97-005003GM Laura Johnson vs. City Of Tarpon Springs And Department Of Community Affairs Status: Closed Recommended Order on Tuesday, June 1, 1999.

Summary: Petitioners failed to prove to exclusion of fair debate that plan amendment was not in compliance. Plan amendment created an exception for accessory structures, like swimming pools, to thirty foot aquatic lands setback.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 97-5003GM

)

CITY OF TARPON SPRINGS and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents. )

______________________________)

SAM H. MACK, CONSTANCE S. )

MACK, MARIKA SAMARKOS, and )

LISA L. MACK, )

)

Petitioners, )

)

vs. ) Case No. 97-5004GM

)

CITY OF TARPON SPRINGS and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

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

Administrative Hearings, conducted the final hearing in Tarpon

Springs, Florida, on November 2 and 3, 1998, and February 22, 23,

and 24, 1999.

APPEARANCES

For Petitioner Laura Johnson:

Laura Johnson, pro se

30 Central Court

Tarpon Springs, Florida 34689

For Petitioner Sam H. Mack:

Sam H. Mack, pro se

23 Central Court

Tarpon Springs, Florida 34689

For Petitioner Constance S. Mack:

Thomas R. Cuba

Qualified Representative

Post Office Box 3241

Saint Petersburg, Florida 33731

For Petitioner Marika Samarkos:

Marika Samarkos, pro se

944 Bayshore Drive

Tarpon Springs, Florida 34689

For Petitioner Lisa L. Mack:

Lisa L. Mack, pro se

23 Central Court

Tarpon Springs, Florida 34689

For Respondent City of Tarpon Springs:

Thomas Jask

Frazer Hubbard

Post Office Box 1178

Dunedin, Florida 34698

For Respondent Department of Community Affairs:

Karen Brodeen

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUE

The issue is whether the comprehensive plan amendment

adopted by Ordinance No. 96-28 is in compliance with Chapter 163,

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

Administrative Code.

PRELIMINARY STATEMENT

By Petition for Formal Administrative Hearing dated

October 15, 1997, Petitioners Sam H. Mack, Constance S. Mack,

Marika Samarkos, and Lisa L. Mack alleged that Respondent Tarpon

Springs adopted a plan amendment that added an exception to a

plan provision requiring a 30-foot setback for nonwater-dependent

uses along the shoreline. The exception applies to "accessory

structures on parcels where an existing seawall has effectively

eliminated the natural function of the shoreline."

Petitioners Mack and Samarkos alleged that the plan

amendment is inconsistent with the criteria of Sections

163.3177(6)(g)1-5 and 10, Florida Statutes, regarding the

protection of natural resources, aesthetic values, and historic

resources; Sections 163.3177(8) and (10)(e), Florida Statutes,

and Rule 9J-5.005(2), Florida Administrative Code, regarding the

existence of supporting data, its professional collection and

analysis, and its status as the best available data; Sections

163.3181(1) and (2), Florida Statutes, regarding public

participation; Section 163.3178(2)(b), Florida Statutes,

regarding the analysis of the environmental and socioeconomic

impact of development and redevelopment on natural and historic

resources; Rule 9J-5.012(3)(b)6, Florida Administrative Code,

regarding the direction of population away from the coastal high

hazard area; Rule 9J-5.012(3)(b)8, Florida Administrative Code,

regarding the reduction or elimination of exposure of private

property to natural hazards; Rule 9J -5.012[3](c)2, Florida

Administrative Code, regarding the restoration or enhancement of

disturbed or degraded natural resources through the loss of

seawalls; Rule 9J-5.012[3](c)3, Florida Administrative Code,

regarding the reduction of exposure of private property to

natural hazards; and Rule 9J-5.012[3](c)7, Florida Administrative

Code, regarding the designation of coastal high hazard areas and

limitation of development in those areas.

