New Recommendation on Proposed Island Hi-rise

It has been a while since I have published anything here. This is important local news and I feel like I should share.

This is my re-write and assessment of Administrative Law Judge (ALJ) Suzanne Van Wyk’s recommended order on Bay Harbor Marina Village, the proposed residential hi-rise on Main Street on San Carlos Island near Fort Myers Beach.

This is a proposed Comp Plan amendment and re-zoning. The case has been a hot topic and a debate over the future of this small island for years. This recommended order is specific to the amendment. The ALJ has recommended a finding that the proposed amendment is inconsistent with the county Comp Plan and with state statute, which would mean that the re-zoning could not take place and that the residential hi-rise could not be built. I doubt if this ends it.

Those who filed the challenge were Bill and Joanne Semmer of San Carlos Island. They are referred to as ‘Petitioners’. Their attorney was/is Ralf Brookes of Cape Coral.

I have re-written only for clarity and information and have done my best to relay the recommendation accurately. This is not the entire recommendation, of course, but I believe this is the most significant portion because it is the reason the ALJ rejects the amendment. The entire 47-page recommendation is worth reading. I wrote out some acronyms and deleted statute numbers and that sort of thing. Other than that this is what the ALJ had to say.

State Standards for Density in the Coastal High Hazard Area (CHHA)

162. Based on the Findings of Fact herein, the Plan Amendment does not meet the state standards for increased density in the CHHA.

163. The County has not attained, and cannot maintain, a 16-hour out-of-county hurricane evacuation clearance time in a Category 5 hurricane (Level E storm surge) with the Plan Amendment.

163. Nor does the Plan Amendment meet the state standards for increased density in the CHHA. The County has not attained, and cannot maintain, a 12-hour time-to-shelter for a Category 5 hurricane (Level E storm surge) with the Plan Amendment.

164. The undersigned rejects Bay Harbor’s interpretation which would allow the developer to mitigate only that portion of the hurricane evacuation impacts associated with the particular development (through either payment of fees, contribution of land, or construction of transportation improvements or shelters), when the County cannot otherwise “satisfy” the statutory requirement or to “maintain adopted Levels of Service for out-of-county hurricane evacuation,” or maintain “a 12-hour evacuation time to shelter,” respectively. That interpretation would render the first sentence of subparagraph 3 essentially meaningless.

165. “It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of [a] statute, if possible, and words in a statute should not be construed as mere surplusage.” The only interpretation which gives effect to each subpart of the section is to allow mitigation in those situations in which the local government cannot maintain either (1) the adopted out-of-county hurricane evacuation clearance time; or (2) a 12-hour time-to-shelter, if the plan amendment is adopted; but the developer can provide mitigation of the impacts associated with the development which will allow the local government to meet one (or both) of those adopted levels of service.

166. Likewise, the undersigned rejects the County’s and Bay Harbor’s alternative conclusion that the Plan Amendment meets the operative section because of the “absence of additional residential acreage for development in the [CHHA] of the Iona-McGregor planning community resulting from the Plan Amendment coupled with the de minimis and immeasurable effect on evacuation times [.] The County’s decision, reflected in its current Comprehensive Plan, to allocate additional residential development within the planning community is not dispositive of the issue whether allocation of that residential density meets the state statutory standards for increased density in the CHHA. Only circular logic would support such a conclusion.

167. Furthermore, the Trescott Memo is pure hearsay. (‘‘‘Hearsay’ is a statement, other than one made by the declarant while testifying at the … hearing, offered in evidence to prove the truth of the matter asserted.”). Although hearsay is admissible in an administrative hearing, it is inadequate, in and of itself, to support a finding of fact, unless it falls within an exception to the hearsay rule. There is no applicable exception to the hearsay rule for the Trescott Memo.

168. At the final hearing, some of the other expert witnesses restated Mr. Trescott’s conclusion that the Plan Amendment’s impact on hurricane evacuation and shelter times was de minimis, but their testimony, which was a recitation rather than an independent analysis, is insufficient corroboration of the hearsay statements in the memo. (“merely repeating a statement in the courtroom does not convert a hearsay statement into non-hearsay.”). Mr. Trescott did not testify at the final hearing and the undersigned, as the trier of fact, was denied the opportunity to observe his demeanor during either direct or cross-examination. The Trescott Memo is not credible evidence to support a finding that the impact of the Plan Amendment on either the out-of-county hurricane evacuation clearance time or time-to-shelter is de minimis.

169. Assuming, arguendo, the undersigned could find, based on the Trescott Memo, that the Plan Amendment would have only a de minimis impact on the County’s hurricane evacuation and shelter times, that finding would not be dispositive of the legal issue. The section does not include an exception for plan amendments creating a de minimis impact. Under the separation of powers, the undersigned cannot alter the wording of the statute. The interpretation advanced by the Intervenor would require the undersigned to add words to the statute which do not exist on its face. The undersigned may not interpret the section in a way that would extend or modify its express terms.

170. Petitioners demonstrated that the Plan Amendment is inconsistent with the section which provides the state standards for increased density in the CHHA, and that conclusion is not open to debate based on any grounds that are sensible.

Conclusion

171. For the reasons stated above, Petitioner has proven beyond fair debate that the Plan Amendment is not “in compliance,” as that term is defined in section 163.3184(1)(a).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Comprehensive Plan Amendment adopted by Ordinance 20-07 on June 17, 2020, is not “in compliance,” as that term is defined in section 163.3184(1)(b).

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