As

amended in 1993, the Plan now provides that development orders in

the Big Cypress must comply with the rules of Chapter 27F-3 or

the Overlay provisions, whichever are more restrictive.

15. Overlay Section A addresses site alterations, Overlay

Section B addresses drainage, and Overlay Section D addresses

structure installations.

16. Overlay Section A.1 provides:

Site alterations shall be limited to ten

percent of the total site size, and

installation of nonpermeable surfaces shall

not exceed 50 percent of any such area.

However, a minimum of 2,500 square feet may

be altered on any permitted site.

17. The original agricult ural exemption for site

alterations was contained in Overlay Section A.8, which provided:

“This rule [i.e., the Overlay provisions governing site

alterations] shall not apply to site alterations undertaken in

connection with the agricultural use of land or for the

conversion of land to agricultural uses.” The proposed plan

amendments would readopt this original language.

18. The plan amendment not challenged by Petitioners

eliminates the percentage limitation for site alterations for

conservation purposes. The unchallenged plan amendment states

(new language underlined and repealed language stricken through):

For land zoned agricultural Estates, outside

of the Area of Critical State Concern, and

identified as Southern Golden Gate Estates in

Goal 2 of the Golden Gate Area Master Plan,

that is engaged in or is proposing bona fide

agricultural use(s), site alteration

percentage limits may be adjusted for site

alteration activities designed for

conservation and/or environmental purposes as

set forth in an environmental impact

statement approved by the Board of County

Commissions. Such site alteration activities

include: (i) prescribed fires and associated

firebreaks as approved by the Florida

department of forestry; (ii) removal and

control of listed exotic plant species; (iii)

native habitat occurring plant species; (v)

[ sic ] restoration of historical hydroperiods;

and (vi) other activities designed for

conservation and environmental purposes

reviewed on a case by case basis.

19. Overlay Section B address es drainage in the Big

Cypress. Section B.2 requires new drainage facilities to release

water

in a manner approximating the natural local

surface flow regime . . . either on-site or

to a natural retention or filtration and flow

area. New drainage facilities shall also

maintain a groundwater level sufficient to

protect wetland vegetation through the use of

weirs or performance equivalent structures or

systems. Said facilities shall not retain,

divert, or otherwise block or channel the

naturally occurring flows in a strand,

slough, or estuarine area.

20. Originally, Section B.4 provided: “This rule shall not

apply to drainage facilities modified or constructed in order to

use land for agricultural purposes or to convert land to such

use.” The proposed plan amendments would readopt this original

language.

21. Overlay Section D addresses the installation of

structures in the Big Cypress. Section D.1 requires that the

“[p]lacement of structures shall be accomplished in a manner that

will not adversely affect surface water flow or tidal action.”

22. Originally, Section D.3 provided: “This rule shall not

apply to structures used or intended for use in connection with

the agricultural use of the land.” The proposed plan amendments

would readopt this original language.

23. Goal 1 of the Conservation and Coastal Management

Element (Conservation) states: “The County shall continue to plan

for the protection, conservation, management and appropriate use

of its natural resources.”

24. Conservation Object ive 1.1 states:

By August 1, 1994, the County will complete

the development and implementation of a

comprehensive environmental management and

conservation program that will ensure that

the natural resources, including species of

special status, of Collier County are

properly, appropriately, and effectively

identified, managed, and protected. . . .

25. The FLUE also contains an overlay for areas of

environmental concern. However, the only significance of this

overlay is that the County promises later to adopt land

development regulations governing development in such areas. As

a Plan provision, this overlay does not directly protect any

natural resources.

26. The Plan contains definitions

to clarify terms used in the Collier County

Comprehensive Plan and not to establish or

limit regulatory authority of other agencies

or programs. Some definitions have been

changed from those found in Chapter 163,

Florida Statutes to reflect local usage.

27. Paragraph 64 of the definitions defines “development”

as the “act, process, or result of placing buildings and/or

structures on a lot or parcel of land or clearing and/or filling

of land.”

28. A “note” at the end of the explains the meaning of

“properly,” “appropriate(ly),” and “effective(ly).” The note

explains that these words are used

to allow the Board of County Commissioners

flexibility in its decision making process

for the issuance of development orders . . ..

Because several areas of this plan identify

future studies and/or programs, flexibility

was reserved by the Board of County

Commissioners until these studies and

programs have been completed and specific

statements could be developed for inclusion

in the Growth Management Plan through the

amendment process.