Petitioners Mack and Samarkos also alleged that the plan

amendment or its adoption is inconsistent with the requirements

of the Plan Administration Element, Goal 2 of the Coastal

Management and Conservation Element, Policy 6 of the Coastal

Management and Conservation Element, Policy 11 of the Coastal

Management and Conservation Element, Policy 14j of the Coastal

Management and Conservation Element, Policy 22 of the Coastal

Management and Conservation Element, and Policy 3 of the Coastal

Management and Conservation Element.

By Petition for Administrative Hearing dated October 17,

1997, Petitioner Laura Johnson alleged that Respondent Tarpon

Springs adopted Ordinance No. 96-28 in response to a final order

determining that an earlier ordinance, Ordinance 94-29, was not

in compliance. Petitioner Laura Johnson alleged that the plan

amendment is inconsistent with Plan policies establishing a

15 -foot wetlands buffer and 30-foot shoreline buffer. Petitioner

Laura Johnson alleged that the plan amendment is inconsistent

with provisions in Chapter 9J-5, Florida Administrative Code,

requiring the protection of wetlands and wildlife habitat.

At the hearing, Petitioners called six witnesses, and

Respondents called two witnesses. One member of the public

testified.

Petitioner Constance S. Mack offered into evidence 48

exhibits (Cuba Exhibits). She withdrew Cuba Exhibits 10, 12, 21,

and 33. All other Cuba Exhibits were admitted except Cuba

Exhibits 17, 25, 27, 35, 38, 41, and 42, which were proffered.

Petitioner Lisa Mack offered into evidence Lisa Mack Exhibits 1-5

and 7-14. All were admitted except Lisa Mack Exhibit 9, which

was proffered. Petitioner Laura Johnson offered into evidence

two exhibits, Johnson Exhibits 2 and 3, which were both admitted.

Respondent Tarpon Springs offered into evidence Tarpon Springs

Exhibits 18, 29, 31, 33 (Conservation Element only), and, 38,

which were all admitted.

The court reporter filed the Transcript on March 26, 1999.

FINDINGS OF FACT

1. Petitioners are residents of Tarpon Springs. By

stipulation, Petitioners have standing.

2. This case arose out of a final order sustaining a

challenge to a land development regulation adopted by Respondent

City of Tarpon Springs (Tarpon Springs). The land development

regulation allowed the construction of swimming pools and

enclosures up to within eight feet of seawalls, despite Plan

requirements of a 15-foot buffer along all wetlands and a 30-foot

setback for all shoreline construction outside of the Sponge Dock

Area.

3. In Jeff and Laura Johnson and Department of Community

Affairs v. City of Tarpon Springs , Case No. 95-6206GM, the

Administrative Commission determined that the land development

regulation was inconsistent with provisions of Tarpon Springs'

comprehensive plan (Plan). However, the Administrative

Commission withheld sanctions, as long as Tarpon Springs repealed

the land development regulation, amended the land development

regulation to make it consistent with the Plan, or amended the

Plan to make it consistent with the land development regulation.

4. Choosing the third option, Tarpon Springs amended its

Plan by adopted Ordinance No. 96-28 on August 5, 1997. The

ordinance revises Policy 2 of the Coastal Zone and Conservation

Element (Conservation) of the Plan. Petitioners have challenged

Conservation Policy 2, as amended by Ordinance No. 96-28.

5. With the new language underlined, Conservation Policy 2

declares that the policy of Tarpon Springs is to:

Require a minimum 30 foot aquatic lands

setback for non-water dependent uses along

the City's shoreline with the exception of

the historic Sponge Dock Area and accessory

structures on parcels where an existing

seawall has effectively eliminated the

natural function of the shoreline. Accessory

structures are defined as those detached from

the principal building located on the same

lot and customarily incidental and

subordinate to the principal building or use.

Accessory structures shall not include any

structure having an impervious roof supported

by columns or walls and intended for the

shelter, housing, or enclosing of any

individual, animal, process, equipment,

goods, or materials of any kind [.]

(Objectives 1 and 11)

6. The Plan contains several other relevant provisions,

which were not the subject of the amendment. In general, Tarpon

Springs has taken a comprehensive approach to comprehensive

planning by adopting, as part of its Plan, supporting data and

analysis and even provisions of Chapter 9J-5, Florida

Administrative Code (Chapter 9J-5).

