STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION. FLWAC Case No.: APP DOAH Case No.: DRI DRAFT FINAL ORDER

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1 FINAL ORDER NO. LW STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION DEPARTMENT OF COMMUNITY AFFAIRS, An agency of the State of Florida, Petitioner, vs. POLK COUNTY, a political subdivision of the State of Florida, and SAFARI WILD, LLC, C/O C. LEX SALISBURY FLWAC Case No.: APP DOAH Case No.: DRI Respondents. / DRAFT FINAL ORDER This cause came on for consideration before the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission ( Commission ), on November 9, 2010, upon a Petition for Appeal filed by the Department of Community Affairs ( DCA ) of a Development Order 1 concerning the proposed Safari Wild project in Polk County, Florida ( DO ). The Safari Wild property is located entirely within the boundaries of the Green Swamp Area of Critical State Concern ( Green Swamp Area ), pursuant to section , Florida Statutes, and chapter , Florida Administrative Code. The DO was issued by Polk County on October 2, 2009, and rendered to DCA on October 13, 2009, authorizing a safari-style commercial tour operation on the Safari Wild property. However, by that time, Safari Wild had 1 The Development Order, designated as Safari Wild 6429 and project number 53886, is comprised of a series of documents. 98 1

2 already constructed the structures to support this operation, notwithstanding repeated objections raised by DCA regarding eligibility for an agricultural exemption or agritourism. It would appear that Polk County purports to authorize development that has already occurred. On November 25, 2009, DCA filed documents to appeal under section , Florida Statutes, which stayed the effectiveness of the DO for the pendency of the proceeding. The Commission referred the subject appeal to the Division of Administrative Hearings (DOAH) for a formal evidentiary hearing pursuant to Chapter 120, Florida Statutes. The assigned Administrative Law Judge (ALJ) conducted the hearing April 27-29, 2010, and held a public comment session on May 14, On July 30, 2010, the ALJ entered and submitted his Recommended Order for consideration and issuance of a final order by the Commission as the final agency action in this proceeding. STANDARD OF REVIEW The Administrative Procedure Act provides that the Commission will adopt the ALJ's Recommended Order except under certain limited circumstances. First, the Recommended Order must be the product of a hearing process that is consistent with all applicable legal requirements, which, in this case, includes a de novo proceeding and the assignment of the burdens of persuasion and proof to DCA. Young v. Department of Community Affairs, 625 So. 2d 831, 835 (Fla. 1993). The ALJ properly conducted the hearing process in this proceeding. Regarding the Commission s action on the Recommended Order itself, there is one standard of review for findings of fact, and a different standard of review for conclusions of law. The Commission has very limited authority to reject or modify the ALJ's findings of fact: The agency may not reject or modify the findings of fact unless the agency first 2

3 determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law (1)(l), Fla. Stat. When fact-finding functions have been delegated to an ALJ, as is the case here, the Commission must rely upon the record developed before the ALJ. Fox v. Treasure Coast Reg l Planning Council, 442 So. 2d 221, 227 (Fla. 1st DCA 1983). As the ALJ in an administrative proceeding is the trier of fact, he or she is privileged to weigh and reject conflicting evidence. Cenac v. Fla. State Bd. of Accountancy, 399 So. 2d 1013, 1016 (Fla. 1st DCA 1981). Therefore, [i]t is the hearing officer's function in an agency proceeding to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Bejarano v. State of Fla., 901 So. 2d 891, 892 (Fla. 4th DCA 2005) (quoting Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) (citing State Beverage Dep't v. Ernal, Inc., 115 So. 2d 566 (Fla. 3rd DCA 1959))). The term competent substantial evidence means any evidence that will establish a substantial basis of fact from which a fact at issue can be reasonably inferred, and evidence which should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The term does not relate to the quality, character, convincing power, probative value or weight of the evidence, only to the existence of some admissible evidence on each essential element. Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So.2d 287, 290 n.3 (Fla. 5th DCA 1996). In short, the Commission cannot reweigh evidence considered by the ALJ, and cannot reject or modify findings of fact 3