III. DCA Review of the Proposed Plan Amendments

29. The County transmitted the proposed plan amendments to

Respondent Department of Community Affairs (DCA) to determine

whether they are in compliance, as required by Section

163.3184(1)(b).

30. By Objections, Recommendations, and Comments (ORC)

issued February 9, 1996, DCA announced objections that, if not

addressed, could have provided the basis for a determination that

the plan amendments were not in compliance.

31. The ORC contends that the plan amendments are not

supported by data and analysis. The ORC states that Collier

County did not provide any data and analysis to “justify

reinstatement of the agricultural exemptions.” The ORC

recommends that the County describe the conditions that have

“occurred or changed to warrant reinstatement of the agricultural

exemptions” and “consider and assess the practicality of allowing

less than 100 percent clearing in areas where significant natural

resources occur or could be adversely affected.” The ORC notes

that Collier County provided no analysis of the environmental

impacts that could result from reinstating the agricultural

exemptions.

32. The ORC contends that the plan amendments are

internally inconsistent. The ORC explains that reinstatement of

the agricultural exemptions creates a “potential for loss

(through clearing activities) of natural resources such as

wetlands and listed species['] habitats.” The ORC questions the

consistency of the reinstatement of the agricultural exemptions,

with the attendant loss of natural resources, with Conservation

Goal 1 and Objective 1.1. The ORC suggests that the County

consider additional protection from agricultural uses for

areas within the Big Cypress that contain “significant natural

resource areas.”

33. The ORC contends that the pla n amendments are

inconsistent with Goal 8 and Policy 8.10 and Goal 10 and Policies

10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan, as

set forth at Section 187.201, Florida Statutes.

34. The ORC contains the comments of various state and

regional agencies, including the Southwest Regional Planning

Council, Department of Environmental Protection (DEP), and South

Florida Water Management District (SFWMD).

35. The Southwest Regional Planning Council determined that

the plan amendments were consistent with the Strategic Regional

Policy Plan of the Southwest Regional Planning Council and

recommended that Collier County, SFWMD, or another entity monitor

the impacts in the Big Cypress of the agricultural activities

that would be permitted by the amendments.

36. DEP noted that Collier County had not analyzed the

impact of the readoption of the agricultural exemptions on lands

designated for agricultural use. DEP mentioned that

agriculturally designated lands may include sensitive habitats

used by threatened or endangered species and thus “deserve a

special classification.” DEP also linked agricultural practices

in the area to problems in water quality and quantity, as well as

disturbed hydroperiods. For these reasons, DEP suggested that

the County designate appropriate lands as Conservation and enlist

DEP’s assistance in forming stewardship alliances with landowners

in the Big Cypress to preserve these natural resources.

37. SWFWMD commented that it does not exempt most

agricultural activities from its Environmental Resource

Permitting requirements. But SWFWMD added that the “site

alteration and drainage regulations of the . . . Overlay

represent a valuable addition.”

38. The County did not revise the proposed plan amendments

after receiving the ORC. Explaining the County’s position, a

staff memorandum dated March 4, 1996, asserts that the proposed

amendments are supported by data and analysis because the

amendments achieve consistency with Chapter 28-25, do not prevent

the County from adopting land development regulations to protect

the affected natural resources, and affect a small amount of

undeveloped land (14 of 81 square miles) as compared to the large

amount of land owned or about to be owned by public entities.

39. The March 4, 1996, memorandum disclaims any

inconsistency between the proposed plan amendments and

Conservation Goal 1 and Objective 1.1. In support of this claim

the memorandum cites Policy 1.1.2, which calls for the adoption

of land development regulations incorporating the Conservation

goals, objectives, and policies; Policy 1.1.5, which is to avoid

duplication of effort with private and public agencies; and

Policy 1.1.6, which is to balance the benefits and costs of the

County conservation program between the public and private

sectors.

40. On September 9, 1996, DCA published in the Naples Daily

News its Notice of Intent to find the proposed plan amendments in

compliance.

41. On September 30, 1996, Petitioners filed their petition

challenging the proposed plan amendments.

IV. Data and Analysis

42. In its proposed recommended order, Collier County cites

as supporting data and analysis the same items asserted in the

March 4, 1996, memorandum. In isolation, these items offer

little, if any, support for the readoption of the agricultural

exemptions. In the context of the readily available data and

analysis, the data and analysis on which the County relies

provide no support for the blanket reinstatement of the

agricultural exemptions proposed by the plan amendments.