7. For instance, the Conservation Element recites each

provision of Chapter 9J-5 requiring a goal, objective, and

policy. As for objectives, various parts of the Conservation

Element state, "It is the objective of the City of Tarpon Springs

to . . .," and the Plan restates individual provisions of Rule

9J-5.012(3)(b). Responding to each objective reprinted from the

rule, the Plan states various planning provisions.

8. Eight Conservation policies follow Rule 9J -5.012(3)(c)1,

which requires a policy identifying regulatory or management

techniques for: "Limiting the specific impacts and cumulative

impacts of development or redevelopment upon wetlands, water

quality, water quantity, wildlife habitat, living marine

resources, and beach and dune systems." The eight policies

provide:

1. Place all wetland areas in the

preservation designation as shown on Schedule

A, and ensure that no additional loss of

wetland vegetation occurs; (Objectives 1, 2,

and 11)

2. [This is Conservation Policy 2 cited

above.

3. Require a minimum 15 foot buffer zone

adjoining all wetlands; (Objectives 1 and 11)

4. Identify design alternatives and funding

sources for bayou erosion control;

(Objective 3)

5. Utilize wetlands for stormwater filtering

in accordance with the discussion under

Section II.D.5, FDER, SWFWMD, and Chapter

17 -25 requirements for water quality,

quantity, and use; (Objectives 1, 6)

6. Restrict seawalling along the Gulf Coast

shoreline, and require the replacement of

seawalls in the Coastal High Hazard Area with

stabilization techniques as exhibited by

Figure 9 of this element in the event they

are destroyed in excess of 50% of their

replacement cost; (Objectives 1, 2, 3)

7. Require all development or redevelopment

adjacent to wetlands or upland natural areas

to assess the impact upon wildlife in order

to evaluate and eliminate or minimize adverse

impacts; (Objectives 1, 2, 11)

8. Require that post development runoff

shall not exceed pre-development runoff for

the 25 year frequency storm, 24 hour

duration[,] in order to limit adverse impacts

of water quantity and quality resulting from

development or redevelopment; (Objectives 1,

2, 4 and 6

9. Other Conservation provisions are:

Goal 2. Reduce shoreline conflicts through

the land use planning process.

Policy 11. Include the restoration and

utilization of wetlands as a part of the

Master Drainage Plan[.] (Objectives 4, 6)

Policy 14j. Existing hazard mitigation

programs that include shoreline restoration

and enhancement, building code and floodplain

regulations, development management

techniques such as land regulations,

development management techniques such as

land use, zoning, and subdivision

regulations, and other applicable hazard

mitigation measures[,] shall continue to be

implemented. These mitigation programs shall

be amended, as necessary, to remain

consistent with federal and state

requirements.

Policy 22. All hurricane evacuation routes

will be clearly posted within the City of

Tarpon Springs by the Tarpon Springs Fire

Department[.] (Objective 14)

10. Petitioners and Respondents dispute the meaning and

effect of Conservation Policy 2. It is necessary to interpret

Conservation Policy 2 before considering specific challenges to

whether it is in compliance with various provisions of Chapter

163, Florida Statutes (Chapter 163), and Chapter 9J-5.

11. The obvious purpose of adding the accessory-structure

exception to Conservation Policy 2 was to liberalize land uses

within the 30-foot aquatic lands setback. Petitioners argue that

the amendment also liberalizes land uses within the separate

15 -foo t wetlands buffer. This argument is incorrect; the

amendment does not affect the restrictions accompanying the

15 -foot wetlands buffer.

12. Before and after the amendment, the 15-foot wetlands

buffer applies a separate land use restriction whose effect is

not in any way dependent upon the existence of the 30-foot

aquatic lands setback. Regardless of the amendment, if a

proposed land use is within the 15-foot wetlands buffer, the land

use is subject to the restrictions imposed by the buffer.

13. The Future Land Use Element contains the following

definition of "buffer": "A reserved area attractively landscaped

and perpetually maintained as common open space, free of

structures, impervious surface, roadways, storage, and other

enclosures or appurtenances."

14. The 15-foot wetlands buffer thus prohibits the

conversion of open space to other uses, which would include

swimming pools. The accessory-structure exception in no way

lessens the restrictions imposed by the 15-foot wetlands buffer.

After consideration of the definition of "buffer," it is clear

that the accessory-structure exception would only allow the

installation of a swimming pool in the portion of the 30-foot

aquatic lands setback that is outside of the 15-foot wetlands

buffer.

15. Petitioners contend that the phrase, "existing

seawall," is vague and ambiguous. The Plan fails to define these

two words. As for the meaning of "seawall," the record contains

some evidence that Tarpon Springs officials may have difficulty

determining whether a deteriorated seawall constitutes an

"existing seawall" or, effectively, riprap. Less likely, there

may be some confusion as to whether a seawall fronted by riprap

constitutes a seawall. However, it is at least fairly debatable

that Conservation Policy 2 is not so vague or ambiguous as to be

unenforceable with respect to its definition of an "seawall."

16. The word, "existing," is not entirely free of

ambiguity. The two best alternative interpretations are that

"existing" refers to seawalls in existence when the subject Plan

amendment becomes effective or that "existing" refers to seawalls

in existence when the landowner files an application for a

building permit for the accessory structure or when Tarpon

Springs grants the permit application.

17. The better interpretation of "existing" is that it

refers to seawalls in existence when the landowner files his or

her application or Tarpon Springs grants the application.

Conservation Policy 2 addresses the installation of accessory

structures, not seawalls. Although the accessory-structure

exception is dependent on the presence of a seawall, the

exception directly addresses accessory structures, not seawalls.

18. Absent an explicit attempt to regulate seawall

construction, nothing in the accessory-structure exception in

Conservation Policy 2, or the policy itself, suggests an attempt

to grandfather in only those seawalls in existence at the time of

the adoption of the Plan amendment. The focus of the accessory-

structure exception in Conservation Policy 2 is not on limiting

the construction of seawalls, but on assuring that landowners

will install accessory structures only behind functional

seawalls. The more natural and practical reading of "existing"

is thus that it applies to seawalls in existence as of the time

of the filing or granting of the application.

19. An interpretation that requires that the seawall be in

existence as of the time of the granting of the permit serves the

practical purpose of assuring that the seawall is in place when

the accessory structure is installed. This important practical

effect is not assured by the grandfathering-in interpretation,

unless Tarpon Springs artificially stretches its interpretation

of "existing" to mean only those seawalls in existence as of the

effective date of the subject amendment and continuing in

existence from that time through the date of the granting of the

application.

20. Lastly, Petitioners contend that the clause,

"effectively eliminated the natural function of the shoreline,"

is meaningless. This contention is legitimate. No seawall

effectively eliminates the natural function of a shoreline, if

"effectively" means "completely" or even "substantially

completely." There is no fairly debatable definition of

"effectively," "eliminate," "natural function," or "shoreline"

that can assign meaning to this clause.

21. Tarpon Springs apparently intended to use the

"effectively eliminated" clause to limit the applicability of the

accessory-structure exception to uplands immediately landward of

some, but not all, seawalls. However, the record offers no real

guidance as to the grounds on which Tarpon Springs would

distinguish between these two classes of seawalls.

22. Undoubtedly, the natural functions of a shoreline can

be substantially reduced by a seawall, but a seawall cannot

eliminate all of the numerous natural functions of a shoreline.

Two examples should suffice. Biologically, the installation of a

seawall does not eliminate all of the organisms occupying the

shoreline ecotone, including the seawall. Physiographically, the

installation of a seawall does not eliminate the natural function

of a shoreline as a geographic line of demarcation between

uplands and open waters.

23. However, the shortcomings of the "effectively

eliminated" clause do not render Conservation Policy 2

meaningless. This attempt to differentiate between functional

and nonfunctional seawalls is merely an attempt to create a

nonfunctional-seawall exception to the accessory-structure

exception. If the "effectively eliminated" clause were

disregarded as meaningless, Tarpon Springs could continue to

apply the accessory-structure exception without regard to the

functional status of the seawall. Although, as far as this case

is concerned, Tarpon Springs may attempt to distinguish between

those seawalls that it believes have effectively eliminated the

natural function of the shoreline and those seawalls that have

not done so, the remainder of this recommended order will

consider Conservation Policy 2 as though it would apply to all

seawalls.

24. Crucial subsidiary issues in this case involve the

effect of the amendment on various natural resources. Given the

proximity of the area affected by the 30-foot aquatic lands

setback to wetlands and open waters, the environmental issues

primarily involve the effect of stormwater runoff on nearby

wetlands and open waters.

25. In analyzing the stormwater runoff issue, the first

issue involves the extent to which the accessory-structure

exception may cause the conversion of pervious to impervious

surface. However, the record fails to reveal two important

pieces of information: the extent of the affected area that is

presently pervious and the extent of this pervious area that will

likely become impervious.

26. In considering the extent to which pervious area will

likely become impervious, due to the accessory-structure

exception, it is necessary to consider the types of accessory

structures that landowners will likely construct. Although it is

possible that the accessory-structure exception may facilitate

paving, which obviously creates an impervious surface, swimming

pools are the most likely structures to be installed under the

accessory-structure exception, which prohibits roofed structures.

27. Where a swimming pool replaces pervious surfaces, the

pool could adversely affect stormwater runoff. If one were able

to project the pervious surface area annually to be converted to

swimming pools, possibly one could model progressively more

intense storm events and durations (but not in excess of the

design storm event) to determine whether (and, if so, to what

extent) the typical swimming pool would receive runoff, rather

than divert it around the pool, as is normal construction

practice. Other calculations would need to consider the capacity

of the typical pool to collect additional water prior to

discharging the water and the input received by wetlands and open

waters, in relevant storm events, directly from rainfall and, if

applicable, indirectly from runoff.

28. The record contains no such analysis, nor is the issue

so clearcut as to permit an inference that swimming pools, or

other accessory structures, would, in storm events up to the

design storm event, adversely affect the quality, quantity, rate,

or hydroperiod of the runoff through nearby wetlands and into

nearby open waters.

29. The absence of a demonstrated relationship between the

accessory-structure exception and adverse environmental effects

is independent of the area of land affected by the accessory-

structure exception. The absence of such a demonstrated

relationship is further underscored, though, by the relatively

small area of uplands that would likely be converted annually to

swimming pools. Although the record contains varying estimates

of the amount of land involved, Petitioners have failed to

demonstrate that the area of affected land is more than minimal.

30. In terms of water quality, the record does not

establish the net effect of converting the pervious portion of

the affected area into pool areas. If grassy or planted, the

pervious area may receive undisclosed infusions of insecticides,

herbicides, and fertilizers. Undisclosed amounts of these

substances may enter the nearby wetlands and open waters directly

in runoff, leading to adverse environmental effects. The pool

areas probably will receive undisclosed infusions of pool

chemicals. Undisclosed amounts of these substances may enter the

nearby wetlands and open waters directly in spillage and

indirectly through evaporation and atmospheric deposit, leading

to adverse environmental effects. The state of the record

precludes findings, at a level of probability as to exclude fair

debate, with respect to which land use would likely have a

greater impact on water quality.

31. Other environmental issues raised by Petitioners are

insubstantial. For instance, the record does not disclose the

significance of the loss of assertedly contiguous wildlife

corridor following the conversion into swimming pools of 15-foot

wide strips of backyards running parallel to the shoreline

starting at a distance of about 15 feet from the edge of the

wetlands.

32. On these facts, Petitioners cannot show, to the

exclusion of fair debate, that Tarpon Springs' planning decision

to adopt the accessory-structure exception to the 30-foot setback

is inconsistent with the various environmental and planning

criteria of Chapters 163 and 9J-5.

33. This deferential evidentiary standard acknowledges the

basically political or legislative nature of the process by which

local governments plan land uses. In general, to overturn this

political or legislative process, Petitioners must make a more

definitive showing of environmental or planning harm caused by

the adoption of the subject Plan amendment that will allow

landowners to construct swimming pools in their backyards

relatively close to open water. The absence of such a showing

generally precludes a determination that the subject Plan

amendment is inconsistent with the relevant criteria of Chapters

163 and 9J -5--such as supporting data and analysis, internal

consistency, and other specific provisions.

34. For instance, on the basis of the present record, it is

impossible to determine whether the conversion of pervious

surfaces to swimming pools would be environmentally harmful,

especially on the scale reasonably envisioned by Tarpon Springs.

This state of the record precludes a finding that Petitioners

have shown, to the exclusion of fair debate, the alleged

environmental inconsistencies that they must show in order to

prevail.

35. Petitioners have failed to prove to the exclusion of

fair debate that the subject Plan amendment is inconsistent with

Sections 163.3177(6)(g)1-5 and 10, and Rules 9J-5.012(3)(b)6 and

8 and (c)2, 3, and 7. These criteria require local governments

to adopt plan provisions serving various planning, environmental,

aesthetic, and public-safety criteria. No plan amendment

addressing a single topic, like the accessory-structure

exception, is required to address all of the criteria contained

in Chapters 163 and 9J-5. It is possible that the effect of a

plan amendment addressing a single topic may be to cause the

plan, as amended, to fail to satisfy certain criteria. If so,

the more likely challenge would be that the plan amendment is

internally inconsistent with the various plan provisions that,

prior to the amendment, satisfied the criteria in question.

36. Petitioners have failed to prove to the exclusion of

fair debate that the subject Plan amendment is inconsistent with

the criterion of Sections 163.3177(8) and (10)(e) and

163.3178(2)(b) and Rule 9J -5.005(2). As previously found, the

data and analysis contained in the record would support a

planning decision to adopt the accessory-structure exception,

even without the functional-seawall exception, or to reject the

accessory-structure exception.

37. Petitioners have failed to prove to the exclusion of

fair debate that the subject Plan amendment is internally

inconsistent with Conservation Goal 2 or Conservation Policies 2,

3, 6, 11, 14j, and 22. As already noted, there is no

inconsistency between Conservation Policy 2, as amended, and

Conservation Policy 3, which imposes the 15-foot wetlands buffer.

To the extent that Petitioners have adequately raised an issue of

internal inconsistency between the subject Plan amendment and

Plan provisions governing the coastal high hazard area, the

record does not support a finding that the accessory-structure

exception would result in a material increase of either persons

or property in the coastal high hazard area.

38. Petitioners also assert that the process by which

Tarpon Springs adopted the subject amendment was inconsistent

with the criterion of public participation. In challenging the

process by which Tarpon Springs adopted the subject amendment,

Petitioners assert that Tarpon Springs failed to comply with the

Plan Administration Element, which Tarpon Springs adopted as part

of its Plan. As described by Petitioner Constance S. Mack in her

proposed recommended order, this element generally requires that

Tarpon Springs notify all landowners affected by a proposed

amendment, encourage public participation, and consider and

respond in writing to comments from the public.

39. The record reveals an imperfect planning process.

Tarpon Springs probably considered some erroneous data and

analysis. Tarpon Springs ultimately adopted a Plan amendment

containing the meaningless nonfunctional seawall exception to the

accessory-structure exception. Petitioners correctly contend

that little real dialogue took place between them and Tarpon

Springs officials during the planning process.

40. Communications between the two sides were less than

ideal. By the end of the planning process, relations between the

opposing parties deteriorated to the point that the Tarpon

Springs planning director was, at times, treating legitimate

attempts by Petitioners to participate in the planning process as

unreasonable attempts at interference, and Petitioners were, at

times, equating an unfavorable planning decision as a denial of

public participation.

41. But Tarpon Springs nonetheless satisfied the minimum

criteria involving public participation. Petitioner Constance S.

Mack accurately concedes in her proposed recommended order that

Tarpon Springs allowed public participation at a "minimal level."

The record reveals that Tarpon Springs complied with all state

law governing public participation.

