00-003041GM 1000 Friends Of Florida, Inc. vs. Department Of Community Affairs And The City Of Stuart Status: Closed Recommended Order on Thursday, January 11, 2001.

Summary: Agency intent to determine City`s plan policies in compliance. Recommended one policy deferred planning in joint planning area to inter-local agreements; other policy incorporated the deferred planning; both not in compliance for that reason.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1000 FRIENDS OF FLORIDA, )

INC., )

)

Petitioner, )

) Case No. 00-3041GM

vs. )

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and THE CITY OF )

STUART, )

)

Respondents. )

_____________________________ )

RECOMMENDED ORDER

On October 9, 2000, a formal administrative hearing was

held in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Terrell K. Arline, Esquire

Legal Director

1000 Friends of Florida

926 East Park Avenue

Post Office Box 5948

Tallahassee, Florida 32301

For Department: Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For City: Robert C. Apgar, Esquire

Yeline Goin, Esquire

320 Johnston Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

The issues in this case are whether certain amendments to

the Intergovernmental Coordination Element (ICE) of the

Comprehensive Plan of the City of Stuart (City), adopted by

Ordinance No. 1702-99, are "in compliance," as defined in and

required by the "Local Government Comprehensive Planning and

Land Development Regulation Act," Chapter 163, Part II,

Florida Statutes.

PRELIMINARY STATEMENT

After the City's adoption of the plan amendments, the

Department of Community Affairs (DCA) gave notice of intent to

find the amendments "in compliance." Petitioner filed a

Petition for Formal Administrative Hearing on June 20, 2000.

DCA referred the matter to the Division of Administrative

Hearings (DOAH). In accordance with the Joint Response to

Initial Order, the case was set for hearing in Tallahassee on

October 9, 2000.

On October 6, 2000, the parties filed a Prehearing

Stipulation. By way of opening statement at final the

hearing, Petitioner further narrowed the issues by focusing

exclusively on certain reasons why two new policies in the

amendments to the ICE--Policy A8.19 and Policy A8.20--were not

"in compliance"; other contentions in the Petition for Formal

Administrative Hearing were abandoned. Petitioner then called

Charles Pattison as an expert witness in comprehensive

planning and had Petitioner's Exhibits 1, 2, and 3 admitted in

evidence. The City called Robert Pennock as an expert witness

in comprehensive planning, as well as the City's planner,

Kimberly Delaney; the City also had its Exhibits 2, 6, and 7

admitted in evidence. DCA had DCA Exhibit 1 admitted in

evidence and relied on the parties' stipulation to the

timeliness and propriety of DCA's procedures for issuance of

its notice of intent to find the plan amendments "in

compliance."

After presentation of evidence, Petitioner and the City

requested a transcript of the final hearing, and the parties

were given ten days from the filing of the transcript in which

to file proposed recommended orders ( PROs). The Transcript

was filed on November 2, 2000, but the City's Unopposed Motion

for Extension of Time to File [ PROs] was granted, and the time

for filing PROs was extended to December 8, 2000. The City

and DCA filed PROs on the due date; Petitioner filed its PRO

on December 11, 2000, along with a Motion for Extension of

Time to File PRO, which neither the City (which filed a

statement of no objection) nor DCA has opposed. As a result,

all the parties' PROs have been considered in reaching this

Recommended Order.

FINDINGS OF FACT

1. Ordinance No. 1702-99 adopted by the City of Stuart,

Florida, on April 10, 2000, amends the City's Comprehensive

Plan by adding Policies A8.19 and A8.20. The purpose of

Policies A8.19 and A8.20 was to comply with Section

163.3177(6)(h)1.a., Florida Statutes (2000). (All statutes

cited in this Recommended Order are the Florida Statutes

(2000).

2. The parenthetical preamble to Policies A8.19 and

A8.20 states:

Policies A8.19 and A8.20 are based on

extensive meetings with Martin County staff

during the preparation of this revision to

the ICE Element as well as negotiations

that occurred over the course of the past

year and a half in conjunction with

Stuart's annexation of parcels and related

plan amendments. It is proposed that these

policies and steps will help to resolve and

avoid intergovernmental disputes as well as

contribute to meeting the new requirements

of Chapter 163. Additional changes were

made in response to comments from Martin

County.