4 made by the ALJ if those findings of fact are supported by substantial competent evidence in the record. Heifetz, 475 So. 2d at However, the Commission may modify or reject conclusions of law in the Recommended Order over which it has substantive jurisdiction, and the standard for review is well settled. See (1)(l), Fla. Stat. When rejecting or modifying a conclusion of law, the Commission must state with particularity its reasons for rejecting or modifying such conclusion of law. Any substituted conclusion of law must be as or more reasonable than the conclusion of law provided by the ALJ in the Recommended Order. Id. The label assigned a statement is not dispositive as to whether it is a finding of fact or conclusion of law. Kinney v. Department of State, 501 So. 2d 1277 (Fla. 5th DCA 1987). Conclusions of law labeled as findings of fact, and findings labeled as conclusions, will be considered as a conclusion or finding based upon the statement itself and not the label assigned. EXCEPTIONS Any allegations by the Parties of defects in the hearing process or the ALJ s findings of fact must be raised to the Commission through the filing of exceptions. Fla. Dep't of Corrs. v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The failure to do so is tantamount to an expression of agreement with the process and findings of fact of the ALJ, or at least a waiver of the right to subsequently contest the ALJ s process or facts before the Commission or on appeal. Environmental Coalition of Fla., Inc. v. Broward County, 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991). In this case, the Parties filed no exceptions to the Recommended Order. The Commission notes there are isolated typographical and other technical errors in the Recommended Order. However, the errors are not material to this proceeding. Accordingly, the 4

5 Commission has elected not to correct the errors in this Final Order. Nonetheless, the Commission is free to modify or reject conclusions over which it has substantive jurisdiction according to the standard set forth above. See (1)(l), Fla. Stat. (2009); Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). ISSUES IN DISPUTE According to the ALJ, there are two issues in dispute in this proceeding. The first issue is whether the project authorized by the development order constitutes development as defined in section , Florida Statutes. If so, the second issue is whether the DO is consistent with the Principles for Guiding Development in the Green Swamp Area, the Polk County Comprehensive Plan and the Land Development Regulations, and the statutory and rule provisions related to development within the Green Swamp Area. I. Does the Safari Wild Project meet the definition of development under Section (1), Florida Statutes? In this case, Safari Wild has maintained that it is an agricultural and agritourism operation and, as such, is not development as provided in the Polk County Comprehensive Plan and in section , Florida Statutes. If this were correct, it may excuse Safari Wild for proceeding with certain construction without seeking authorization to do so. Yet DCA has consistently determined otherwise. On July 29, 2008, DCA wrote a letter to Safari Wild and the County stating that the buildings and all other structures on the property did not fit within the definition of agritourism activities On November 14, 2008, DCA issued a Notice of 5

6 Violation after becoming aware of at least one structure not subject to an agricultural exemption In paragraphs 102 and 103, the ALJ found that the Master Site Plan shows the construction of an access road from Moore Road, a rural minor collector which forks southward to give access to a hay barn and an animal commissary; and that the other fork of the road connects to a parking lot and to the Welcome Barn which is the commercial building, from where there is a trail that passes an island with primates such as monkeys and lemurs, a windmill well, a giraffe feeding facility and a hippo compound. In paragraphs , the ALJ found that Safari Wild was permitted by the Florida Fish and Wildlife Conservation Commission for Class I, II, and III animals which include lions, tigers, bears, cheetahs, leopards, bobcats, Patas and other types of new world monkeys, and hoof stocks. He found that an inspection of the site revealed the following animals: a rhinoceros and pygmy hippopotamuses, Patas Monkeys, wildebeests, impalas, muntjacs, watusis, bantangs, various types of antelopes, and other varieties of grazing animals that should not be mixed with Class I animals such as cheetahs. Also, he found that the Patas monkeys, which were supposed to be confined to an island, escaped; and that according to an inspector of the Fish and Wildlife Conservation Commission, the monkeys were unbelievably fast and mischievous and constituted a nuisance for residents of the Green Swamp Area in Polk County. The ALJ s findings of fact are based on competent, substantial evidence. Therefore, the Commission cannot reweigh the evidence and reach different findings of fact than the ALJ. See, e.g., Heifetz, 475 So. 2d at