42. Tarpon Springs also materially complied with all local

law governing public participation. Any shortcomings in

individual notice notwithstanding, published notice effectively

put the community of Tarpon Springs on notice of the proposed

amendment. The origin of this planning exercise was in a prior

case that had been recently concluded. Tarpon Springs is a small

community that, as evidenced by Petitioners' presentation of a

petition with over 225 signatures protesting the proposed

amendment, was in fact well informed of the ongoing planning

process involving accessory structures.

43. The record reflects that Tarpon Springs entertained

Petitioners' objections, and the record supports the inference

that Tarpon Springs considered these objections. In a perfect

planning process, Tarpon Springs would have opened a dialogue

with Petitioner Lisa Mack and responded to her carefully

developed aesthetic vision of the future of Tarpon Springs'

waterfront with an aesthetic vision of its own. In a better

planning process, Tarpon Springs would have given more thoughtful

consideration to Petitioners' objections to the language of the

accessory-structure exception and eliminated some of the

ambiguities present in the subject Plan amendment.

44. In the end, the planning process resulted in a decision

by Tarpon Springs to allow waterfront landowners to build

swimming pools in their backyards, relatively close to the water.

Petitioners worked hard during the planning process to achieve a

different result. However, these facts, together with the

shortcomings in the planning process, do not describe a planning

process that is inconsistent with the criterion of public

participation.

45. Petitioners thus did not prove, to the exclusion of

fair debate, that Tarpon Springs failed to give Petitioners

reasonable notice of the proposed amendment and a reasonable

opportunity to participate in the planning process.

46. Petitioners failed to prove to the exclusion of fair

debate that the adoption process failed to satisfy the public-

participation criteria of Sections 163.3181(1) and (2) and Rule

9J-5.004.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter. Sections 120.57(1) and 163.3184(9),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

10. Section 163.3184(1)(b) defines "in compliance" as:

consistent with the requirements of ss.

163.3177, 163.3178, 163.3180, 163.3191, and

163.3245, with the state comprehensive plan,

with the appropriate strategic regional

policy plan, and with chapter 9J-5, Florida

Administrative Code, where such rule is not

inconsistent with this part and with the

principles for guiding development in

designated areas of critical state concern.

9. Section 163.3184(9) imposes the burden of proof on

Petitioners to show, to the exclusion of fair debate, that the

subject Plan amendment is not in compliance.

10. Sections 163.3177(2), (8), and (10)(e) provide in part:

(2) Coordination of the several elements of

the local comprehensive plan shall be a major

objective of the planning process. The

several elements of the comprehensive plan

shall be consistent, and the comprehensive

plan shall be economically feasible.

(8) All elements of the comprehensive plan,

whether mandatory or optional, shall be based

upon data appropriate to the element

involved. . . .

(6)(g) For those units of local government

identified in s. 380.24, a coastal management

element, appropriately related to the

particular requirements of paragraphs (d) and

(e) and meeting the requirements of s.

163.3178(2) and (3). The coastal management

element shall set forth the policies that

shall guide the local government's decisions

and program implementation with respect to

the following objectives:

1. Maintenance, restoration, and

enhancement of the overall quality of the

coastal zone environment, including, but not

limited to, its amenities and aesthetic

values.

2. Continued existence of viable

populations of all species of wildlife and

marine life.

3. The orderly and balanced

utilization and preservation, consistent with

sound conservation principles, of all living

and nonliving coastal zone resources.

4. Avoidance of irreversible and

irretrievable loss of coastal zone resources.

5. Ecological planning principles and

assumptions to be used in the determination

of suitability and extent of permitted

development.

* * *

10. Preservation, including sensitive

adaptive use of historic and archaeological

resources.

(10)(e) It is the Legislature's intent that

support data or summaries thereof shall not

be subject to the compliance review process,

but the Legislature intends that goals and

policies be clearly based on appropriate

data. The department may utilize support

data or summaries thereof to aid in its

determination of compliance and consistency.