3. Policy A8.19 provides:

During the year 2000, the City will

coordinate with Martin County to establish

two Joint Planning Areas ( JPAs).

(1) One JPA will establish an area where

annexation is likely to occur during the

planning period. Within this first JPA,

joint planning shall occur on all relevant

annexation issues identified by the City

and county, including intergovernmental

coordination; land use compatibility;

natural resource protection; and provision

of services, infrastructure and

transportation facilities.

(2) The second JPA will be for general

planning purposes. Infrastructure

planning, recognition of service areas and

mitigation of cross-jurisdictional impacts

on infrastructure shall be addressed within

the second JPA.

(3) Within two months after the effective

date of this policy, the City will prepare

and propose draft policies and areas for

each of the JPAs. The City will request

the active participation and input of

County staff in this initial drafting

phase. Joint Planning Areas must be

incorporated into both the City and County

comprehensive plans or through formal

adoption of an official agreement between

the City of Stuart and Martin County.

Therefore, the City shall propose a special

purpose, joint meeting(s) of the City and

County LPAs to develop the specific

policies and establish the specific areas

for presentation to the respective

governing boards for ultimate adoption into

each comprehensive plan or by official

agreement between the City of Stuart and

Martin County after a public hearing.

4. Policy A8.20 provides:

During the year 2000, the City shall

initiate discussions with Martin County to

establish a joint procedure to facilitate

future annexations into the City. This

joint procedure will include:

a. Provision of early notice to the county

of the possibility of annexation.

b. Use of joint plans prepared for the

JPA's established under Policy A8.19 to the

extent they apply to the particular

annexation area.

c. Provision of county review of the

possible impacts of the potential

annexation and intergovernmental assessment

of mitigation options.

d. Consideration of mitigation options by

the City.

5. It is possible that the City and County could

establish the "joint procedure to facilitate future

annexations" under Policy A8.20 through formal adoption of an

official agreement between the City and Martin County, instead

of amendment to their comprehensive plans (similar to the

explicit procedure referred to in Policy A8.19.) In addition,

Policy A8.20 does not explicitly limit the City and County to

the items described in the policy for inclusion in the joint

procedure; additional items could be added to the joint

procedure.

6. Prior to adoption of Policies A8.19 and A8.20, the

City and County entered into interlocal agreements for joint

infrastructure service areas. It cannot be ascertained at

this time whether those joint infrastructure service areas

will be within one of the two JPAs to be established under

Policy A8.19.

7. Another of the policies adopted through Ordinance No.

1702-99, namely Policy A7.2, provides:

The City shall consider for annexation only

those parcels of land which may be lawfully

annexed pursuant to Chapter 171, Florida

Statutes.

8. Petitioner did not allege in its Petition for Formal

Administrative Hearing that the phrase "area where annexations

are likely to occur during the planning period" in Policy

A8.19(1) was vague. Petitioner mentioned the issue in the

Brief General Statement of [Its] Position in the parties'

Prehearing Stipulation, but the issue was omitted from that

document's joint statement of "the mixed issues of law and

fact which remain to be litigated."

CONCLUSIONS OF LAW

9. Section 163.3184(9), Florida Statutes, provides that,

in this proceeding, the subject comprehensive plan amendments

"shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

In this case, Petitioner bears the burden of proving, beyond

fair debate, that Policies A8.19 and A8.20 are not "in

compliance."

"Fairly Debatable" Standard

10. In Martin County v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997), the Court equated the "fairly debatable" standard

under Section 163.3184(9) with the "fairly debatable" standard

applicable to decisions of local governments acting in a

legislative capacity, stating:

The fairly debatable standard of review is

a highly deferential standard requiring

approval of a planning action if reasonable

persons could differ as to its propriety.

The Yusem court also quoted from City of Miami Beach v.

Lachman , 71 So. 2d 148, 152 (Fla. 1953):

An ordinance may be said to be fairly

debatable when for any reason it is open to

dispute or controversy on grounds that make

sense or point to a logical deduction that

in no way involves its constitutional

validity.

