STATE OF FLORIDA OFFICE OF THE GOVERNOR AND CABINET IN RE: CABINET AIDES MEETING /

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1 0 0 STATE OF FLORIDA OFFICE OF THE GOVERNOR AND CABINET IN RE: CABINET AIDES MEETING / CABINET AIDES: MONICA RUSSELL, CHAIR KENT PEREZ ROB JOHNSON KRISTIN OLSON ROBERT TORNILLO ERICA ATALLA CHELSI HENRY JESSICA FIELD BROOKE McKNIGHT DATE: WEDNESDAY, MARCH, 0 LOCATION: REPORTED BY: CABINET MEETING ROOM LOWER LEVEL, THE CAPITOL TALLAHASSEE, FLORIDA NANCY S. METZKE, RPR, FPR COURT REPORTER C & N REPORTERS POST OFFICE BOX 0 TALLAHASSEE, FLORIDA -0 (0) - / FAX (0) - nancy@metzke.com candnreporters.com

2 0 0 INDEX Administration Commission By Jack Heekin Department of Veterans' Affairs By Colleen Krepstekies Board of Trustees By David Clark State Board of Administration By Dennis MacKee * * * * PAGE NO.

3 0 0 P R O C E E D I N G S MS. RUSSELL: Good morning, and welcome to the March th Cabinet Aides' meeting for the March th meeting of the Governor and Cabinet. The agenda for March th starts off with minute approval, and then we move into the Administration Commission, I believe we have -- MR. TORNILLO: I'm sorry. Before we get to that, I just wanted to add -- I didn't see it on the agenda. CFO Atwater is going to sponsor a resolution recognizing Holocaust Remembrance Day. MS. RUSSELL: Okay. MS. FIELD: What was it? MR. TORNILLO: Holocaust Remembrance Day. It's actually on April th, so April th is timely, so it works out really well. MS. RUSSELL: So you wanted to add a resolution? MR. TORNILLO: Yes. MS. OLSON: For this meeting or -- MR. TORNILLO: For this meeting. MS. OLSON: -- for the April th? MR. TORNILLO: For this meeting. Oh.

4 0 0 MS. RUSSELL: For this one? MR. TORNILLO: April th, that's right. MS. RUSSELL: The next meeting? MR. TORNILLO: Yeah. MS. RUSSELL: Okay. MS. McKNIGHT: Just two housekeeping items, I know the Governor and Cabinet discussed the Sunshine training at the last meeting. And so scheduling-wise, if any thought had been given to when we were going to add that to the calendar or if we were going to do that at an existing Cabinet meeting that's already placed, maybe where there aren't going to be as many business items. Just from a scheduling perspective, I know to get all four of them on the same path, I wonder if -- just to begin discussing that so that we can get it scheduled. MS. RUSSELL: Yeah, I think that we'll probably, as we move forward, discuss dates to make sure it works with everybody's schedule. MS. McKNIGHT: Got you. Just one last item, I know the Governor and Cabinet have upheld the tradition of visiting different areas of the state for Cabinet meetings, and typically we don't do it during the legislative session; but, again,

5 0 0 scheduling-wise, moving forward, if any thought had been given -- if we were going to continue doing that. I mean, you know, whether we go back to St. Augustine, I know that they're celebrating the 0th anniversary of being the nation's oldest city; or whether we go to the Keys when we get the Keys' report for areas of critical concern. I think that that's going to be coming before the Governor and Cabinet soon, so I'm just throwing it out there. MS. RUSSELL: Okay. MS. McKNIGHT: Again, it's a scheduling/planning thing. MS. RUSSELL: If you all -- actually if any, if all offices have suggestions or requested areas, they can send them to us and we can definitely start working on those. That works. MR. TORNILLO: Because I'll just piggyback on that. I know the CFO has been interested in trying to get to Palm Beach for multiple years now, so I think we actually had a -- I thought we had a commitment for August or -- I'm trying to remember exactly the day, but I'll find out exactly what it was. But if we can get to Palm Beach, I know the CFO would be very receptive to that.

6 0 0 MS. RUSSELL: Okay. Yeah, just submit wherever you all have suggestions for and we can work on that as far as work with all of the offices to make sure everybody can work with that. MS. McKNIGHT: Thank you. MS. RUSSELL: So just some housekeeping items, just make sure that you state -- we have a court reporter here, so just make sure you state your name for her before you give comments just so she can learn people's names to begin with to make it a little easier on her. And then that goes for the speakers as well, make sure you come up and state your full name so that she can record that to the minutes. * * * *

7 0 0 ADMINISTRATION COMMISSION MS. RUSSELL: So first then on the agenda we have the Administration Commission, and we have Jack Heekin here to present. MR. HEEKIN: Good morning. Jack Heekin, last name is H-E-E-K-I-N. On behalf of the Administration Commission, we have two items on the agenda for the Administration Commission today. The first, request approval for the minutes of the June th, 0, meeting. The second pertains to the case of Katie Pierola and Greg Geraldson versus Manatee County and Robinson Farms, Incorporated. This is a challenge to a comprehensive plan amendment, and they come before the Administration Commission for the entry of a final order. It comes now -- how you would like to present this, my intent when I present to the Cabinet is I will provide a summary of the adoption of the ordinance, followed by a summary of the challenge at the Division of Administrative Hearings, and then proceeding on to the standard of review that accompanies our review of these recommended orders,