7 Based on the findings of fact, the ALJ first concluded that the Safari Wild project authorized by the DO constitutes development Section (1), Florida Statutes, provides that the term development means the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels. The ALJ found that the Safari Wild Project has made (and has the potential to further make) material changes in the use and appearance of structures and the land that comprise the Safari Wild property in the Green Swamp ACSC Section (3)(e), Florida Statutes, provides that the use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or other agricultural purpose does not constitute development for the purpose of Chapter However, he found that, although an element of Safari Wild is an agricultural activity involving the growing of crops to be used as hay for feed on-site and for sale off-site, the Safari Wild project involves much more than that. In paragraphs 126 and 129, he found that Safari Wild would involve the conservation of Asian and African animals, their viewing by up to 500 visitors a day for amusement and entertainment in a safari-type vehicle and the introduction of their vehicular traffic, construction of infrastructure such as a parking lot and a road and buildings, addition of a man-made pond for the moat surrounding an island where the primates are now located, construction of restroom facilities and an aviary. Lastly, with respect to Safari Wild s claim that the Safari Wild project meets the definition of agritourism and therefore is not development, in paragraph 131, the ALJ concluded that whether the operation is agritourism is irrelevant to the question of whether it is 7

8 development. The list of commercial activities found in section (1), Florida Statutes, has no relation to the range of agricultural activities exempted under section (3)(e), Florida Statutes. The ALJ concluded that, as development and not an exempt agricultural use, the Safari Wild project and the DO must comply with all applicable land use regulations Based on the record, the ALJ s conclusions of law are as or more reasonable than any alternative conclusions of law. II. Is the Safari Wild Development Order Consistent with Applicable Requirements? Since before the time the present owners acquired it, the Safari Wild property has been classified as Agriculture/Rural Residential and located within the special overlay districts Green Swamp Special Protection Area and Rural Special Protection Area Overlay ( A/RRX and Rural SPA ) under the Polk County Comprehensive Plan. These designations permit agriculture and residences at a density of up to one unit per ten acres. 30, 36, 45, 59. The ALJ found that, in documents that are part of the development order for Safari Wild, one of the elements of the project is an 11,088 square-foot commercial building. In paragraphs 32 34, the ALJ highlighted provisions of the Polk County Comprehensive Plan governing what is permitted in Rural SPA, which he considered of import to his determination. 32. The cited provisions provide that Tourist Commercial Centers must be located at the intersection of arterial or major collectors. 34. However, the Safari Wild project is not located on an arterial or major collector road. Rather, the ALJ found that it is located on a rural minor collector road. 48. According to the cited provisions, one of the permissible land use categories in Rural SPA is 8

9 Commercial Enclaves. 33. However, the ALJ found that the Safari Wild project is not a commercial enclave In paragraphs 59-62, the ALJ found that the Polk County Land Development Code (LDC) includes in Section 501.E, entitled Table 5.2, Use Table for Green Swamp ACSC ( Use Table ), which he considered to be a provision highly significant to this case. The Use Table provides the list of allowable land uses in the Green Swamp Area. As the ALJ emphasizes, the Use Table goes on to clearly state that uses not shown are prohibited. 60. The ALJ cites a similar provision in Section 502 of the LDC. In paragraph 99, the ALJ found that the Safari Wild project is described in the DO documents as being approved as a farm and animal experience exhibition that will be open to the public. He found that such a use is not listed in the Use Table. In paragraph 68, he found that no land use in the Use Table satisfactorily describes the Safari Wild project. Finally, in paragraphs 102 and 103, the ALJ found that the road and buildings result in impacts to wetlands and floodplains. The ALJ s findings of fact are based on competent, substantial evidence. Therefore, the Commission cannot reweigh the evidence and reach different findings of fact than the ALJ. See, e.g., Heifetz, 475 So. 2d at Based on findings of fact that the various characterizations of the Safari Wild project are not listed as permitted uses and are therefore expressly prohibited under the Use Table, the ALJ first concluded that the DO was inconsistent with the Polk County Land Development Code The ALJ further concluded that the DO was also inconsistent with 507D and 507E of the Polk County Land Development Code, which relate, respectively, to the protection of 9