However, in deciding whether planning decisions are fairly

debatable, statutory and rule compliance criteria also must be

ascertained and applied.

"In Compliance" Definition

11. Under Section 163.3184(1)(b), "in compliance" means

"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."

Internal Consistency Argument

12. Although omitted from Petitioner's PRO, Petitioner

argued at final hearing that neither Policy A8.19 nor Policy

A8.20 is "in compliance" because both are internally

inconsistent with Policy A7.2. See Section 163.3177(2). To

the contrary, Policy A8.19 and Policy A8.20 clearly are not

inconsistent with Policy A7.2. Instead, this argument

actually just begs Petitioner's other arguments as to why

annexations permitted under Policy A8.19 and Policy A8.20

allegedly are unlawful and why the policies therefore are not

"in compliance."

Pertinent "Compliance" Requirements

13. Section 163.3177(6)(h)1. requires, in pertinent

part, that the ICE include:

An intergovernmental coordination element

showing relationships and stating

principles and guidelines to be used in the

accomplishment of coordination of the

adopted comprehensive plan with the plans

of school boards and other units of local

government providing services but not

having regulatory authority over the use of

land, with the comprehensive plans of

adjacent municipalities, the county,

adjacent counties, or the region, and with

the state comprehensive plan, as the case

may require and as such adopted plans or

plans in preparation may exist. This

element of the local comprehensive plan

shall demonstrate consideration of the

particular effects of the local plan, when

adopted, upon the development of adjacent

municipalities, the county, adjacent

counties, or the region, or upon the state

comprehensive plan, as the case may

require.

a. The intergovernmental coordination

element shall provide for procedures to

identify and implement joint planning

areas, especially for the purpose of

annexation, municipal incorporation, and

joint infrastructure service areas.

Section 163.3177(6)(h)4. requires of adoption plan amendments

implementing these requirements by December 31, 1999, but no

party has raised the failure to meet the deadline as being a

reason why the policies in question are not "in compliance."

14. Section 163.3177(10)(b) states in pertinent part:

"Intergovernmental coordination, as set forth in paragraph

(6)(h), shall be utilized to the extent required to carry out

the provisions of chapter 9J-5, Florida Administrative Code."

15. Florida Administrative Code Rule 9J-5.015 states in

pertinent part: "It is the purpose of the intergovernmental

coordination element to . . . determine and respond to the

needs for coordination processes and procedures with adjacent

local governments . . .." (All rules cited are Florida

Administrative Code rules.)

16. Rule 9J5 -5.015(3)(c)4. requires the

intergovernmental coordination element (ICE) of the

comprehensive plan to "contain one or more policies for each

objective which address programs, activities, or procedures

for: [t]he coordination of planning activities mandated by

the various elements of the comprehensive plan with other

local governments . . . [and] [r] esolving annexation issues

. . .." (Emphasis added.)

Policy A8.19 Arguments

17. Petitioner makes essentially four arguments why

Policy A8.19 is not "in compliance." Petitioner's first

argument is that the policy itself does not identify the Joint

Planning Areas ( JPAs), especially the first (annexation) JPA,

either by mapping or some other similarly definitive means.

Petitioner's second (and related) argument is that paragraph

(3) of the policy permits deferral of identification (as well

as implementation) of the JPAs to interlocal agreements

between the City and County, in lieu of incorporation in the

comprehensive plans of the City and County. Petitioner's

third argument is that, by requiring establishment of the

annexation JPA only in areas "where annexation is likely to

occur during the planning period," Policy A8.19 permits

annexations to occur outside that JPA. Finally, Petitioner

argues that the phrase, "where annexation is likely to occur,"

is too vague.

Petitioner's First Two Arguments

18. Petitioner's first two arguments are interwoven and

difficult to unravel and understand independent from one

another; the same can be said of the counter-arguments of DCA

and the City. For that reason, it is concluded that these

disputed issues are best considered together as a single

argument.