8 0 0 and then leading on to the exceptions. There were exceptions that were jointly filed by Manatee County and the intervenor, Robinson Farms, that the Commission must address specifically in its final order, as well as then leading on to present that if the Commission does find the comprehensive plan amendment not in compliance, there are a couple of steps we have to take: We have to specify remedial action that will be necessary to undertake to bring the plan amendment into compliance, as well as we may reserve jurisdiction to impose sanctions in the event that the county decides to go forward with the plan amendment and not undertake those remedial actions. So how would you like me to best proceed today? MS. RUSSELL: So I think the way that you outlined probably would work for today, and then maybe we can -- unless anybody has any objections to that. Does that work? (NO RESPONSE). MS. RUSSELL: Okay. MR. PEREZ: I think that's fine. I mean obviously we're going to hear from the parties,

9 0 0 right? MS. RUSSELL: Yes, that's why -- MR. HEEKIN: Correct, yeah, and we have the parties right here on the front row on behalf of Robinson Farms. On the Cabinet day, we do intend that the county will bring their county attorneys, James Minix and Sarah Schenk. I've been in contact with counsel for the petitioners, Tom Reese, who said it is unlikely he'll be able to attend as a result of health issues. MS. McKNIGHT: Hey, Jack, just on that front, if somebody is not able to attend but they still wanted to participate, is there a teleconference capability? I mean is that something we could entertain? I don't know if his health would prohibit him from participating in that manner. MR. HEEKIN: We can look into that, if that's an option. He also expressed he might file a written statement. I urged him to do so sooner rather than later so that it could get to the Cabinet and the Governor before the meeting. MS. RUSSELL: Will you all work with the petitioners then to find out if that is in -- MR. HEEKIN: Absolutely. MS. RUSSELL: -- if they are going to submit a

10 0 0 0 written statement or if they -- MR. HEEKIN: I will follow up with him today to see if he's decided. MS. RUSSELL: -- or planning on participating, yeah. Okay. Thank you. MR. HEEKIN: Sure. So now would you like me to present the case? MS. RUSSELL: Yes. MR. HEEKIN: Okay. The matter comes before the Administration Commission for the entry of a final order. At issue is whether or not the Manatee County Comprehensive Plan Amendment is in compliance as that term is defined in Chapter of Florida Statutes. The plan amendment in this case was adopted unanimously by the Manatee Board of County Commissioners through Ordinance Number -0 on December th of 0. The plan amendment changes the future land use classification of approximately 0 acres of land owned by Robinson Farms, Incorporated, from Residential, which currently allows up to one dwelling unit per acre, to Residential, which authorizes up to three dwelling units per acre, with a maximum development of residential units on the 0-acre parcel.

11 0 0 The property is located in northwest Bradenton, Florida, within a designated coastal evacuation area, and all but. acres of the property is also located within a designated coastal high hazard area. The CEA and the CHHA are each defined within the Manatee County comprehensive plan and are governed by various objectives, policies, and goals within that plan. The petitioners in this case, Katie Pierola and Greg Geraldson, challenged the adopted comprehensive plan amendment at the Division of Administrative Hearings arguing, first, that the plan amendment was not adopted based upon the best available data and analysis; and second, the plan amendment rendered the Manatee comprehensive plan internally inconsistent because it conflicted with certain policies and objectives defined in the Manatee plan's coastal management element and future land use element. In challenges filed by an affected person as in the case, the statute requires a comprehensive plan amendment shall be determined to be in compliance if a county's determination of compliance with Chapter is fairly debatable. The fairly debatable standard is highly deferential

12 0 0 and requires approval of a planning action by a county if reasonable persons could differ as to its propriety. After an administrative hearing in this case, the Administrative Law Judge, Bram Canter, issued a recommended order. Judge Canter first held that the petitioners had failed to prove beyond fair debate that the plan amendment was not based upon relevant and appropriate data as required by Section., sub, sub F of Florida Statutes; however, Judge Canter held the petitioners had proven beyond fair debate that the plan amendment rendered the Manatee plan internally inconsistent as a result of conflicts with future land use element policies., sub A,., sub A, as well as coastal management element objective.. and COASTAL ELEMENT POLICY... As a result of his conclusion of internal inconsistency, Judge Canter recommended the Administration Commission enter a final order finding the plan amendment not in compliance with Chapter. Now as for the standard of review, the Administrative Procedures Act, which governs the review of the recommended order in this case,

13 0 0 provides the Commission will adopt the ALJ's recommended order except under limited circumstances: The recommended order contains findings of fact and conclusions of law entered by Judge Canter following a fact-finding hearing. Findings of fact in the recommended order may not be rejected by the Commission or modified unless it is determined that the findings were not based upon competent and substantial evidence in the record below. In reviewing the ALJ's findings of fact, the Commission's consideration is expressly restricted to the record from the proceedings below. Additional evidence may not be considered by the Commission. Also, the weight assigned to conflicting evidence is a matter that is exclusively reserved for the Administrative Law Judge and may not be reconsidered by the Commission. The Commission is, however, authorized to modify or reject conclusions of law over which it has substantive jurisdiction provided it makes a number of findings. To reject or modify a conclusion of law, the Commission must state with particularity the reasons for the modification or

14 0 0 rejection and must find that its substituted reasoning is as or more reasonable than the conclusion reached by the ALJ in the recommended order. Importantly, mislabeling a finding of fact as a conclusion of law, or vice versa, is not dispositive as to the effect of that statement. One must look at the substance of the statement in the recommended order to determine whether or not it is an appropriate finding of fact or conclusion of law. This is particularly relevant in this case because, based upon my review of the recommended order, the Administrative Law Judge improperly labeled as findings of fact a number of statements that are more appropriately characterized as either mixed findings of fact and conclusions of law or pure conclusions of law, excuse me. The introduction of the exceptions, now in this case, respondent and intervenor, Manatee County and Robinson Farms, jointly filed exceptions to the recommended order. Neither petitioner filed their own exceptions and neither petitioner filed responses to the exceptions filed by respondent and intervenor.