The Legislature intends that the department

may evaluate the application of a methodology

utilized in data collection or whether a

particular methodology is professionally

accepted. However, the department shall not

evaluate whether one accepted methodology is

better than another. Chapter 9J-5, Florida

Administrative Code, shall not be construed

to require original data collection by local

governments; however, local governments are

not to be discouraged from utilizing original

data so long as methodologies are

professionally accepted.

11. Section 163.3178(2)(b) provides:

Each coastal management element required by

s. 163.3177(6)(g) shall be based on studies,

surveys, and data; be consistent with coastal

resource plans prepared and adopted pursuant

to general or special law; and contain:

(b) An analysis of the environmental,

socioeconomic, and fiscal impact of

development and redevelopment proposed in the

future land use plan, with required

infrastructure to support this development or

redevelopment, on the natural and historical

resources of the coast and the plans and

principles to be used to control development

and redevelopment to eliminate or mitigate

the adverse impacts on coastal wetlands;

living marine resources; barrier islands,

including beach and dune systems; unique

wildlife habitat; historical and

archaeological sites; and other fragile

coastal resources.

12. Sections 163.3181(1) and (2) provide:

(1) It is the intent of the Legislature that

the public participate in the comprehensive

planning process to the fullest extent

possible. Towards this end, local planning

agencies and local governmental units are

directed to adopt procedures designed to

provide effective public participation in the

comprehensive planning process and to provide

real property owners with notice of all

official actions which will regulate the use

of their property. The provisions and

procedures required in this act are set out

as the minimum requirements towards this end.

(2) During consideration of the proposed

plan or amendments thereto by the local

planning agency or by the local governing

body, the procedures shall provide for broad

dissemination of the proposals and

alternatives, opportunity for written

comments, public hearings as provided herein,

provisions for open discussion,

communications programs, information

services, and consideration of and response

to public comments.

13. Rule 9J-5.012(3)(b) addresses the coastal management

element and provides in part:

(b) The element shall contain one or more

specific objectives for each goal statement

which address the requirements of Paragraph

163.3177(6)(g) and Section 163.3178, Florida

Statutes, and which:

6. Direct population concentrations away

from known or predicted coastal high-hazard

areas;

8. Prepare post-disaster redevelopment

plans which will reduce or eliminate the

exposure of human life and public and private

property to natural hazards[.]

14. Rule 9J-5.012(3)(c) provides:

(c) The [coastal management] element shall

contain one or more policies for each

objective and shall identify regulatory or

management techniques for:

2. Restoration or enhancement of

disturbed or degraded natural resources

including beaches and dunes, estuaries,

wetlands, and drainage systems; and programs

to mitigate future disruptions or

degradations;

3. General hazard mitigation including

regulation of building practices,

floodplains, beach and dune alteration,

stormwater management, sanitary sewer and

septic tanks, and land use to reduce the

exposure of human life and public and private

property to natural hazards; and

incorporating the recommendations of the

hazard mitigation annex of the local

peacetime emergency plan and applicable

existing interagency hazard mitigation

reports. Incorporating recommendations from

interagency hazard mitigation reports shall

be at the discretion of the local government;

7. Designating coastal high-hazard areas

and limiting development in these areas[.]

15. For the reasons already stated, Petitioners have failed

to prove to the exclusion of fair debate that the subject Plan

amendment is not in compliance.

RECOMMENDATION

It is

RECOMMENDED that the Department of Community Affairs enter a

final order determining that the subject Plan amendment is in

compliance.

DONE AND ENTERED this 1st day of June, 1999, 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]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of June, 1999.

COPIES FURNISHED:

Laura Johnson

30 Central Court

Tarpon Springs, Florida 34689

Sam H. Mack

23 Central Court

Tarpon Springs, Florida 34689

Thomas R. Cuba

Qualified Representative

Post Office Box 3241

Saint Petersburg, Florida 33731

Marika Samarkos

944 Bayshore Drive

Tarpon Springs, Florida 34689

Lisa L. Mack

23 Central Court

Tarpon Springs, Florida 34689

Thomas Jask

Frazer Hubbard

Post Office Box 1178

Dunedin, Florida 34698

Karen Brodeen

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

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.