19. Petitioner initially seemed to argue that Section

163.3177(6)(h)1.a. required the JPAs to be identified in

Policy A8.19 itself. Ultimately, at the end of its PRO,

Petitioner conceded that, even if Policy A8.19 deferred

identification and implementation of the JPAs, the policy

still would be "in compliance" if not for the option in

paragraph (3) of the policy for subsequent identification and

implementation through interlocal agreement, in lieu of

incorporation in the comprehensive plans of the City and

County.

20. In support of its argument, Petitioner cited other

parts of Chapter 163 containing requirements for

identification of areas or places. See , e.g. , Section

163.3177(6)(a) and (d). Petitioner also cited the Final

Order, Dept. of Community Affairs, et al., v. Collier County,

et al. , 99 E.R.F.A.L.R. 259 (Admin. Comm'n, June 22, 199 9)(the

Collier County Final Order), adopting Recommended Order, DOAH

Case No. 98 -0324GM, entered March 19, 1999. In the Collier

County Final Order, the EAR (Evaluation and Appraisal Report)-

based comprehensive plan amendments in issue failed to map or

otherwise definitively identify "land use categories in which

public schools are an allowable use" notwithstanding the

requirement in Section 163.3177(6)(a) that the Future Land Use

Element "clearly identify" those land use categories.

Instead, identification of those land use categories was

deferred to interlocal agreement between the County and School

Board. As stated in Finding 17 of the Recommended Order in

that case:

In place of regulating school uses like

other land uses-- i.e. , in the Plan--the

County instead has elected to resolve

school-siting issues through another means-

- i.e. , an Interlocal Agreement, which is

mentioned in Sanitary Sewer Policy 1.2.6.

However, the use of the Interlocal

Agreement, rather than the Plan, attenuates

public participation, precludes plan

challenges by the public or DCA under

Chapters 163 and 9J-5, and fails to ensure

that the two parties will site schools

consistent with the minimum criteria of

Chapters 163 and 9J-5.

21. Petitioner also cites Section 163.3194(4)(b), which

states: "It is the intent of this act [ i.e. , Part II of

Chapter 163] that the comprehensive plan set general

guidelines and principles concerning its purposes and contents

and that this act shall be construed broadly to accomplish its

stated purposes and objectives." Petitioner argues that the

"purposes and objectives" of Part II of Chapter 163 cannot be

met if the JPAs are not identified and implemented either in

Policy A8.19 itself or through incorporation in the

comprehensive plans of the City and County.

22. Petitioner also points to the rule of statutory

interpretation that related statutes should be read in pari

materia and harmonized so that proper effect is given to all

related statutes. See Golf Channel, Inc. v. Martin Jenkins ,

752 So. 2d 561 , 564 (Fla. 2000); Dept. of Revenue v. Stafford ,

646 So. 2d 803 (Fla. 4th DCA 1994). Petitioner argues that

the best way to comply with those rules of statutory

construction would be to require the JPAs to be identified and

implemented either in Policy A8.19 itself or through

incorporation in the comprehensive plans of the City and

County.

23. DCA and the City contend that the language of

Section 163.3177(6)(h)1.a. is clear and unambiguous in only

requiring " procedures to identify and implement joint planning

areas." (Emphasis added.) In arguing that identification and

implementation of the JPAs need not be incorporated in either

Policy A8.19 itself or in a subsequent amendment to the

comprehensive plans of the City and County, they cite to other

basic rules of statutory interpretation. "[W]hen the language

of a statute is unambiguous and conveys a clear and ordinary

meaning, there is no need to resort to other rules of

statutory construction." Starr Tyme, Inc. v. Cohen , 659

So. 2d 1064, 1067 (Fla. 1995 ). In those instances, the

language of a statute should be given its plain and ordinary

meaning. See Smith v. Crawford , 645 So. 2d 513 (Fla. 1st DCA

1994). Statutory language is not assumed to be superfluous;

meaning should be given to all words and phrases contained in

a statute. See Terrinoni v. Westward Ho! , 418 So. 2d 1143

(Fla. 1st DCA 1982). Similarly, courts may not insert words

or phrases in a statute that to all appearances were not in

the mind of the legislature when the law was enacted. See

Rebich v. Burdine's and Liberty Mut. Ins. Co. , 417 So. 2d 284

(Fla. 1st DCA 1982).

24. DCA and the City also argue that Petitioner fails to

take into account Section 163.3171, which they assert

specifically authorizes the interlocal agreement option in

Policy A8.19(3).

25. Section 163.3171 provides in pertinent part:

(1) A municipality shall exercise

authority under this act [ i.e. , Part II of

Chapter 163, which is entitled the "Local

Government Comprehensive Planning and Land

Development Regulation Act"] for the total

area under its jurisdiction.

Unincorporated areas adjacent to

incorporated municipalities may be included

in the area of municipal jurisdiction for

the purposes of this act if the governing

bodies of the municipality and the county

in which the area is located agree on the

boundaries of such additional areas, on

procedures for joint action in the

preparation and adoption of the

comprehensive plan, on procedures for the

administration of land development

regulations or the land development code

applicable thereto, and on the manner of

representation on any joint body or

instrument that may be created under the

joint agreement. Such joint agreement

shall be formally stated and approved in

appropriate official action by the

governing bodies involved.

* * *

(3) Combinations of municipalities

within a county, or counties, or an

incorporated municipality or municipalities

and a county or counties, or an

incorporated municipality or municipalities

and portions of a county or counties may

jointly exercise the powers granted under

the provisions of this act upon formal

adoption of an official agreement by the

governing bodies involved pursuant to law.

No such official agreement shall be adopted

by the governing bodies involved until a

public hearing on the subject with public

notice has been held by each governing body

involved. The general administration of

any joint agreement shall be governed by

the provisions of s.163.01 except that when

there is conflict with this act the

provisions of this act shall govern.

26. Harmonizing all of these related statutes, it is

concluded that Section 163.3171(1) does authorize the use of

interlocal agreements to identify and implement joint planning

areas, but only to the extent of designating the portions of

the unincorporated county in which joint city/county planning

will take place and establishing "procedures for joint action

in the preparation and adoption of the comprehensive plan, on

procedures for the administration of land development

regulations or the land development code applicable thereto,

and on the manner of representation on any joint body or

instrument that may be created under the joint agreement."

Similarly, Section 163.3171(3) only authorizes the City and

County to "jointly exercise the powers granted under the

provisions of this act [ i.e. , Part II of Chapter 163] upon

[ i.e. , after ] formal adoption of an official agreement by the

governing bodies involved pursuant to law." (Emphasis and

bracketed explanation added.) This provision was not intended

to authorize subsequent planning within the jurisdiction of a

joint planning area to be conducted through interlocal

agreement. To the contrary, the last sentence of Section

163.3171(3) would require such joint planning to meet the

ordinary requirements of "this act," i.e. , Part II of Chapter

163. See Pinellas County v. City of Gulfport , 458 So. 2d 436,

438 (Fla. 2d DCA 1984). Cf. also Rules 9J-5.005(7)( i), 9J-

11.004(2)(a)4.-5., and 9J-11.006(1)(a)9. and (b).

27. Applying these statutory interpretations to this

case, Policy A8.19(3) does not appear to limit the JPA

interlocal agreements to mere identification and

implementation of the JPAs, with subsequent joint planning

policies to be adopted in accordance with the ordinary

requirements of Part II of Chapter 163. To the contrary, the

policy appears to authorize adoption of joint planning

policies through interlocal agreement(s), in lieu of

incorporation in the comprehensive plans of the City and

County. To that extent, Policy A8.19(3) is not "in

compliance."

"Where Annexations Are Likely to Occur" Arguments

28. Petitioner's next argument is that Policy A8.19 is

not "in compliance" because, by requiring establishment of the

first (annexation) JPA only in the "area where annexation is

likely to occur during the planning period," Policy A8.19

permits annexations to occur outside the JPA. Petitioner also

argues that the language used to describe the annexation JPA

is too vague to be "in compliance" with Sections

163.3177(6)(h)1.a. and 163.3171.

29. As for the "vagueness" issue, Petitioner never

raised the issue in its Petition for Formal Administrative

Hearing. Although mentioned in the Prehearing Stipulation,

the issue was omitted from that document's joint statement of

"the mixed issues of law and fact which remain to be

litigated." For those reasons, the issue was waived. See

Final Order, Heartland Environmental Council v. Dept. of

Community Affairs , 96 E.R.F.A.L.R. 185 (Dept. Comm. Affairs,

Nov. 25, 1996), adopting in part and modifying Recommended

Order, DOAH Case No. 94-2095GM, entered October 15, 1996.

30. If the "vagueness" issue were considered, it would

be concluded that Petitioner did not prove beyond fair debate

that Policy A8.19 is not "in compliance" because it is too

vague. Section 163.3177(6)(h)1. requires the City to adopt an

"intergovernmental coordination element showing relationships

and stating principles and guidelines to be used in the

accomplishment of coordination of the adopted comprehensive

plan" with the plan of Martin County. It is concluded that

the phrase "area where annexations are likely to occur during

the planning period" is clear enough to guide establishment of

the annexation JPA.

31. Petitioner's "vagueness" argument is tied to and

dependent on what appears to be Petitioner's main argument

regarding the "likely to occur" language--that Policy A8.19 is

not "in compliance" because it does not require the annexation

JPA to include all areas where annexations could possibly

occur, so that annexations outside the annexation JPA would be

possible.

32. Annexation is controlled by Chapter 171 of the

Florida Statutes. Chapter 171 authorizes municipalities to

annex land under the terms of the statute. See SCA Services

of Florida, Inc. v. City of Tallahassee , 418 So. 2d 1148, 1150

(Fla. 1st DCA 1982), rev. denied , 427 So. 2d 737 (Fla. 1983).

In effect, Petitioner's argument is that Section

163.3177(6)(h)1.a. supersedes and controls to the extent of

conflict with Chapter 171 and that Section 163.3177(6)(h)1.a.

requires joint planning before all annexations.

33. If Petitioner's argument were accepted, the City

would be required to predict with absolute certainty where all

annexations, including voluntary annexations, will occur.

Such predictive ability would be difficult, if not practically

impossible. Without the perfect ability to make such

predictions, the only way to be assured that all annexations

will occur within the annexation JPA would be for the JPA to

cover the entire unincorporated county. That could require

unnecessary and wasteful planning. It is concluded that it is

unreasonable to interpret Section 163.3177(6)(h)1.a. so as to

require possibly illogical and wasteful planning.

34. It also is noted that Section 163.3177(6)(h)1.a.

addresses municipal incorporation and joint infrastructure

service areas, as well as annexation. Yet, as Petitioner

agrees, municipal incorporation clearly is authorized outside

a JPA. Similarly, the City and County already have entered

into interlocal agreements for joint infrastructure service

areas. Although it cannot be ascertained at this time whether

those joint infrastructure service areas will be within either

of the two JPAs to be established under Policy A8.19,

Petitioner does not contend that they are illegal.

Notwithstanding Petitioner's arguments to the contrary, it is

logical to conclude that annexations under Chapter 171 also

are not illegal because they are outside the annexation JPA in

whole or in part.

35. Petitioner also cites Section 163.3211, which is

entitled "Conflict with other statutes," and which states:

Where this act may be in conflict with any

other provision or provisions of law

relating to local governments having

authority to regulate the development of

land , the provisions of this act shall

govern unless the provisions of this act

are met or exceeded by such other provision

or provisions of law relating to local

government, including land development

regulations adopted pursuant to chapter 125

or chapter 166. Nothing in this act is

intended to withdraw or diminish any legal

powers or responsibilities of state

agencies or change any requirement of

existing law that local regulations comply

with state standards or rules.

(Emphasis added.) But, as emphasized language suggests, this

statute does not apply to Chapter 171, which deals with

annexations, not regulation of land development.

36. Finally, it is noted that Policy A8.19 only provides

for the establishment of the annexation JPA. It does not

annex land or expressly authorize annexation outside the

annexation JPA. If land outside the annexation JPA is annexed

in the future, a petition for certiorari review could be filed

under Section 171.081 to assert a claim that such an

annexation "does not meet the requirements established for

annexation."

37. For these reasons, it is concluded that the language

in Policy A8.19 providing for the establishment of the

annexation JPA in the "area where annexation is likely to

occur during the planning period" is "in compliance."

Policy A8.20

38. The first part of Petitioner's argument that Policy

A8.20 is not "in compliance" is based on the policy's

requirement that the joint procedure to be adopted by the City

and County under the policy use the "joint plans prepared for

the JPA's established under Policy A8.19 to the extent they

apply to the particular annexation area." This part of

Petitioner's argument on Policy A8.20 is primarily based on

Policy A8.19's failure to require the annexation JPA to

include all areas where annexations could possibly occur.

This argument already has been rejected in Conclusions of Law

37, supra . However, to the extent that Policy A8.20 relies on

Policy A8.19, Policy A8.20 is not "in compliance" to the

extent that Policy A8.19 is not. See Conclusions of Law 27,

supra .

39. Petitioner also argues that, while Policy A8.20

requires establishment of "a joint procedure to facilitate

annexations," to include four listed items, it does not

prohibit the joint procedure from including additional items

and does not expressly require incorporation of the joint

procedure in a comprehensive plan amendment.

40. It must be kept in mind that, unlike Policy A8.19,

Policy A8.20 was not adopted under Section 163.3171 to meet

the requirements of Section 163.3177(6)(h)1.a.-- i.e. , it does

not provide for establishment of a joint planning area, and

its operation is not limited to the jurisdiction of the JPAs

addressed in Policy A8.19 (in particular, the annexation JPA.)

As a result, Sections 163.3171 and 163. 3177(6)(h)1.a. do not

operate to require incorporation of the joint procedure to be

adopted in response to Policy A8.20 in the comprehensive plans

of the City and County.

41. In addition, Section 163.3177(6)(h)1. only requires

the ICE to "[show] relationships and [state] principles and

guidelines to be used in the accomplishment of coordination of

the adopted comprehensive plan" with the plan of Martin

County. Rule 9J5 -5.015(3)(c)4. requires the intergovernmental

coordination element (ICE) of the comprehensive plan to

"contain one or more policies for each objective which address

programs, activities, or procedures for: [t]he coordination

of planning activities mandated by the various elements of the

comprehensive plan with other local governments . . . [and]

[r] esolving annexation issues . . .." (Emphasis added.) ICE

policies are adequate if they meet these statutory and rule

criteria, so as to make it possible to determine whether

subsequent coordination efforts are consistent with the

policies. Part II of Chapter 163 does not require all

intergovernmental coordination to be accomplished through

comprehensive plan amendments; nor does it prohibit additional

coordination beyond what is required by ICE policies. For

these reasons, it is concluded that Policy A8.20 is "in

compliance," except to the extent of its reliance on Policy

A8.19.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, and it is

RECOMMENDED that, after further proceedings in accordance

with Section 163.3184(9)(b), the Department of Community

Affairs:

1. Determine Policy A8.19 not "in compliance";

2. Determine Policy A8.20 not "in compliance" to the

extent that it relies on Policy A8.19; and

3. Submit this Recommended Order to the Administration

Commission to take final action and, in accordance with

Section 163.3184(11)(a), specify as remedial action that the

City of Stuart amend Policy A8.19 to require joint planning

policies for the JPAs to be adopted by incorporation in the

comprehensive plans of the City and Martin County.

DONE AND ENTERED this 11th day of January, 2001, in

Tallahassee, Leon County, Florida.

_____________________________

J. LAWRENCE JOHNSTON

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 Hearing

this 11th day of January, 2001.

COPIES FURNISHED:

Terrell K. Arline, Esquire

Legal Director

1000 Friends of Florida

926 East Park Avenue

Post Office Box 5948

Tallahassee, Florida 32301

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Robert C. Apgar, Esquire

Yeline Goin, Esquire

320 Johnston Street

Tallahassee, Florida 32303

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325A

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 should be filed with the agency that will

issue the final order in this case.