15 0 0 In its final order, the Commission must rule on each properly filed exception that specifically identifies the disputed portion of the recommended order, the legal basis for the exception, and appropriate citations to the record. The exceptions filed by respondent and intervenor relate to Paragraphs,,,,,,,,,,, and -- or, and, excuse me. Introduction of our speakers, on behalf of the respondent, we will have James Minix, who is the county attorney, and Sharon Schenk. I believe Mr. Minix will be the sole speaker on behalf of the county. On behalf of the intervenor, we have Cynthia Henderson who will be the chief presenter. We have Linda Shelly who also represents the intervenor. We have Former Senator Pat Neal, Miss -- I apologize, I forget your first name; and Mr. Newman, John Newman. And I will -- I think now it's important to determine how we'd like to present the exceptions. If we'd like to go one by one, if we'd like to have the parties present their argument on the exceptions, that's really up to the panel. MS. RUSSELL: I don't know if I have a

16 0 0 preference. MR. PEREZ: Can I ask a question on that, Madam Chair? MS. RUSSELL: Sure. MR. PEREZ: So, Jack, I mean I think obviously both would have to occur. It's a question of -- I don't know who necessarily has to go first, but I think at some point you need to walk us through all exemptions (sic) -- MR. HEEKIN: Sure. MR. PEREZ: -- and we can discuss that. If you want to do that first before we hear argument from both sides, we can do that. I mean I have questions in the broad sense on several areas in the recommended order, which we can get to after the arguments with I guess whoever the proper party is going to answer them, or help me get answers. MR. HEEKIN: Okay. I'll provide a summary of the exceptions that were filed by respondent and intervenor. I'm sure that our speakers would be more than happy to correct me if I misstate what they were intending. MS. RUSSELL: Can we do it this way then? Can we do the exceptions, the parties' presentations, and then all questions at the end?

17 0 0 Does that work? MR. PEREZ: That might work, Madam Chair, but I'd like to throw questions in when they bring the topic up because sometimes -- I mean I can go back, but usually when they -- it depends on how, if you want to run it that -- you know, we can do it that way, or we can do it a little more loose and just kind of hit the issues as they come up. I mean it's up to you. I mean I -- MS. RUSSELL: Well, let's try it that way, and if it doesn't work, we can reevaluate; but let's try to do it in a -- allow them to finish, allow the petitioners to finish, and then we'll save all questions for the end, if that works for everybody. MR. PEREZ: Okay. MR. HEEKIN: Okay. Would you like to make statements? MR. PEREZ: Do you want to do the exceptions first or -- MS. RUSSELL: Yeah, are you going to do the -- unless you say that that's -- MR. HEEKIN: Would you like me to provide a summary of the exceptions? MS. RUSSELL: Yes.

18 0 0 MR. HEEKIN: Okay. I'm sorry, I misunderstood. Exception -- the first exception filed by the respondent and intervenor pertains to what was labeled as finding of fact in the ALJ's recommended order. In sum, the respondent and intervenor argue the ALJ improperly found the plan amendment was inconsistent with coastal management element objective.. and policy..., because he erroneously interpreted the future land use element policy., subsection A to prohibit any increase in residential density in the coastal evacuation area. Specifically, the respondent and intervenor argue that when determining the consistency of this plan amendment with their Manatee County comprehensive plan as a whole, they evaluated not just the effect of the plan amendment on the 0-acre parcel that was the subject of the plan amendment, but on the entire,-acre coastal planning area. As a result of that review, they also took into consideration prior reductions in residential density that have taken place in that,-acre area since 00. Since that time, Manatee County

19 0 0 has removed approximately 00 units, residential units from the books by converting the property from Res to conservation. Therefore, the county argued -- or county and intervenor argued that they were able to reach a fairly debatable determination that there was not going to be an increase in residential density on a net basis across the entire area. As for exception -- MR. PEREZ: Could I -- MR. HEEKIN: Yeah. MR. PEREZ: I'm sorry, Madam Chair. I think it would be better honestly if you don't mind if I could throw questions in at this stage, because I have questions that would be specific to that particular paragraph. MS. RUSSELL: Yeah, if you would like to change, we can do that. MR. PEREZ: Thank you, I appreciate it. I think that would be helpful, so we don't go back over the whole -- all the issues again. But, Jack, on this exception here, so -- and I don't know if you can answer it. Obviously I understand that was testimony that was presented. So is there any statement in the comp plan for a

20 0 0 0 maximum density for the county HHA? MR. HEEKIN: There's no express statement saying it would be capped at X number. MR. PEREZ: But there are other counties that do have a cap? MR. HEEKIN: I'm not -- I couldn't speak to that at this time. The cap would be -- all of the properties in the coastal area are currently designated as Res. As to whether or not that's a specific figure, I don't believe that's included in the Manatee comp plan. MR. PEREZ: So they took testimony on -- I'm sorry, Linda. I mean help me -- they took testimony on the down planning, the net effect. Did they get into the, you know, kind of like in the Leeward case where they talk about the (inaudible). Did they get testimony into that area from the record below? I haven't read the record, but I'm trying to understand their argument. MS. RUSSELL: These would probably be Manatee County questions, correct, not Jack questions? MR. PEREZ: Well, yes, they're -- well, yeah, they would be questions relevant to Chapter because that's where it all took place. And

21 0 0 somebody -- if anybody can answer them, it would be great. MS. RUSSELL: Okay. MR. HEEKIN: Would you like to? MS. SHELLY: Thank you for the question. Linda Shelly, Buchanan, Ingersoll & Rooney, on behalf of Intervenor Robinson Farms. First, I want to clarify that not all sites within the coastal high hazard area or the coastal evacuation zone are designated Res. In fact, the future land-use map which was a part of the record below clearly shows a surrounding area filled with Res, which is the category that was sought and was approved by the county in this case, so -- MR. PEREZ: Isn't that a key distinction, Linda, when you kind of look at the analysis in the Leeward case? MS. SHELLY: It is an important correlation between this case and the Leeward case. And I want to point out, one of the reasons that the intervenor and the county filed a draft final order and a draft amended final order is to save us from getting in the weeds in front of the Governor and Cabinet on each and every one of the exceptions because, in totality, the exceptions all relate to

22 0 0 the basic fundamental premise that the opinion of the ALJ was just that; it was an opinion, it was a legal opinion that this plan prohibits any increase on any site. That is fundamentally the distinction we have here, because the language of the plan in both policies says "sites." And the testimony was offered by the planning director and was offered before the county commission in exhibits that are part of the record that all indicate that they were looking at a larger area of, acres in which property had been purchased, in fact from the intervenor earlier, a few years earlier, and that had gone from Res to conservation, therefore eliminating 00 units of residential density on that property. So the ALJ in his mind, convinced of how this interpretation should be, said, well, we don't want to care about that, we don't care about the Leeward analysis when, in fact, during that period of time as those cases were moving forward, and the Leeward case was a good example of it, it was quite common in coastal areas for there to be an offsetting density; and that's what's discussed in the Leeward case.

23 0 0 MR. PEREZ: Madam Chair, I mean looking at it though, Linda, it looks like he just gets tripped up on the word "prohibit" because everyplace else is limit, limit, limit. MS. SHELLY: Right. Right. MR. PEREZ: When you get to that one policy -- MS. SHELLY: Right, he does. MR. PEREZ: -- that's his distinction in his final order that prohibit -- MS. SHELLY: Yes. MR. PEREZ: So it's the position of the county that there's no moratorium or flat out prohibition on development -- MS. SHELLY: That's correct. MR. PEREZ: -- or additional dwelling units per acre? MS. SHELLY: That's correct, as long as you don't exceed the net density. MR. PEREZ: As long as you don't exceed the net density. MS. SHELLY: That's right, and so very -- many coastal areas, particularly in southwest Florida, had offsetting densities. You might have gone from residential to commercial, therefore eliminating residential density. Commercial is not an issue

24 0 0 when you're talking about hurricane evacuation and shelter space. And that would be counted; that would be a net offset, and that's how it was done in many coastal areas. He just ignored any testimony on that issue because he was like, well, can't do it at all. MR. PEREZ: Okay. So there is no maximum density in this particular plan? MS. SHELLY: That's correct. MR. PEREZ: And there's no -- is there any language besides the language that he finds in paren A on some kind of prohibition of development or flat out -- MS. SHELLY: The language that he was relying on is identical, except for it applies in one instance to the coastal evacuation area, and the other instance in the coastal high hazard area. That's the critical language in this case. MR. PEREZ: Thank you, Madam Chair, that was all I had on that. MS. RUSSELL: Okay. Jack, do you want to continue? MR. HEEKIN: Sure. As to the second exception, it pertains to finding of fact, paragraph. The respondent and intervenor argue

25 0 0 that the ALJ's finding of internal inconsistency of the plan amendment with the coastal evacuation area policies is not supported by competent and substantial evidence because the Manatee board was able to establish consistency on a net basis. It's the same argument incorporated from their first exception to apply specifically to the CEA policy, which is., sub A. The third exception is as to finding of fact, and it's the same argument except it pertains to the CHHA. They say that the ALJ improperly determined that there was inconsistency with the CHHA policy when the Manatee board was able to establish consistency on a net basis evaluating the impact on the entire,-acre area. Their fourth exception pertains to finding of fact, which argues that the ALJ's finding of internal inconsistency of the plan amendment with the CEA and CHHA policies was not supported by competent and substantial evidence; and therefore, the provision that calls for the CEA and CHHA policies to override any conflicting goals, policies, and objectives should not become operable because the board was able to achieve internal consistency on a net basis, so there is no

26 0 0 conflict. The fifth exception is to finding of fact. The Administrative Law Judge -- the respondent and intervenor argue, excuse me, that the ALJ finding that past reductions in residential density on other areas of the CHHA was not a valid consideration, ignores the county's fairly debatable determination when evaluating the impact on the entire area, the,-acre, and the past reductions in residential density in the area since 00 and, therefore, they were able to achieve consistency on a net basis. And I should actually step back here and point out that these findings of fact are the statements that I referred to earlier that were mislabeled as pure findings of fact. In reality, finding of fact,,,, 0,, and are not pure findings of fact;, and, I would say are, at best, mixed findings of fact and conclusions of law, the finding of fact being that the plan amendment in question would increase residential density on the 0-acre Robinson Farms parcel, and then the conclusion of law being the consistency of that increase in light of the policies of the coastal management element and the future land use

27 0 0 element. The consistency is the conclusion of law here, and that is the key argument that the Administration Commission would be able to reverse if it determines that the respondent and intervenor's arguments are as or more reasonable in their interpretation of the law than that reached by the ALJ. For finding of fact, 0,, and, I believe those are better categorized as pure conclusions of law. Each pertains to an interpretation of plan provisions as opposed to a pure application of facts, or determination of fact. Are there any questions on that point? MS. FIELD: Can I just ask a quick question, Monica, and group, for us to consider? I don't know if at the Cabinet meeting, does it make more sense to have the intervenors walk through their individual exceptions -- I know you mentioned that -- have Jack talk to the findings of fact versus conclusions of law or follow up? I don't know. Are we planning to walk through -- have Jack walk through each exception and then have the

28 0 0 intervenors -- I'm sorry, the -- yeah, and the intervenors walk through each exception? Because essentially those exceptions, we're going to go back through everything when they come up to present. MS. RUSSELL: So, yes, I'm seeing I think that that would probably be a better option now. MS. FIELD: I'm just wondering -- Kent, I know you suggested Jack walking through them, too, but does it make more sense for them to walk through? MR. PEREZ: I mean either way you're probably going to touch it from one side or the other. I mean the point that I think Linda is making, if I understand it right, even all of the exceptions are going to come down to the down planning, net reduction argument, no matter what, because that's the answer or the counter to the explanation -- the specific paragraphs that are listed in the Judge's recommended final order. MS. FIELD: Which is most expanded, it looks like, in exception, which may be more fluid if they can just make their argument all at once, I don't know if that makes more sense, and then have Jack come up if we have questions for staff.

29 0 0 MR. PEREZ: I mean either way we do it, I think Linda kind of summed it up. I mean, Jack, you know, like -- obviously up to, basically the same thing, I had one little question on, but it's all the same issue. MS. McKNIGHT: Does the Governor and Cabinet not have to still either deny or approve each exception now? MR. PEREZ: They do, yes. MS. McKNIGHT: So we're going to have to walk through them ultimately. MR. PEREZ: Yes, they do. It's probably good for the principals -- it's probably good for the lawyer to take the principals through every one of those exceptions. I mean obviously that doesn't prohibit -- and, you know, Madam Chair, the Governor as chair will make that determination, but that should also allow each one of the parties to address the exceptions separately if they want to. MS. RUSSELL: Sure. MR. PEREZ: But the way like Linda expressed it, she can address all of those exceptions in one argument -- MS. FIELD: Sure. And I don't think she was

30 0 0 0 finished. I don't know, Linda, it seems to me there was more argument there than what was just presented. So I don't know if it makes sense for her to do it and then staff -- MS. RUSSELL: Well, I think right now they were just doing what we originally decided on where Jack was going to go through all, and then they were going to be given their opportunity to go through theirs as well. MS. FIELD: Fine. MS. RUSSELL: And then at Cabinet we will also have the petitioner here, too. MS. FIELD: I don't know that they will be here, but that's -- I mean that's fine, whatever you think. I just wondered if it made more sense for them to state their case and then us or the Cabinet have questions, or staff for Jack -- MS. McKNIGHT: These are their exceptions. MS. FIELD: It's up to you all, whatever you prefer, because it would be helpful for Jack to then explain what's actually a finding of fact versus a conclusion of law and get us straight on those so that the Cabinet knows what they can do. MS. RUSSELL: So you're suggesting then have Jack introduce each one and then have the

31 0 0 respondent come up and explain that? MS. FIELD: Or they could go through their exceptions and then Jack could -- MS. RUSSELL: And Jack could follow up and do the same -- MS. FIELD: -- speak if we have questions for those. What do you think, Kent? MR. PEREZ: One thought is I mean since -- here at Cabinet Aides I mean we have an abundance of time. We can go through this and, you know, we can go back and forth and jump wherever we need to. I would imagine at Cabinet that Jack would do an over -- you know, lay everything out, including probably the exceptions. MS. FIELD: Okay. MR. PEREZ: And I would guess, depending on what the chair's preference is, that then, you know, 0 minutes, minutes each side, and they can come back and hit whatever highlights they want to. It won't bounce back and forth. And, you know, if they get into a question/answer period from the principals, then everybody is available. MS. RUSSELL: Yeah, and that was sort of the format I was trying to set up in the beginning, but

32 0 0 I don't know if that's -- MS. FIELD: Okay. That's fine. It just seemed that he was hitting some of their points really that they wanted to elaborate on, but that's fine if you want to have him hit them -- whatever is the group's preference. MS. McKNIGHT: And I do think that what Jess is getting at is this is obviously a unique item coming before the Board. Typically, not always, but typically there is a draft final order and so the Cabinet -- the Governor and Cabinet are going to be operating off of what the ALJ has provided as his recommended order, and then, of course, the exceptions. So unfortunately, I think it is important to take the time and carefully walk through what the ALJ has stated and then allow for Jack to provide, you know, this is our take on it; and then go through the exceptions and then have Jack say, okay, this is our take on it. I mean this is just different than what the Cabinet would typically consider, so I think it just needs to be handled a little more point by point to make sure they are getting the full story. MR. PEREZ: No, I agree. I mean and I think

33 0 0 that's what we're doing here; and obviously -- that's, ideally, what they should do at the Cabinet meeting, and I think Jack will do that. He'll probably walk them through a summary of the exceptions; and then, you know, when each side gets up, they can touch on the exceptions. Obviously we already heard from Linda; she's already wrapped up all of the exceptions into one basic, you know, explanation which was very helpful. MS. RUSSELL: Yeah, she just answered the question you had, too. MR. PEREZ: Yeah. MS. RUSSELL: So they would probably -- I would imagine Cabinet would allow the presenters to finish and then ask the questions. I mean maybe not though. MR. PEREZ: Yeah. MS. FIELD: I think -- and Brooke was suggesting probably walking through the -- staff walking through the individual findings of fact and conclusion of law, and then, you know, whether they turn it over to the intervenors to go through their own exceptions and then have staff answer that; or if staff presents each exception and then they go through each exception, it's -- but what we didn't

34 0 0 do today is walk through the findings of fact and conclusions of law individually to give them some foreground to what then the exceptions are answering. MS. RUSSELL: So we -- MR. HEEKIN: I'd be happy to do that if you'd like. I've drawn out parts that -- I believe what are the findings of fact and conclusions of law. MS. RUSSELL: Yeah, I thought he sort of did a summary of which ones he believed were findings of fact and which ones were conclusions of law. MS. FIELD: He said -- he differentiated which were findings of fact and conclusions of law but not what they actually -- what the content of them were. MS. RUSSELL: Right. Okay. I see, so you are -- so you would prefer that at Cabinet, or you wouldn't? MS. FIELD: I'm saying before we get to the exceptions, it makes sense for us to discuss what the ALJ's findings of fact were so we know what the exceptions are, too. MS. RUSSELL: Oh, yeah. MR. PEREZ: But I think -- I'm not -- I think

35 0 0 where he's coming from is he's -- the ability that the Cabinet will have to view the interpretations put forth by Canter here are going to sit within the exceptions. So if they sit within the exceptions -- MS. FIELD: Within the first one I think, yeah. MR. PEREZ: And that's where he explained, like, for example, number, he dissected to explain what parts of it may be really more of a finding of fact versus a conclusion of law, that's a mix. So I think it would be key -- and I see what you're saying, but at least in those -- I don't know that we need to go through all 0 paragraphs on which ones are findings of fact and which ones are conclusions of law. Am I understanding that right, Jack? MR. HEEKIN: And I wouldn't go through all 0 paragraphs because not all of them are particularly relevant to the argument before the Commission. MR. PEREZ: Or -- MR. HEEKIN: There are, I believe, three findings of fact and it looks like seven conclusions of law that I've parsed out of those

36 0 0 0 paragraphs, just the broad findings and conclusions of the ALJ, which are really in dispute here. And I'd be happy to present those to you now. MR. PEREZ: And keep in mind, Jess, that these are just Jack's opinions as a lawyer. MR. HEEKIN: Right. MR. PEREZ: I mean other lawyers could read this and say, oh, okay, the way I read it -- you know, and I'm not -- I'm just saying -- and that's his job though, you know, he's our lawyer so he's giving us the areas that, you know, he is going to explain may include mixed questions of both, or that he sees as one or the other. MS. FIELD: I see. MS. HENRY: Question: So, Jack, the three findings of fact and the seven conclusions of law that you've kind of picked out, are they not within the exceptions? MR. HEEKIN: They're challenged within the exceptions, yes. The conclusions of law pertain to the consistency of this plan amendment with the various objectives, goals, and policies of the elements of the Manatee plan. MS. HENRY: Okay.

37 0 0 MR. HEEKIN: The findings of fact pertain to the location of the property. And I believe based on the witness testimony and just simple arithmetic that the plan amendment in this case will increase density on the 0-acre parcel that is the subject of the plan amendment; but what the argument of the respondent and intervenor pertains to is that they didn't just look at that 0-acre parcel, they looked at the entire area when evaluating the impact. MS. HENRY: Okay. I was just asking because I was wondering, if you go into detail with those ten points, and then go through the exceptions, will the Cabinet then be hearing that information twice versus when you are going through the exceptions. As their attorney, you would be hitting on those ten points that you pulled out from the recommended order. MR. HEEKIN: I think they would be duplicative, they would be hearing these same arguments again and these same points again. I don't know if that would be helpful or not to the Commission. MS. HENRY: Okay. I can say, so far from what you're going through with how you've been detailing

38 0 0 the exceptions, I think that's very helpful and that's very clear for the principals without going super into the weeds; so I definitely like that, how we're doing that so far. MR. HEEKIN: So just to be clear, in the Cabinet meeting, you'd like me to present a summary of the exceptions, and then allow the respondent and intervenor to come up and give their presentation? MS. RUSSELL: Yes, because what we were planning -- for today we were planning on him doing the, as well as the ALJ's findings, and then we were going to allow it. So is that everybody's preference now? Do we want the -- MS. FIELD: Would that be in that order? I'm just curious because -- MS. McKNIGHT: Let's do this how we're going to do it at Cabinet is I think what we're getting at. MS. HENRY: Yeah. MS. RUSSELL: Right, that was my -- MS. FIELD: And I think that you -- MS. RUSSELL: I was trying to. MS. FIELD: And the uniqueness about this one and the point I think we're trying to make is

39 0 0 previously staff has provided a draft final order for consideration by the Cabinet in this case, and I don't know about moving forward -- there's not a draft final order for them to go point by point. So it does make sense to me, and whatever you all feel, to walk through the ALJ's recommended order and then go through the exceptions, whether it's Jack making a summary or -- it sounds -- I mean to me the intervenors are going to -- I don't know that it's any more elaborate than what Jack goes through, but I'll leave that up to them, so whatever -- MS. RUSSELL: I thought Jack said in the beginning, maybe I misheard it, but I thought Jack said in the beginning he was going to go over the ALJ's final order as well, in addition to the exceptions. MS. FIELD: That's great. I just -- we didn't do it, so I didn't know -- MS. RUSSELL: He's presenting both. MS. HENRY: That makes sense. MS. FIELD: As in after -- MR. PEREZ: I'm confused, guys. I'm not sure you want to conduct Cabinet Aides the way you

40 0 0 0 conduct the Cabinet meeting. I think, you know, our purpose here is to gather all of the information and to fact find and to get as much as possible, and we can bounce -- MS. FIELD: That's fine. MR. PEREZ: I mean typically we bounce everywhere, you know, make sure our answers are answered. MS. FIELD: That's great, absolutely. MR. PEREZ: I think you need more of a structure once you get to Cabinet. MS. McKNIGHT: I don't think we disagree with that. I just think we want to make sure -- whatever information is going to be shared with the Governor and Cabinet, we obviously want to make sure that we're hearing it, and then beyond what other questions we'll have from that so that we can then follow up with our principals, you know. So I feel like we definitely complicate this. I apologize, but -- MR. PEREZ: Yeah, so I mean I think we just keep -- they just need to keep shoveling information at us, so however you want to do it is fine with me. MS. RUSSELL: So let's continue. So you're --

41 0 0 MR. PEREZ: If you want to walk through the whole order paragraph by paragraph, we can do that, or if you want to, you know -- MS. RUSSELL: Well, I would like him to go over the ALJ's final order. I don't know if we need to do that prior -- do you want to just -- why don't you just continue that, so now you're presenting both sides, and then we'll have the petitioners and intervenors and everyone else speak as well. MS. HENRY: May I ask a question? MS. RUSSELL: Sure. MS. HENRY: Because I just want to understand. So when we're saying for Jack to go through the recommended order, is that different from the summary he provided in the beginning? Because I thought with the summary he was going through -- are we asking -- I just want to understand. Are we asking for more information besides what he did in his summary before he started with the exceptions? MS. RUSSELL: It sounded like Brooke and Jessica wanted him to specifically go over the ALJ's final order in addition to the summary? MS. FIELD: I think what we did was just go

42 0 0 over what the issue was and then what his recommendation was. I don't know that we hit each finding of fact and conclusion of law by the ALJ in which the exceptions are responding to. That was our only point. So if it's preferred we just go -- and we just outline what the Cabinet is going to get so that we can understand what we're going to do at Cabinet, that's helpful; and we do it however we want today just to get the information that we need, that works, too. MR. HEEKIN: So prior to explaining the exceptions or providing a summary of the exceptions, I'll walk through those findings of fact and conclusions of law that the recommended order contains, and then I'll move into the exceptions. Is that going to be more helpful? MS. FIELD: I think that would make sense to us if that's preferred. MS. RUSSELL: So you're talking about how at Cabinet you want it to be presented? MS. FIELD: Right. MS. RUSSELL: Okay. Okay. MR. HEEKIN: Would you like to proceed with the exceptions, or would you like to have those

43 0 0 findings of fact now? I'll just go with the findings of fact. MS. RUSSELL: Finish with the -- yeah, let's finish with the exceptions. MR. HEEKIN: Okay. MS. RUSSELL: And then we can go into the findings. MR. TORNILLO: Not to throw a monkey wrench in this, but just to ask a quick question, Jack, as our attorney and as the Commission staff: Why can't you just -- it seems like it would be easier if we had a draft final order. Why don't -- why can't you just give us a draft final order? It would make this whole process I think a whole lot easier for the Commission, when they're sitting up, they've got a draft final order from their attorney, from their staff, and they could work off of that. I mean is there a reason why you don't have a draft final order in front of us? MR. HEEKIN: I can provide guidance as to the Commission's ability to change particular portions of the recommended order, but the Administrative Procedures Act cloaks that recommended order in a presumption of correctness. Now, obviously, the

44 0 0 exceptions argue particular points of the recommended order that should be changed based on the interpretation of law. I can provide you guidance on that. As to providing you with a final order, I was concerned that that would be an inappropriate approach on my part when the decision is really up to the Governor and Cabinet sitting as the Administration Commission and not the attorney operating behind the scenes. MR. TORNILLO: The decision is theirs, but it's no different than any other agency where the agency head is giving a recommendation. I mean we rely on you. I mean they rely on you as staff. I guess I'm just a little confused -- MR. PEREZ: Well, I think, R.T., one difference -- I mean here what will happen is, obviously, what they're going to look at is the recommended order from the ALJ. So I'm sure if our lawyer gets a question as to what his recommendation is, he'll be able to answer that question. And I'm sure he probably already knows what a draft final order would look like. But what he's looking for I'm sure is direction from the Administration Commission once

45 0 0 he lays out the options for them. And I would imagine, knowing Jack, he's probably got -- you know, he's already in his head ready to go in whatever direction they give him. Does that make sense? MR. TORNILLO: No, I hear you and it makes sense, I just -- I think it would be helpful, but I get it. MR. PEREZ: Obviously, you know, if he came -- obviously they can adopt the proposed -- the recommended order from the ALJ. MR. TORNILLO: Right. MR. PEREZ: Or they can look at the areas that he will, you know, reference as giving them some options should that be their interpretation and their understanding, and that's what he wants to do. MS. SHELLY: Linda Shelly again. This is the very reason that the intervenor and the county, who adopted our amended draft final order, did that; because we wanted you to see that it was perfectly legal, there was a path to a decision that would rule in favor of the county. And that's why we put that proposed draft final order in front of you.

46 0 0 And we will ask that it be adopted, or something similar to it be adopted, because it lays out the legal standard that is applicable. It is true, and it's just kind of an unusual circumstance, since 0, the Department of Community Affairs, now Economic Opportunity, used to be a party to all of these cases. And so the state land planning agency and all of their expertise would be brought to bear and would be another voice being heard by the Governor and Cabinet with subject-matter expertise and jurisdiction over the issues. And since 0, they are not allowed to participate when a third party challenges a local government. And so they found the plan in compliance -- the plan amendment was in compliance as far as they were concerned, and so they have been silent. So that creates, Mr. Tornillo, a little bit of a different situation than we've had in years past. MR. PEREZ: I'm with you, Linda, on that, but their review is now limited. It's not the Rule J- kind of thing that existed before, so -- MS. SHELLY: Absolutely. They're, they have -- they're limited to -- MR. PEREZ: So it doesn't help us much when

47 0 0 they say they are in compliance. MS. SHELLY: Very good point. They are limited to important state resources and facilities, which they did not find, that could be the reason for them to find it in compliance. It's also probably inarguably in compliance with state requirements for coastal protection, and so this is an issue of whether the local plan -- it is solely an issue of interpretation of these two provisions in the local plan. MR. PEREZ: And I think, R.T., that's probably speaking to your point on it may have been easier with the proposal. MS. FIELD: Quick question, just moving forward, do we plan on having draft final orders, or is this one truly unique, or is this a new trend do you think, just to give the Administration Commission the full levy to do what they wish? Even though I think, R.T., we would probably agree with you that it makes sense to, as staff, lay out a draft final order even though this one is different. They can obviously do whatever they wish based on that, but it gives them some grounds to kind of go on. So in the future, are we planning to do

48 0 0 draft final orders, or are we going to back off of those, or -- MR. HEEKIN: I think that's really up to the panel. If they'd like draft final orders to be drafted, that's our job as staff, to fulfill the requests that the panel has. MS. RUSSELL: I think it will be case dependent, don't you? I mean I don't know that we can just make a sweeping statement. I mean given this one, it seems very complicated. MS. FIELD: I would think consistency would be better regardless of the case, but Kent is shaking his head no. MR. PEREZ: I mean I think the objective coming from the lawyer's perspective is he sees merit from either perspective here. MS. FIELD: Sure. MR. PEREZ: He wants to get direction, obviously, from the Administration Commission. I mean if there's merit to legal arguments on both sides, I think -- and, Jack, you speak for yourself. MR. HEEKIN: No, that's correct. I mean it is a -- there is support for either avenue that the Commission wants to take.

49 0 0 MS. McKNIGHT: In that perspective though, I mean, Jack, will you be comfortable if, you know, the Commissioner or the AG or the Governor, CFO, if they pose to you, hey, Jack, on this one, what's your recommendation? I mean I just feel like you should be prepared. I don't know how it's going to play out, but certainly we're going to look to you for guidance as staff where some of those areas may seem gray, for some clarity, and what's your recommendation. So I just -- I would hope that if that were to occur, that you would be prepared to give your opinion one way or the other and not like, well, this is gray. I mean at that point I think they are looking for guidance: It was white; no, it's black, you know. MR. HEEKIN: Okay. MR. PEREZ: It's funny, Brooke, I said the exact same thing to him. I'm sure he's prepared whatever -- I'd imagine he's -- you know, in his brain he knows what either draft order looks like. MR. HEEKIN: Thank you, Kent. So where would you like me to pick up? We can continue going through the exceptions, I can present you with what the findings of fact and

50 0 0 0 conclusions of law were, the broad categories from the recommended order. MS. RUSSELL: I say we continue going through the exceptions, then we go to the ALJ's final order, where we can point out -- does this work for you all? Is this what you wanted? MS. FIELD: Personally, I think it makes sense to go through the recommended order first, and then go to the exceptions because that speaks to the recommended order. MS. RUSSELL: Okay. Can we plan to do that at Cabinet then and finish -- MS. FIELD: Whatever you desire. MS. RUSSELL: Okay. So why don't you just finish, and then we can go to the recommended order, and then we can go to the parties. MR. HEEKIN: Okay, I believe we were up to exception. Respondent and intervenor argued that the ALJ erroneously concluded the Manatee plan prohibits any amendment that would increase residential density in the coastal high hazard area when the county was able to determine on a net basis and made a fairly debatable determination that it did not increase residential density on the entire -- on sites, plural sites,, acres