43. Th e County argues that the reinstatement of the

agricultural exemptions is supported by the presence of an

identical exemption in Chapter 28-25 for agricultural activities

in the Big Cypress. This argument treats the rules protecting

areas of critical state concern as a “safe harbor” so that, if

incorporated into a local government’s comprehensive plan, they

assure a finding of supporting data and analysis. The effect of

this argument is that comprehensive plans would provide greater

protection from agricultural activities to natural resources

outside areas of critical state concern than they would provide

the same natural resources in areas of critical state concern.

44. The County implies that the proposed plan amendments

would have little effect because relatively little land of the

affected land remains undeveloped, most of the land is in public

ownership, and much of the remainder of the land will be in

public ownership. Although the percentage of such undeveloped,

privately owned land may be low, the actual area remains

significant.

45. Also, proposed agricultural exemptions apply to land

already in agricultural use, not just undeveloped land proposed

for conversion to agricultural use. Each proposed exemption

applies to activities “to use land for agricultural purposes or

to convert land for such use.” Obviously, adding privately owned

agricultural land to privately owned undeveloped land means that

the proposed exemptions would affect even more land.

46. Lastly, the County, in effect, argues for a relaxation

of land-use restrictions on land just prior to its public

acquisition. Such an action would jeopardize the purpose of what

has been an ambitious land-acquisition program to protect the

important natural resources of this area.

47. The County argues that its land development regulations

protect any natural resources left vulnerable by the

reinstatement of the agricultural exemptions. As compared to

plan provisions, land development regulations are easily repealed

and do not generally, in the best of circumstances, supply much

support, as data or analysis, for plan provisions. This case

does not present the best of circumstances given the valuable and

extensive natural resources and the reliance on land

development’s regulations to the exclusion of the Plan provisions

that the County effectively proposes to repeal with the

reinstatement of the agricultural exemptions.

48. The County argues that other permitting regimes govern

agricultural uses in the Big Cypress. Most notably, the area of

critical state concern program obviously does not. The vigorous

participation of the Intervenors and the comments of the SFWMD

suggest that the failure to reinstate the three agricultural

exemptions in the Plan would meaningfully restrict agricultural

activities. In any event, authority dictating avoidance of

duplicative permitting regimes was not intended to prohibit the

County from strengthening Plan protections for the natural

resources found in the Big Cypress.

49. For the reasons stated in the preceding paragraphs, the

County’s data and analysis do not support the proposed plan

amendments. In fact, the proposed plan amendments are repudiated

by considerable data and analysis that the County has ignored.

These data and analysis have emerged since the adoption of the

Plan and 1993 plan amendments, but prior to the adoption of the

proposed plan amendments.

50. Two sources of these data and analysis are the Florida

Panther: Habitat Preservation Plan—South Florida Population ,

which was issued in November 1993 by individuals employed by the

U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish

Commission, Florida Department of Environmental Protection, and

National Park Service for the Florida Panther Interagency

Committee ( Habitat Preservation Plan ), and Closing the Gaps in

Florida’s Wildlife Habitat Conservation System , which was issued

in 1994 by individuals employed by the Florida Game and Fresh

Water Fish Commission ( Closing the Gaps ).

51. The Habitat Preservation Plan notes that the U.S. Fish

and Wildlife Service designated the Florida panther as a federal

endangered species 30 years ago. Fourteen years later, the U.S.

Fish and Wildlife Service approved a recovery plan for the

Florida panther. The Service revised the plan six years later in

1987.

52. The purpose of the 1987 recovery plan is to develop

three viable, self-sustaining populations within the historic

range of the Florida panther. This range extended through the

entire southeast, not just Florida. Recovery efforts focus on

three elements: stabilizing the south Florida population,

preserving and managing genetic resources, and reestablishing at

least two more populations elsewhere. The Habitat Preservation

Plan warns that these “three elements must proceed simultaneously

if recovery of the Florida panther is to be successful.” Habitat

Preservation Plan at page 1.

53. Focusing on the first element, the Habitat Preservation

Plan identifies “actions that will assure the long-term

preservation of habitats considered essential for maintaining a

self-sustaining population of panthers in south Florida”

(emphasis deleted). Id. at page 2.

54. The Habitat Preservation Plan reports that a self-

sustaining population requires at least 50 adult panthers. Id.

The Habitat Preservation Plan estimates that the south Florida

panther population appears stable at 30-50 adult animals. Id. at

page 1. However, the plan, at page 2, cautions:

Important panther habitat is being lost daily.

Urban Development and agricultural expansion in

occupied panther range without consideration for

habitat needs of the panther are expected to

accelerate as Florida’s [human] population

increases. Development activities could reduce

the available habitat to a level below the minimum

threshold essential for a self-sustaining panther

population.

55. The Habitat Preservation Plan states that Collier is

one of only four counties with a documented reproducing panther

population—the other counties are Lee, Dade, and Hendry. Adult

males require 200 square miles with little overlap with other

males. Adult females require 75 square miles with some overlap

with other panthers.

56. Florida panther prefer white-tailed deer and feral

hogs, but will also eat raccoons, armadillos, rabbits, birds, and

alligators. According to the Habitat Preservation Plan , an adult

panther annually eats the equivalent of 30-50 deer.

57. The Habitat Preservation Plan states that “[l]and

management plays an important role in panther habitat

preservation.” Id. at page 5. According to the plan, prescribed

burning, which facilitates the use of livestock range, also

benefits the white-tailed deer. The plan warns that panther

habitat is threatened by the invasion of nuisance exotics, such

as melaleuca, Brazilian pepper, and Australian pine.

58. The Habitat Preservation Plan asserts that the

preferred panther habitats are hardwood hammocks and pine

flatwoods, which are upland habitats in south Florida. Private

lands in Collier County typically feature improved and native

rangeland, wet and dry prairies interspersed with cabbage palm,

and pine and oak forests—habitat that the panther share with

other endangered or threatened species, such as the Florida

sandhill crane, Audubon’s crested caracara, Florida grasshopper

sparrow, and the burrowing owl.

59. The Habitat Preservation Plan suggests that South

Florida may be near carrying capacity for panthers, so that

further habitat loss means the loss of panthers. Nor are the

existing publicly owned lands in south Florida sufficient; they

can probably support only 9-22 of the estimated 30-50 panthers in

the region. Id. at page 9.

60. The threat to panther habitat posed by agricultural

uses depends entirely on the type of agricultural use for which

development is proposed. The Habitat Preservation Plan

acknowledges that native range and sustained yield forestry

retain native habitat and “can be compatible with panther use.”

Id. at page 16. Other uses, such as citrus groves, vegetable

farms, and improved pasture, eliminate native habitat.

61 . However, the plan describes an ongoing evaluation of

the possibility that fertilization of livestock range may boost

the nutrition of deer, which would also assist the panther.

Also, the plan acknowledges the importance of the configuration

and scale of agricultural development. Panthers may persist in a

mosaic of native and nonnative habitats where the

size and configuration of an improved

pasture, vegetable field or citrus grove and

the composition of adjoining landscapes

determine whether or not the mosaic provides

suitable panther habitat. Agricultural lands

interspersed with native habitats may benefit

the panther’s primary prey, deer and feral

hogs.

Id. at page 16.

62. The Habitat Preservation Plan warns that citrus

development in particular may displace panther habitat in

southwest Florida at a fast rate as grove owners, using new

technologies, expand citrus into the pine flatwoods of southwest

Florida. But the plan suggests that small citrus groves

dispersed carefully among preserved panther habitat might provide

corridors and cover for the panther.

63. The Habitat Preservation Plan suggests that south

Florida livestock range is divided equally between native range

and improved pasture. Suggesting that even improved, overseeded

pasture may assist the panther by providing additional food for

the white-tailed deer, the plan focuses on the “size and

configuration of the pasture and the interspersion and

connectivity of native cover adjacent to the pasture.” Id. at

page 20.

64. Among methods of habitat preservation, the Habitat

Preservation Plan lists numerous approaches that do not require

acquisition of the fee simple. These approaches include

incentives in landowner agreements and conservation easements to

encourage the perpetuation of native range and sustained-yield

forestry as opposed to other, more habitat-disruptive

agricultural uses.

65. The Habitat Preservation Plan describes a number of

laws that assist in the preservation of panther habitat.

Although not mentioning the state laws governing development in

areas of critical state concern, such as Big Cypress, the plan

discusses Chapter 163, Part II, Florida Statutes, and the role of

the comprehensive plans of local governments, such as Collier

County, whose jurisdictions encompass prime panther habitat.

66. Using available data, the Habitat Preservation Plan

identifies habitats suitable for preservation as priority one or

priority two. Priority one habitats, which include much of the

still-forested area affected by the proposed plan amendments,

comprise the “lands most frequently used by the panther and/or

lands of high quality native habitat suitable for the

panther . . ..” Id. at page 34.

67. The first of several recommendations contained in the

Habitat Preservation Plan is to:

Develop site-specific habitat preservation

strategies for [priority one] lands

considered essential to maintaining the

Florida panther population south of the

Caloosahatchee River at its present level.

Strategies should emphasize preservation of

suitable panther habitat on private lands by

methods that retain private ownership of

those lands to the extent possible, and

implement management practices on public

lands that, based on existing data, would be

expected to result in improved habitat

conditions for the panther.

Id. at page 37.

68. Quantitatively, priority one lands south of the

Caloosahatchee River that are not designated for federal or state

acquisition constitute 203,500 acres. Id. If implemented, the

first recommendation would preserve the land where 43 panthers

were found 98 percent of the time during the period of study.

Id.

69. Again ignoring the laws governing development in areas

of critical state concern, the ninth recommendation is for DCA,

the regional planning councils, and local governments to review

their efforts in protecting panther habitat in the context of the

provisions of the Habitat Preservation Plan.

70. Closing the Gaps addresses the habitat needs of a

variety of species, not only the Florida panther. The findings

and conclusions of Closing the Gaps agree with those of the

Habitat Preservation Plan as to the panther.

71. Closing the Gaps finds that nearly all of the Big

Cypress not publicly owned is good habitat for the Florida

panther, as well as the Florida black bear and American swallow-

tailed kite. Closing the Gaps reports that nearly all of the Big

Cypress already hosts a stable black bear population. Closing

the Gaps rates much of the privately owned portion of the Big

Cypress as outstanding potential bear habitat, in terms of

proximity to conservation areas, extent of roadless areas,

diversity of cover types, and the presence of specific cover

types. Closing the Gaps also finds that isolated County locales,

including some in the affected area, present good potential

habitat for the Florida sandhill crane, although much more

extensive potential habitat is found north and east of Collier

County.

72. Closing the Gaps includes Collier County in the

Southwest Florida Region, which does not include any of Monroe or

Dade counties. Closing the Gaps calls this region, which extends

north to Sarasota County, “the most important region in Florida”

in terms of “maintaining several wide-ranging species that make

up an important component of wildlife diversity in

Florida . . ..” Id. at page 173.

73. As to the area northwest of the Big Cypress National

Preserve, Closing the Gaps asserts that the “mixture of cypress

swamp, hardwood swamp, dry prairie, and pineland represents one

of the most important wildlife areas remaining in Florida.” Id.

at page 174.

74. Closing the Gaps cautions: “The threats facing Florida

panthers require quick and aggressive action if panthers are to

be saved from extinction. . . . [B]ut the situation is far from

hopeless if quick actions are taken.” Closing the Gaps , page 68.

75. Repeating the warning of the Habitat Preservation Plan ,

Closing the Gaps cautions that “[o]ne of the greatest threats to

the continued existence of panther habitat in south Florida is

conversion of large areas of rangeland and native land cover to

agriculture.” Id. In particular, citrus development threatens

to subdivide existing, contiguous panther habitat, including that

land covered by the proposed plan amendments.

76. Closing the Gaps concludes with suggestions for how to

protect valuable natural resources. Acknowledging that

acquisition is the most effective and least controversial of

methods, Closing the Gaps suggests the purchase of lesser rights,

such as conservation easements or development rights. Omitting

mention of the state program designating areas of critical state

concern, Closing the Gaps advises that local governments protect

valuable habitat through their comprehensive plans.

77. The Plan currently prohibits various agricultural

activities in the Big Cypress. The prohibited activities are the

alteration of more than 10 percent of the site; installation of

structures that would alter surface water flow; and

implementation of drainage systems that fail to approximate the

natural local surface flow regime, maintain sufficient

groundwater levels to protect wetland vegetation, or retain,

divert, or impede the naturally occurring flows in a slough or

strand. The proposed amendments would permit these activities,

if done for agricultural purposes.

78. The data and analysis do not support the blanket

reinstatement of the proposed agricultural exemptions. The data

and analysis support the present Plan provisions. The data and

analysis might support a more sophisticated approach to

agricultural activities, with due regard to the extent and

configuration of various types of agriculture in terms of the

impact on endangered species and their habitat. However, the

County has not attempted such an approach with the proposed plan

amendments, and it is premature to consider further what such an

approach might involve.

79. To the exclusion of fair debate, the proposed

amendments are unsupported by the data and analysis.

V. Internal Consistency

80. Conservation Objective 1.1 required the County, by

August 1, 1994, to adopt and implement a “comprehensive

environmental management and conservation program” to “ensure

that the natural resources, including species of special status,”

are “properly, appropriately, and effectively identified,

managed, and protected.” The covered species are those listed as

endangered and those listed by the Florida Game and Fresh Water

Fish Commission as endangered and potentially endangered.

81. Conservation Objective 1.1 promised future action. By

mid-1994, the County was required to adopt a program to

“properly, appropriately, and effectively . . . protect. . .”

listed species. Absent a Plan requirement that such protection

be expressed in the Plan, the County arguably could have

discharged this requirement by adopting land development

regulations. And perhaps that was the intent of the 1993 changes

to the land development regulations and Plan.

82. The words of flexibility—“properly,” “appropriately,”

and “effectively”—reveal the promissory nature of this objective.

According to the Plan, these words were designed to leave the

County flexibility until it later completed the necessary work so

“specific statements could be developed for inclusion” in the

Plan.

83. By the language of Conservation Objective 1.1, the

promise came due in 1994. Perhaps part of the County’s response

was the elimination of the agricultural exemptions that it is now

trying to reinstate. In any event, the Plan does not now allow

the County to repudiate its undertaking to “protect” the Florida

panther “properly, appropriately, and effectively.”

84. Regardless of the flexibility accorded these three

adverbs, Conservation Objective 1.1 does not permit the County to

amend the Plan so as to facilitate further loss of panther

habitat, which the data and analysis disclose would be the

inevitable result of the reinstatement of the agricultural

exemptions.

85. To the exclusion of fair debate, the proposed plan

amendments are inconsistent with Conservation Objective 1.1.

VI. Consistency with the State Comprehensive Plan

86. As set forth in Section 187.201(8)(a), Florida

Statutes, Goal 8 of the State Comprehensive Plan states that

Florida shall assure the availability of an

adequate supply of water for all competing

uses deemed reasonable and beneficial and

shall maintain the functions of natural

systems and the overall present level of

surface and ground water quality. Florida

shall improve and restore the quality of

waters not presently meeting water quality

standards.

87. As set forth in Section 187.201(b)10, Policy 8.10 of

the State Comprehensive Plan is to “[p]rotect surface and

groundwater quality and quantity in this state.”

88. Notwithstanding DEP’s comments, as reflected in the

ORC, the record is not sufficiently developed as to water-quality

issues to permit a finding that, to the exclusion of fair debate,

the proposed amendments would conflict with these water-quality

provisions of the State Comprehensive Plan.

89. As set forth in Section 187.201(8)(a), Goal 10 of the

State Comprehensive Plan states that

Florida shall protect and acquire unique

habitats and ecological systems, such as

wetlands, tropical hardwood hammocks, palm

hammocks, and virgin longleaf pine forests,

and restore degraded natural systems to a

functional condition.

90. As set forth in Section 187.201(b)10, Policies 10.1,

10.3, 10.5, and 10.7 of the State Comprehensive Plan are to

1. Conserve forests, wetlands, fish, marine

life, and wildlife to maintain their

environmental, economic, aesthetic, and

recreational value.

* * *

3. Prohibit the destruction of endangered

species and protect their habitats.

* * *

5. Promote the use of agricultural practices

which are compatible with the protection of

wildlife and natural systems.

* * *

7. Protect and restore the ecological

functions of wetlands systems to ensure their

long-term environmental, economic, and

recreational value.

91. To the exclusion of fair debate, the proposed plan

amendments are inconsistent with the provisions of the State

Comprehensive Plan providing for the conservation of forests and

the wildlife using the forests from intense agricultural uses,

such as for citrus groves, vegetable farming, and improved

pasture; the protection of the endangered Florida panther and

other species through the protection of their critical and

essential habitats; and the promotion of agricultural practices

that are compatible with the protection wildlife and natural

systems.

92. Notwithstanding general depictions of wetlands in

various sources of data and analysis, the record is not

sufficiently developed as to the treatment by the proposed

amendments of wetlands in the Big Cypress to permit a finding

that, to the exclusion of fair debate, the proposed amendments

conflict with these wetland provisions of the State Comprehensive

Plan.

CONCLUSIONS OF LAW

I. General

93. The Division of Administrative Hearings has

jurisdiction over the subject matter. Sections 120.57(1) and

163.3184(9)(b), Florida Statutes. (All references to Sections

are to Florida Statutes.)

94. Section 163.3184(9)(a) authorizes an “affected person”

to challenge DCA’s determination that a plan amendment is in

compliance. Section 163.3184(1)(a) defines an “affected person”

as a person “owning property, residing, or owning or operating a

business within the boundaries of the local government whose plan

is the subject of the review.” Such persons must also have

submitted “oral or written comments, recommendations, or

objections to the local government during the period of time

beginning with the transmittal hearing for the . . . plan

amendment and ending with the adoption of the . . . plan

amendment.

95. All the parties in this case have standing.

96. Section 163.3184(1)(b) defines “in compliance” as

“consistent with the requirements of ss. 163.3177, 163.3178, and

163.3191, with the state comprehensive plan, with the appropriate

strategic regional policy plan, and with chapter 9J-5, F.A.C.,

where such rule is not inconsistent with chapter 163, part II.”

97. Section 163.3177(8) states that all elements of a

comprehensive plan “shall be based upon data appropriate to the

element involved.” Section 163.3177(10)(e) states that goals and

policies shall be “clearly based on appropriate data.”

98. Section 163.3177(9)(b) and (c) respectively provide

that plan elements shall be “related to and consistent with each

other” and that the plan shall be “consistent” with the state

comprehensive plan. Section 163.3177(10) states that a plan is

consistent with the state comprehensive plan if the local

government plan is “compatible with” and “furthers” the state

comprehensive plan. “Compatible with” means the local government

plan is “not in conflict” with the state comprehensive plan.

“Furthers” means the local government plan “takes action in the

direction of realizing goals or policies of the state . . .

plan.” These determinations require the consideration of the

state plan “as a whole and no specific goal and policy shall be

construed or applied in isolation from the other goals and

policies in the plans.”

99. Section 163.3184(9)(a) provides that Petitioners must

show to the exclusion of fair debate that the proposed plan

amendments are not in compliance.

100. Petitioners have proved to the exclusion of fair

debate that the proposed plan amendments are not supported by

data and analysis and are inconsistent with the cited provisions

of the Plan and the state comprehensive plan.

101. For these reasons, it is unnecessary to address t he

remaining issues raised by Petitioners. In general, Chapter 163,

Part II, requires local governments to adopt future land use

elements designating, among other things, agriculture and

addressing various “land uses,” without regard to the definitions

of “development” in Chapter 163, Part II, or the Plan.

RECOMMENDATION

It is

RECOMMENDED that the Department of Community Affairs submit

this recommended order to the Administration Commission for entry

of a final order determining that that proposed plan amendments

are not in compliance.

DONE AND ENTERED this 26th day of September, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of September, 1997.

COPIES FURNISHED:

Attorney Thomas W. Reese

2951 61st Avenue South

St. Petersburg, Florida 33712

Shaw P. Stiller

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325-A

Tallahassee, Florida 32399-2100

Ramiro Manalich

Chief Assistant County Attorney

Marjorie M. Student

Assistant County Attorney

Collier County Attorney Office

8th Floor, Administration Building

3301 Tamiami Trail East

Naples, Florida 34112-4902

C. Laurence Keesey

Young, van Assenderp & Varnadoe, P.A.

SunTrust Building

801 Laurel Oak Drive, Suite 300

Naples, Florida 34018

Stephanie Gehres Kruer

General Counsel

2555 Shummard Oak Boulevard, Suite 325-A

Tallahassee, Florida 32399-2100

James F. Murley, Secretary

2555 Shummard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order must be filed with the agency that will

issue the final order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENVIRONMENTAL CONFEDERATION OF )

SOUTHWEST FLORIDA, INC., )

and GARY BEARDSLEY, )

)

Petitioners. )

)

vs. )

)

DEPARTMENT OF COMMUNITY AFFAIRS )

and COLLIER COUNTY, )

)

Respondents, ) Case No. 96-4752GM

)

and )

)

BARRON COLLIER PARTNERSHIP; )

COLLIER ENTERPRISES; RUSSELL A. )

and ALIESE P. PRIDDY; JOHN E. )

PRICE, JR.; and JAMES E. )

WILLIAMS, JR.; )

)

Intervenors. )

___________________________________)

ORDER DECLINING REMAND

By Order of Remand dated November 5, 1997, the Department of

Community Affairs (DCA) determined that the definition of

"development" in Section 163.3164(6), Florida Statutes, creates

an "agriculture exemption" in Chapter 163, Part II, Florida

Statutes. Relying on the exclusion of agricultural activities

from the definition of "development," DCA ruled that the

agricultural "exemption applies to comprehensive plan goals,

objectives and policies that regulate development activities

[and] supersedes limitations in those plan provisions regarding

impacts of development activities on natural resources." DCA

implied that the only limitations on the agricultural exemption

are that local governments must depict the general distribution,

location, and extent of agricultural uses on the future land use

map, and these uses must be supported by data and analysis.

DCA concluded in the Order of Remand that the exemptions

provided by the three proposed amendments in this case "are

permissible under Chapter 163, Part II, Florida Statutes, because

they apply to the specific development activities of site

alternation, drainage, and land clearing and are limited in

application to agricultural activities."

DCA concluded that a local government's decision to avail

itself of the statutory agricultural exemption does not require

supporting data and analysis. Thus, DCA ordered the

Administrative Law Judge to revise paragraphs 42, 43, 49, 78, and

79 of the findings of the fact to "reflect this conclusion of

law."

DCA concluded that a local government's decision to avail

itself of the statutory agricultural exemption results in a

"limited internal consistency analysis." DCA ruled that an

amendment implementing the agricultural exemption "only may be

found to be internally inconsistent with another plan provision

that states, rather than implies, that an exemption for

agriculture activities shall not apply." Referring to

Conservation Objective 1.1, DCA stated that the three proposed

amendments created exceptions to this objective, but did not

conflict with it. DCA ordered the Administrative Law Judge to

revise paragraphs 84 and 85 of the findings of fact.

Employing similar reasoning as to the state comprehensive

plan, DCA concluded that the "focus should be on the language of

the plan provisions and the amendments themselves, not the effect

of the amendments." In deference to the statutory right to an

agricultural exemption, DCA ruled that "the determination of

consistency with the state comprehensive plan . . . may not

included an analysis of the impacts of the decision to apply the

exemptions." DCA stated that the "Administrative Law Judge's

findings in paragraphs [86-91] appear to be based on the

predicate that natural resources will be adversely affected by

the amendments." Thus, DCA ordered the Administrative Law Judge

to revise these findings "to discount the impacts of the

amendments in determining consistency with the state

comprehensive plan."

DCA explicitly remanded the case to the Administrative Law

Judge for two purposes: "for further findings as to whether the

amendments lie within the scope of the agricultural exemption

provided in Chapter 163, Part II, Florida Statutes [and] . . . to

revise the findings of fact in paragraphs [42, 43, 49, 78, 79,

and 86-91] of the recommended order in accordance with the legal

conclusions made by the Department above."

DCA has already determined, as a matter of law, that the

three proposed amendments are within the scope of what DCA has

broadly concluded, as a matter of law, to be an agricultural

exemption within Chapter 163, Part II, Florida Statutes. At

least in the case of three uncomplicated, fairly brief plan

amendments, whose content itself is not in dispute, DCA's

conclusion is properly a legal conclusion, and it is a legal

conclusion within the substantive jurisdiction of DCA. Thus,

there is no basis for a remand of the first issue.

The Administrative Law Judge is unclear as to the purpose of

the remand of the second issue: i.e., the revision of various

findings of fact. Without opining whether there are any factual

issues remaining after DCA's ruling, the Administrative Law Judge

does not find any such factual issues requiring additional

findings. Perhaps, in an abundance of caution, DCA has the

Administrative Law Judge to revise these findings in the mistaken

notion that DCA lacks the authority to do so. However, the

Administrative Law Judge is unaware of any provision of Chapter

120, Florida Statutes, that requires him to engage in the formal

exercise of striking findings of fact that have become irrelevant

due to a legal conclusion of the agency.

Based on the foregoing, it is

ORDERED that the Division of Administrative Hearings

declines the remand.

DONE AND ORDERED this 12th day of November, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of November, 1997.

COPIES FURNISHED:

James F. Murley, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Thomas W. Reese

2951 61st Avenue South

St. Petersburg, Florida 33712

Shaw P. Stiller

Office of General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325A

Tallahassee, Florida 32399-2100

Ramiro Manalich

Marjorie M. Student

Collier County Attorney Office

Administration Building, 8th Floor

3301 Tamiami Trail East

Naples, Florida 34112-4902

C. Laurence Keesey

Young, van Assenderp & Varnadoe, P.A.

SunTrust Building

801 Laurel Oak Drive, Suite 300

Naples, Florida 34018