10 floodplains and wetlands Finally, due to the commercial nature of the Safari Wild project, the ALJ concluded that the DO was inconsistent with Policies D3, E1 and E2 of the Polk County Comprehensive Plan, Based on the record, the ALJ s conclusions of law are as or more reasonable than any alternative conclusions of law.... CONCLUSION AND ORDER Upon review of the Recommended Order and the entire record, the Commission hereby adopts the Administrative Law Judge s findings of fact, conclusions of law, and recommendation. The Development Order for the Safari Wild project is inconsistent with Polk County s Land Development Regulations, the Polk County Land Development Code, the Polk County Comprehensive Plan, and the Principles Guiding Development within the Green Swamp Area of Critical State Concern under Chapter 380, Florida Statutes. The use proposed for the Safari Wild property is fundamentally commercial in nature, and no such use is appropriate on land so situated within the Green Swamp Area of Critical State Concern and long designated for only agricultural and rural residential use. WHEREFORE, for the foregoing reasons, the Commission quashes the Development Order for the Safari Wild project within the Green Swamp Area of Critical State Concern. Section (3), Florida Statutes, provides that [i]f any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate any changes in the development proposal that would make it eligible to receive the permit. However, based on the ALJ s findings of fact and conclusions of law, the Commission cannot 10

11 identify any changes to the Safari Wild project that would make it eligible for approval. While the Commission finds the Safari Wild project to be irreconcilable with applicable requirements, it approves of the following on the subject land, if and only so long as the following corrective actions, conditions and parameters are satisfied: 1. Agricultural uses consistent with the Polk County Comprehensive Plan land uses allowed within the Green Swamp Area of Critical State Concern for the A/RRX land use designation, excluding commercial operations dependent on the general public coming on the land All existing structures on the Safari Wild property may remain and stay in use on the property, if and only so long as: i. The existing structures are in full compliance with the floodplain and wetland requirements of the Polk County Comprehensive Plan and Land Development Regulations; and ii. Use is limited to agricultural purposes only, such as animal rehabilitation and rest. 3. The Safari Wild property is in full compliance with all state and local permitting including the Southwest Florida Water Management District Consent Order corrective actions for the Safari Wild Environmental Resource Permit; and 2 This does not refer to land devoted to agriculture where the public is allowed to pick your own produce or other similar arrangements, where on-site sales are incidental and secondary to the land s agricultural purpose. This Final Order does not apply to such activities. 11

12 4. The Safari Wild property is in full compliance with all State of Florida Fish and Wildlife Commission licensing requirements with regard to the types and numbers of livestock and exotic animals allowed on the property. NOTICE OF RIGHTS Any party to this Order has the right to seek Judicial review of the Final Order pursuant to section , 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 Policy and Budget, Executive Office of the Governor, The Capitol, Room 1801, Tallahassee, Florida ; 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 day of November, 2010, in Tallahassee, Florida. JERRY MCDANIEL, Secretary Florida Land and Water Adjudicatory Commission FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this day of November, Clerk, Florida Land and Water Adjudicatory Commission 12

13 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 this day of November, Clerk, Florida Land and Water Adjudicatory Commission Honorable Charlie Crist Honorable Alex Sink Governor Chief Financial Officer The Capitol The Capitol Tallahassee, Florida Tallahassee, Florida Honorable Bill McCollum Honorable Charles Bronson Attorney General Commissioner of Agriculture The Capitol The Capitol Tallahassee, Florida Tallahassee, Florida Michael J. Barry Governor s Legal Office Room 209, The Capitol Tallahassee, Florida Michael S. Craig, County Attorney Anne Gibson, Assistant County Attorney Ellis E. Watson, Assistant County Attorney Polk County Post Office Box 9005, Drawer AT01 Bartow, Florida Thomas G. Pelham, Secretary C. Lex Salisbury Shaw Stiller, General Counsel Safari Wild LLC Richard Shine, Assistant General Counsel Mickler Road Department of Community Affairs Dade City, Florida Shumard Oak Boulevard Tallahassee, Florida Patricia M. Steed Stephen L. Wehrmann, DVM Executive Director 1099 Marco Drive Central Florida Regional Planning Council St. Petersburg, Florida Post Office Drawer 2089 Bartow, Florida

14 Honorable David M. Maloney Florida Administrative Law Reports Administrative Law Judge Post Office Box 385 Division of Administrative Hearings Gainesville, Florida The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida