10-000913GM Martin County Conservation Alliance, Inc., A Florida Not-For-Profit Corp.; Donna Melzer And Eliza Ackerly, Individuals And Grove Holdings, Llc; Groves 12, Llc; And Groves 14 Llc, vs. |martin County And Department Of Community Affairs Status: Closed Recommended Order on Friday, September 3, 2010.

Summary: It is recommended that all but two of the plan amendments adopted by Martin County be determined "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN COUNTY CONSERVATION )

ALLIANCE, INC., A FLORIDA NOT - )

FOR - PROFIT CORP.; DONNA MELZER )

AND ELIZA ACKERLY, INDIVIDUALS )

AND GROVE HOLDINGS, LLC; GROVES )

12, LLC; AND GROVES 14 LLC, )

)

Petitioners , )

)

v s. ) Case No. 10 - 0913GM

)

MARTIN COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS , )

)

Respondents . )

)

GROVE HOLDINGS, LLC; GROVE 12, )

LLC; AND GROVES 14, LLC, )

)

Petitioners, )

)

vs. ) Case No. 10 - 1142GM

)

MARTIN COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents. )

___ ____________________________ )

MARTIN COUNTY CONSERVATION )

ALLIANCE, INC., A FLORIDA NOT - )

FOR - PROFIT CORPORATION AND )

DONNA MELZER, )

)

Petitioners, )

)

vs. ) Case No. 10 - 1161GM

)

MARTIN COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents. )

_______________________________ )

M ARTIN COUNTY CONSERVATION )

ALLIANCE, INC., A FLORIDA NOT - )

FOR - PROFIT CORPORATION AND )

DONNA MELZER, )

)

Petitioners, )

)

vs. ) Case No. 10 - 1162GM

)

MARTIN COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents. )

_______________________________ )

MARTIN COUNTY CONSERVATION )

ALLIA NCE, INC., A FLORIDA NOT - )

FOR - PROFIT CORPORATION AND )

DONNA MELZER, )

)

Petitioners, )

)

vs. ) Case No. 10 - 1163GM

)

MARTIN COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents. )

_______________________________ )

MARTIN COUNTY CONSERVATION )

ALLIANCE, INC., A FLORIDA NOT - )

FOR - PR OFIT CORP O RATION AND )

DONNA MELZER, )

)

Petitioners, )

)

vs. ) Case No. 10 - 1164GM

)

MARTIN COUNTY AND DEPARTMENT OF )

COMMUNITY AFFAIRS, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

The final hearing in these con solidated cases was held on

June 7 through 10, 2010, in Stuart, Florida, before Bram D. E.

Canter, Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners Martin County Conservation Alliance, Inc.,

Donna M elzer, and Elisa Ackerly:

Donna Sutter Melzer, Esquire

3471 Southwest Centre Court

Palm City, Florida 34990 - 2312

For Petitioners Groves Holdings, LLC, Groves 12, LLC, and

Groves 14, LLC:

Andrew J. Baumann, Esquire

Tara J. Duhy, Esquire

Lewis, Longman & Walker, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401 - 4327

For Respondent Martin County:

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3322

Linda Loomis She lley, Esquire

Fowler White Boggs, P.A.

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32301 - 1547

For Respondent Department of Community Affairs:

L. Mary Thomas, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, F lorida 32399 - 2100

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether the

amendments to the Martin County Comprehensive Growth Management

Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by

Ordinance No. 847), 846, 847 , 851, 853, and 854 are Ðin

complianceÑ as that term is defined in S ection 163.3184(1)(b),

Florida Statutes. 1/

PRELIMINARY STATEMENT

On December 16, 2009, Martin County amended all the

elements of its CGMP, through the simultaneous adoption of

Ordinance N os. 843 through 856 (ÐPlan AmendmentsÑ). On

February 10, 2010, following its review of the Plan Amendments,

the Department of Community Affairs (ÐDepartmentÑ) issued a

Notice of Intent, determining that , with the exception of one

amendment to the Future L and Use Element ("FLUE") adopted by

Ordinance No. 845 , all the Plan A mendments were in compliance.

The Department filed a petition with DOAH requesting an

administrative hearing regarding the FLUE amendment adopted by

Ordinance No. 845, which was assigned DOAH Case No. 10 - 0913GM.

Martin County Conservation Alliance, Inc. (MCCA), Donna Melzer,

and Elisa Ackerly jointly petitioned to intervene in support of

the DepartmentÓs determination. Groves Holdings, LLC ;

Groves 12, LLC ; and Groves 14, LLC (referred to collectively as

Ðthe GrovesÑ) also petitioned to intervene in support of the

DepartmentÓs determination. These petitions to intervene were

granted.

The Groves also petitioned for an administrative hearing to

challenge the DepartmentÓs Ðin complianceÑ det ermination

regarding the amendments adopted by Ordinance Nos. 846, 847,

851, and 853. The GrovesÓ p etition was assigned DOAH Case

No. 10 - 1142GM.

MCCA and Donna Melzer, but not Eliza Ackerly, filed four

separate petitions to challenge, respectively, the amendments

adopted by Ordinance Nos. 843, 847, 851, and 854. These

petitions were referred to DOAH by the Department and assigned

DOAH Case Nos. 10 - 1161GM, 10 - 1162GM, 10 - 1163GM, and 10 - 1164GM.

In summary, seven of the 14 County ordinances were

challenged , creating six DOAH cases that were consolidated for

hearing.

On March 16, 2010, Martin County adopted Ordinance No. 8 57,

which repealed the amendment in Ordinance No. 845 to which the

Department had objected. On April 12, 2010, the Department

published a n Amended Notice of Intent to find the amendments

adopted by Ordinance No. 845, as revised by Ordinance No. 857,

in compliance. The Department then voluntarily dismissed its

petition in DOAH Case No. 10 - 0913GM and moved for realignment of

the parties in t hat case.

The Groves requested leave to amend its petition in DOAH

Case No. 10 - 0913GM to add a challenge on procedural grounds to

the CountyÓs unilateral repeal of a portion of Ordinance No. 845

through the adoption of Ordinance No. 847. MCCA and Melzer a lso

objected to the process by which Ordinance 845 was changed . The

Department moved to strike the challenges and the Department's

motion was granted.

Martin County demanded expeditious resolution of the

proceedings, pursuant to Section 163.3189(3)(a), Fl orida

Statutes. The final hearing was held within 30 days after

receipt of the demand, as required by this statute.

At the final hearing, Joint Exhibits 2 through 7 were

admitted into evidence. Groves presented the testimony of

Lawrence G. Mango, James S herman, Samantha Horowitz, Nicki Van

Vonno, Morris Crady, and Richard D. Warner. GrovesÓ Exhibits 2

through 19, 24, 27, 28, 31 through 33, 35, and 36 were admitted

into evidence.

MCCA, Melzer, and Ackerly presented the testimony of Clyde

Dulin, Mike McDan iel, Margaret Ketter, John Polley, Don

Donaldson, Charles Pattison, Robert Washam, Lloyd Brumfield, Tom

Tomlinson, Henry Iler, Samantha Horowitz, Nicki Van Vonno,

Howard Heims, Kevin Freeman, Taryn Kryzda, and Elisa Ackerly.

MCCA Exhibits 3, 10, 18, 33, 4 3 through 46, 62, and 63 were

admitted into evidence.

Martin County presented the testimony of Nicki Van Vonno,

Clyde Dulin, Samantha Horowitz, Don Donaldson, John Polley, and

Mike McDaniel. Martin CountyÓs Exhibits 1 through 4, 10, 12

through 14, 16, and 18 through 20 were admitted into evidence.

The Department presented the testimony of Robert Dennis.

The Department did not offer any exhibits into evidence.

The seven - volume Transcript of the final hearing was filed

with DOAH. The partiesÓ request for a n expansion of the page

limit for their proposed recommended orders was granted. All

parties timely filed proposed recommended orders that were

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

The Parties

1. The Departm ent is the state land planning agency and is

charged with the duty to review comprehensive plan amendments

and to determine whether they are Ðin compliance,Ñ as that term

is defined in the Section 163.3184(1), Florida Statutes.

2. Martin County is a polit ical subdivision of the State

of Florida and has adopted a comprehensive plan that it amends

from time to time.

3. Groves Holding s , LLC, is a Florida limited liability

company. Groves Holdings, LLC operates a real estate management

and investment busines s in the County that manages the leasing,

entitlement, and disposition of lands owned by its related

subsidiaries Groves 12, LLC , and Groves 14, LLC.

4. Groves 12, LLC, and Groves 14, LLC, are Florida limited

liability companies wholly owned by Groves Hol ding s , LLC.

Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14,

LLC, owns 1,700 acres of land being developed as a residential

community and equestrian club known as Hobe Sound Polo Club.

5. The land owned by Groves 12, LLC, is located in the

r ural area of the County, approximately one mile from the

closest boundary of an urban service district. The land being

developed by Groves 14, LLC, is also located in the rural area.

Groves 14, LLC, also owns 450 acres not being developed that are

locate d partially within the rural area and partially within an

urban service district

6. The Groves submitted written comments regarding the

Plan Amendments to the County during the period of time

beginning with the transmittal hearing and ending with the

adop tion of the Plan Amendments.

7. Donna Melzer and Eliza Ackerly each own s real property

in and reside s in Martin County. Melzer and Ackerly each

submitted comments regarding the Plan Amendments to the County

during the period of time beginning with the tr ansmittal hearing

and ending with the adoption of the Plan Amendments.

8. MCCA is a not - for - profit Florida corporation

incorporated in 1997 for the purposes of conserving the natural

resources of Martin County, and maintaining and improving the

quality of life for residents of the County. Its members

include individuals and corporate and non - corporate entities. A

substantial number of its members reside, own property, or

operate a business in Martin County.

9. MCCA engages primarily in lobbying, public advocacy,

and litigation in Martin County regarding the CGMP. MCCA

conducts membership meetings, sends a newsletter to members and

others, and sometimes hosts meetings open to the general public.

MCCA is also involved in environmental preservation activi ties

in Martin County , including educational meetings, field trips,

and lobbying for public purchase of lands for conservation.

10. No evidence was presented to show that MCCA owns

property in the County, maintains an office in the County, or

holds a busi ness or occupational license.

11. MCCA submitted comments to the County regarding the

Plan Amendments, on behalf of its members, during the period of

time beginning with the transmittal hearing and ending with the

adoption of the Plan Amendments.

Hereafte r, MCCA, Donna Melzer, and Eliza Ackerly will be

referred to collectively as MCCA.

The Plan Amendments

12. Section 163.3191(1), Florida Statutes, requires each

local government to conduct an evaluation and appraisal of its

comprehensive plan every seven years and to prepare an

Evaluation and Appraisal Report (ÐEARÑ). Martin County

initiated its second evaluation and appraisal process in 2007,

culminating in the adoption of an EAR in July 2008.

13. Section 163.3191(10) , Florida Statutes, requires a

local government to adopt comprehensive plan amendments based on

the recommendations in the EAR in a single amendment cycle

within 18 months after adopting the EAR. The CountyÓs proposed

EAR - based amendments were sent to the Department in September

2009. The Department issued its Objections, Recommendations,

and Comments (ÐORCÑ) Report the next month.

14. After considering and responding to the ORC Report,

the County adopted Ordinance Nos. 842 through 856 on

December 16, 2009, amending all the elements of the CGMP. The

Department reviewed the Plan Amendments and determined that a

new ÐEssential Services NodesÑ policy of the FLUE adopted by

Ordinance No. 845 was not in compliance. The Department

determined that all of the other amendments adopted by Martin

Co unty were in compliance.

15. The County adopted Ordinance No. 857, which rescinded

the Essential Services Nodes policy to which the Department had

objected. The decision to rescind the policy was made

unilaterally by the County. The rescission was not p ursuant to

a compliance agreement with the Department. Based on the

CountyÓs rescission of the Essential Services Nodes policy, the

Department determined that Ordinance No. 845, as amended by

Ordinance No. 857, was in compliance.

16. All of the Plan Amen dments are text amendments. The

Future Land Use Map (ÐFLUMÑ) is not changed.

Urban Service Districts

17. The CGMP establishes urban service districts (USDs) in

the County. There is an Eastern USD and an Indiantown USD.

These USDs are subdivided into a primary USD and a secondary

USD.

18. About 87 percent of the CountyÓs population resides

east of the Florida Turnpike in the Eastern USDs. The

Indiantown USDs, which are west of the Florida Turnpike, are

separated from the Eastern USDs by more than 20 mi les of mostly

agricultural lands.

19. The primary purpose of the USDs is to prevent urban

sprawl by directing growth to those areas where urban public

facilities and services are available or are programmed to be

available at appropriate levels of service . The provision of

urban public facilities and services is generally limited to

USDs. The term Ðpublic urban facilities and servicesÑ is

defined in the CGMP as Ðregional water supply and wastewater

treatment/disposal systems, solid waste collection servi ces,

acceptable response times for sheriff and emergency services,

reasonably accessible community park and related recreational

facilities, schools and the transportation network.Ñ

20. Under FLUE Policy 4.7A.2, urban development, including

commercial, in dustrial, mixed - use , and urban residential land

uses may only be located within the Primary USD s . FLUE Policy

4.7B.1 permits low density residential use (half - acre lots or

greater) in the Secondary USD. No urban or suburban uses and no

utility services s uch as water and sewer may extend outside the

USD boundaries.

21. Most of the lands outside the Primary and Secondary

USDs are designated Agricultur al , but there are also lands

designated Public Conservation and Public Utilities.

MCCAÓs Issues

Section 1.1 0

22. Chapter 1 of the CGMP is entitled ÐPreambleÑ and

addresses general topics such as the legal status of the CGMP,

the continuing evaluation of the CGMP, and amending the CGMP.

The Preamble contains no goals, objectives, or policies. MCCA

objects to a sentence in Section 1.10 of the Preamble, adopted

by Ordinance No. 843, which states, ÐThis Plan shall be adopted

by ordinance and shall supersede the 1990 Comprehensive Plan and

all related amendments.Ñ MCCA contends that this sentence will

create prob lems and confusion if some of the Plan Amendments are

determined to be in compliance, but other amendments are

determined to be not in compliance.

23. There is no confusion. The reference to ÐThis PlanÑ

in Section 1.10 is reasonably interpreted to refer to the entire

CGMP, as amended by the latest EAR - based amendments that are

either already in effect or will become effective following the

conclusion of these consolidated cases. 2/

Chapter 2 Definitions

24. MCCA objects to several definitions added in Ch apter 2

of the CGMP, but the evidence presented do es not show an

internal consistency or other "in compliance" issue.

FLUE Goal 4.7

25. MCCA objects to the changes in FLUE Goal 4.4G, which

would be re - designated Goal 4.7. Existing Goal 4.4G states:

4.4G Goal (encourage urban development in

urban service areas) Martin County shall

regulate urban sprawl tendencies by

directing growth in a timely and efficient

manner to those areas where urban public

facilities and services are available, or

are programmed to be available, at the

levels of service adopted in this Growth

Management Plan. (italics in original)

New Goal 4.7 states:

Goal 4.7. To regulate urban sprawl by

directing growth in a timely and efficient

manner to areas with urban public facilities

and services, where they are programmed to

be available, at the levels of service

adopted in this Plan. (italics in original)

26. MCCA contends that the removal of the word ÐshallÑ in

the new goal Ðremoves the mandatory restriction.Ñ The County

did not intend to make a substantive change to Goal 4.4G. In

this particular context, the removal of the word ÐshallÑ does

not require a different interpretation or application of the

goal. It is not a substantive change.

FLUE Policy 4.12A.2

27. MCCAÓs major o bjection to Ordinance No. 845 is with

new FLUE Policy 4.12A.2. Most of the objections raised by MCCA

to other changes in the CGMP are directly related to MCCA's

objection to Policy 4.12A.2. MCCA contends that this new

policy, which allows Ðsmall - scale se rvice establishmentsÑ outside

the USDs, fails to include reasonable controls on commercial

development and will adversely affect agricultural uses and the

quality of life of rural residents. 3/ Policy 4.12A.2 states:

Restrictions outside urban service

dist ricts. Outside urban service districts,

development options shall be restricted to

low - intensity uses, including Agricultural

lands, not exceeding one unit per 20 gross

acres; Agricultural Ranchette lands not

exceeding one unit per five gross acres; and

s mall - scale service establishments necessary

to support rural and agricultural uses.

(italics in original)

28. Martin County contends that this policy is not a

substantive change because nearly the same wording already

exists as Section 4.6.D.4 in a part of the FLUE entitled

ÐImplementation Strategies,Ñ and the section was merely re -

located and re - designated as Policy 4.12A.2.

29. Section 4.6.D.4 provides:

Development outside the urban services

district shall be restricted to low

intensive development in order to promote

cost - effective practices in the delivery of

public services. Outside Urban Service

Districts development options shall be

restricted to low intensity uses including

agriculture and agricultural ranchettes, not

exceeding one unit per 5 gr oss acres, and

small - scale service establishments necessary

to support rural and agricultural uses as

provided by section 6.4.A.5.e., Housing

Service Zones in the Housing Element.

(italics in original)

The reference in this policy to Housing Service Zone s is an

error. Sometime in the past, the County deleted provisions in

the CGMP regarding Housing Service Zones, but overlooked this

particular reference.

30. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the

significant changes appear to be that Sec tion 4.6.D.4 is

transformed from a ÐstrategyÑ to a Ðpolicy,Ñ and the new policy

no longer ties small - scale service establishments to Housing

Service Zones.

31. However, the determination of whether a substantive

change was made in the replacement of Secti on 4.6.D.4 with new

Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e,

which states:

Martin County shall provide reasonable and

equitable options for development outside of

Primary Urban Service Districts, including

agriculture and small - scale service

establishments necessary to support rural

and agricultural uses.

32. Policy 4.4.G.1.e is already designated as a policy and

it does not tie small - scale service establishments to Housing

Service Zones. Therefore, although Section 4.6.D.4 differs from

new Policy 4.12A.2, there is no substantive difference between

new Policy 4.12A.2 and existing Policy 4.4.G.1.e.

33. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e

differ substantively because the former does not have the

Ðagricultural land u se designation limits on uses allowedÑ that

are in Policy 4.4.G.1.e. However, as shown above, both policies

allow for small - scale service establishments that support rural

uses as well as agricultural uses .

34. In support of its arguments about small - sca le service

establishments, MCCA also points to existing FLUE Policy

4.4.G.1.b (re - designated Policy 4.7A.2) and Ðimplementation

strategyÑ 4.6.D.3 ( to be deleted) which require commercial uses

to be located in the Primary USDs. The policy and implementation

strategy that restrict commercial uses to the Primary USDs co -

exist in the CGMP with Policy 4.4.G.1.e, which allows small -

scale service establishments outside the Primary USDs.

Therefore, in whatever manner the County currently reconciles

these policies and strategies, that reconciliation pre - dates the

EAR - based amendments. The FLUE amendments adopted by Ordinance

No. 845 do not alter the situation.

35. MCCA refers to the County planning staff's report

associated with another proposed plan amendment kno wn as "Becker

B - 4" in support of MCCA's argument that the amendments at issue

in the present case have substantively changed the FLUE with

regard to small - scale service establishments. However, none of

MCCA's allegations regarding the relevance of the Bec ker B - 4

staff report are borne out. If the Becker B - 4 amendment is

adopted by the County, it will be subject to its own "in

compliance" review.

36. In summary, when all relevant provisions of the CGMP

are taken into account, the changes made by Ordinance No. 845

that are related to small - scale service establishments are not

substantive changes to the CGMP .

37. MCCAÓs claims of internal inconsistency that are based

on MCCAÓs objections to new Policy 4.12A.2 must also fail as

unsupported by evidence of a s ubstantive change.

38. MCCAÓs claim that the County did not demonstrate a

need for more commercial uses outside the USDs (based on the

allowance for small - scale service establishments) must also fail

as unsupported by evidence of a substantive change.

39. MCCAÓs claim that the allowance for small - scale

service establishments constitutes a failure of the County to

discourage urban sprawl must also fail as unsupported by

evidence of a substantive change.

FLUE Policy 4.5F.4

40. MCCA objects to the changes t o Policy 4.5F.4, which

allows planned unit developments (PUDs) designed to preserve

open space, environmentally sensitive lands, and agricultural

land uses. These PUDs can be located in areas currently

designated Agricultur al and can include residential l ots greater

than two acres in size if certain criteria are met. MCCA

contends that this policy is inconsistent with Policy 4.13A.1,

which restricts residential densities in agricultural areas to

20 - acre residential lots.

41. The allowance in Policy 4.5F. 4 for PUDs with

residential lots smaller than 20 acres already exists.

Therefore, in whatever manner the County currently reconciles

Policies 4.5F.4 and 4.13A.1, that reconciliation pre - dates the

EAR - based amendments. The FLUE amendments adopted by Ordina nce

No. 845 do not alter the situation.

42. Furthermore, a PUD created under Objective 4.5F

requires a plan amendment. It appears that one of the purposes

of this requirement is to re - designate any agricultural lands to

a residential future land use desi gnation. 4/

FLUE Objective 4.7A

43. MCCA objects to the removal of the word ÐshallÑ from

existing FLUE Objective 4.4.G.1 (which would be re - designated as

Objective 4.7A). MCCA argues that the existing objective

prohibits commercial uses outside the Prima ry USDs and that the

removal of the word ÐshallÑ will allow commercial uses outside

the USDs. However, the objective does not prohibit commercial

uses outside the Primary USDs. The objective states that the

County Ðshall concentrate higher densities and intensities of

developmentÑ in the Primary USDs. To concentrate a land use in

one location does not mean to prohibit it elsewhere. It is

Policy 4.7A.2 that requires new commercial uses to be located in

the Primary USDs.

44. In this particular context, t he removal of the word

ÐshallÑ does not require a different interpretation or

application of Objective 4.7A. It is not a substantive change.

FLUE Policy 4.9H.2

45. MCCA objects to new Policy 4.9H.2, regarding

residential PUDs , because the policy indicat es that commercial

uses can be included in a residential PUD , even if the PUD is

located outside the Primary USDs. Policy 4.7A.2 requires all

new commercial development to be located in the Primary USDs.

Objective 4.5F and its associated policies allow f or residential

PUDs in agricultural areas outside the USDs, but do not indicate

that the PUDs in agricultural areas can include commercial uses .

Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective

4.5F and its associated policies

FLUE Policy 4.1 3A.7.(1)(d)

46. MCCA objects to new Policy 4.13A.7.(1)(d), which

allows one Ðaccessory dwelling unitÑ on a residential lot.

Accessory units cannot be sold separately from the primary

dwelling unit and are not counted as separate units for purposes

of den sity calculations.

47. MCCA's argument regarding accessory dwelling units

assumes that the new policy allows accessory units in the rural

areas of the County, outside the Primary USDs. However, Policy

4.13A.7.(1)(d) appears under the heading "General pol icies for

all urban Residential development." The term "urban" is not

defined in the CGMP, but there are several FLUE policies that

direct urban residential densities to the Primary USDs, such as

Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densitie s

greater than two units per acre to the Primary USDs, which

indicates that densities greater than two units per acre are

urban densities.

48. In order to maintain internal consistency, accessory

units would have to be confined to areas of the FLUM design ated

for urban residential density. See FLUE Objective 4.13A.7.

49. The County's proposal to not count accessory uses for

density purposes was shown to be a professionally acceptable

planning practice. Accessory units are similar to residential

addition s, converted garages, and other changes that can add

bedrooms and residents on a residential lot, but which

traditionally have been disregarded when calculating density.

FLUE Policy 4.13A.8.(5)

50. MCCA contends that changes made to Policy 4.13A.8.(5),

r egarding Expressway Oriented Transient Commercial Service

Centers ("Expressway Centers"), combined with the proposed

deletion of Section 4.6.D.3 of the "Implementation Strategies,"

allows for more commercial development without data and analysis

to support the need for additional commercial development.

51. Policy 4.13A.8.(5) creates Expressway Centers at three

large Interstate 95 interchange locations in the County as a

special land use designation to accommodate the unique needs of

people traveling thro ugh the County. Section 4.6.D.3 (which

ordinance No. 845 would delete) allows a waiver for Expressway

Centers from the general requirements applicable to the USDs if

an applicant for a waiver meets certain criteria. MCCA contends

that the waiver process weighs "the traveling publicÓs needs

against the value of the urban boundary." That is not an

accurate description of the waiver process, because none of the

criteria mention s the urban boundary.

52. MCCA contends that the waiver process has been

replac ed with a "market need test" in Policy 4.13A.8.(5) without

supporting data and analysis and that the change encourages

urban sprawl. Policy 4.13A.8.(5) requires a market feasibility

analysis to show that "the uses proposed are warranted by the

traveling p ublic they are intended to serve." MCCA presented no

evidence on the County's past applications of Section 4.6.D.3

and Policy 4.13A.8.(5). MCCA failed to show how the

demonstration required for a waiver under Section 4.6.D.3 is

substantively different an d more protective than the

demonstration required to establish an Expressway Center under

Policy 4.13A.8.(5). MCCA failed to show how the creation of

Expressway Centers or the specific amendments to Section 4.6.D.3

and Policy 4.13A.8.(5) will lead to more commercial uses outside

the Primary USDs, so as to encourage urban sprawl.

State Comprehensive Plan

53. MMCA failed to present evidence or argument to

demonstrat e that any of the Plan Amendments is inconsisten t with

the State Comprehensive Plan.

Other Issues

54. MCCA raised other issues in its petitions for which it

did not present evidence at the final hearing. With regard to

all the issues raised by MCCA that are not specifically

addressed above, MCCA failed to prove an inconsistency.

The Groves' I ssues

55. The GrovesÓ principal objection to the Plan Amendments

is with the CountyÓs methodology for determining the need for

residential dwelling units, which is based in large part on the

a residential capacity analysis (RCA) set forth in FLUE Policy

4 .1D.4, adopted by Ordinance No. 845.

56. The Groves contend that the RCA overestimates the

capacity or supply of dwelling units on vacant lands that can be

used to meet projected population growth. Because need is

derived from a comparison of supply and demand, the Groves

contend that the RCAÓs overestimation of supply will always

cause the County to underestimate the need for additional

dwelling units.

57. FLUE Policy 4.1D.4 provides:

The County shall consider the following

factors in its residential ca pacity

analysis:

1. The current peak population, based on

the University of FloridaÓs Bureau of

Economic and Business Research (BEBR) medium

population, shall be used to demonstrate the

unit need in the fifteen year planning

period;

2. A market factor of 125 percent shall be

applied to the unit need;

3. The Eastern Urban Service District and

the Indiantown Urban Service District shall

be considered separately;

4. Maximum density shall be calculated for

Future Land Use categories in which

residential development is allowed;

5. Wetland acreage shall be subtracted from

the vacant, undeveloped acreage;

6. Because some land will be taken up by

non - residential uses such as roads and

utilities, a reduction of 8.5 percent shall

be calculated to account f or such uses.

58. In the past, Martin County used a similar methodology

for determining residential need, but it was not a part of the

CGMP.

59. New FLUE Policy 4.1D.3 requires that a new RCA be

performed every two years. The RCA is to be used to evalu ate

future plan amendments and future changes to USD policies.

60. The Groves did not dispute the CountyÓs calculation of

residential demand, the number of dwelling units needed to serve

the projected population through the planning period 2010 to

2025. As stated in FLUE Policy 4.1D.4, demand is based on mid -

range population projections from the University of FloridaÓs

Bureau of Economic and Business Research, which is then adjusted

by a 125 percent market factor. A market factor is a multiplier

that is applied to account for factors that prevent the full or

efficient use of densities allowed by a FLUM.

61. FLUE Policy 4.1D.4 requires that the Eastern USDs and

the Indiantown USDs be considered separately. This requirement

is based on an historical patte rn of higher population growth

east of the Florida Turnpike and the expectation that the

pattern will continue into the foreseeable future.

62. The County projected an increase of 17,598 new

residents in the Eastern USDs and an increase of 754 in the

Indi antown USDs by 2025. When these figures are divided by

average persons per household (2.21), the result is a demand for

7,963 dwelling units in the Eastern USDs and 341 dwelling units

in the Indiantown USDs.

63. Applying the market factor of 125 percent results in a

demand for 9,954 dwelling units in the Eastern USDs, and 426

units in the Indiantown USDs for the 2010 - 2025 planning period.

64. To calculate the residential supply of dwelling units

that can be developed on existing vacant lands, FLUE Policy

4.1D.4 directs that the calculation begin by determining the

maximum density allowed under each future land use category of

the vacant lands. In the following discussion, the maximum

density allowed under a future land use designation will be

referred to as the ÐtheoreticalÑ maximum density.

65. It is the general practice of the Department to

require local governments to use theoretical maximum densities

in a need analysis unless there are policies in the

comprehensive plan preventing landowners from att aining the

theoretical maximum densities. However, like the Department's

general practice to accept a market factor no greater than 125

percent, these are not requirements explicitly stated in

Department rules from which the Department never deviates.

66. FLUE Policy 4.1D.4 incorporates two limiting factors

that prevent the attainment of theoretical maximum densities:

(1) wetlands and (2) roads rights - of - way and utility easements.

67. Development is generally prohibited in wetlands.

However, landowners whose lands contain wetlands can transfer

half of the ÐlostÑ density associated with the wetland acreage

to the uplands. Therefore, in calculating the acreage of vacant

lands that are available for residential development, the RCA

subtracts half the wetl and acreage.

68. The County also reduces the total vacant land acreage

by 8.5 percent to account for the loss of developable acreage

due to the presence of road rights - of - way and utility easements

within which development is prohibited.

69. After reducin g the total acres of vacant lands in the

USDs to account for wetlands and for rights - of - way and

utilities, the County determined that there is a supply or

vacant land capacity of 5,790 dwelling units in the Eastern USDs

and 5,335 units in the Indiantown US Ds.

70. The County then adjusted these numbers to account for

approved residential developments that have not yet been

constructed. This adjustment resulted in final calculation of

the existing supply in the Eastern USDs of 9,339 dwelling units

and an ex isting supply in the Indiantown USDs of 6,686 dwelling

units.

The Groves' Critique of the RCA

71. The Groves argue that the RCA overestimates supply by

failing to account for other policies of the CGMP that restrict

development and prevent a landowner fro m attaining the

theoretical maximum density .

72. Conservation and Open Space Element (COSE) Policy

9.1G.4 requires the preservation of a wetland buffer around a

wetland. There was conflicting evidence about whether the

County credits the landowner for th e acreage set aside as a

wetland buffer.

73. The Groves contend that no credit is given and cites

Table 4 - 2 of the FLUE, which indicates that wetland buffer

acreage is not subtracted to arrive at the total available

acreage that can be developed. The Gro ves also point to the

testimony of a County planner, who stated that the County

intended to subtract buffer acreage from vacant land acreage,

but ultimately did not do so "based on adamant public comment."

However, the County's planning director, Nicki Va n Vonno, stated

that "[Y]ou do get the full density off of the buffer land."

74. It would be logical for the County to not subtract

wetland buffer acreage when calculating residential capacity if

the landowner is getting full credit for the buffer acreage .

Therefore, it is found that the County allows a full transfer of

the density associated with wetland buffer acreage to the

uplands.

75. COSE Policy 9.1G.5 requires that 25 percent of upland

native habitat on a site be preserved. The landowner is allow ed

to transfer density from these native upland habitat areas to

the unaffected areas of the property. Nevertheless, the Groves

contends that COSE Policy 9.1G.5 impairs the ability of

landowners to attain the theoretical maximum density.

76. The CGMP als o requires a portion of the site be set

aside for sufficient water retention and treatment. The RCA

does not account for any loss of density caused by water

retention and treatment areas.

77. The County had proposed to reduce the theoretical

maximum dens ity by 15 percent to account for "surface water

management and required preservation , Ñ but abandoned the idea

when the Department objected to it as not adequately supported

by data and analysis.

78. The evidence presented at the hearing was insufficient

t o establish that the requirements of the CGMP associated with

surface water management and preservation reduces the

theoretical maximum density of residential lands by 15 percent.

79. The County has a mixed - use land use category called

Commercial - Office - R esidential (COR). Th e County allows only a

third of a COR parcel to be developed for residential uses and

this practice reduces the theoretical maximum density of COR

lands. However, t he RCA assumes 100 percent of the COR acreage

is available for residen tial use. The County attempted to

justify this discrepancy by pointing out that the limit ation of

residential uses on COR lands is not incorporated in to the CGMP.

However, it is an undisputed fact (datum) that the County's

practice reduces residential ca pacity on COR lands . The RCA

fails to account for this fact.

80. If the RCA accounted for the limitation of residential

development on COR lands, the supply of dwelling units in the

Eastern USDs would be reduced by 733 units.

81. FLUE Policy 4.13A.7.(1) (a) establishes a 40 - foot

height limit countywide which sometimes prevents a landowner

from attain ing the theoretical maximum densit y .

82. The RCA does not account for any loss of density

caused by building height restrictions.

83. FLUE Policies 4.1F.1 t hrough 4.1F.3 require

transitional density zones when land is developed at a higher

density than adjacent lands. FLUE Policy 4.1F.2 establishes a

zone (or ÐtierÑ) abutting the adjacent land, equal to the depth

of an existing adjacent residential lot in wh ich development is

restricted, to the same density and compatible structure types

( e.g ., height) as on the adjacent property.

84. The RCA does not account for any loss of density due

to the tier policies.

85. Although the landowner is allowed to transfer density

to the unaffected portion of the property in the case of some

development restrictions imposed by the CGMP, there is not

always sufficient acreage remaining to make full use of the

transferred density.

8 6 . The Groves' expert witness, Rick Warner, reviewed

residential development projects that had been approved or built

during the past 15 years in the Eastern USDs and compared the

actual number of approved or built units to the theoretical

maximum density allowed by the applicable land use designat ion

for the property at the time of approval. Warner determined

that, on average, the projects attained only about 45 percent of

the theoretical maximum density.

87. The Groves presented the testimony of Morris Crady,

who testified that, of the 14 develo pment projects in the County

that he was involved in, CGMP policies caused the projects to be

developed at 1,285 units fewer than (about 41 percent of) the

maximum theoretical density.

88. Comparing the CountyÓs estimated demand for 9,954

dwelling units i n the Eastern USDs through 2025 with the

CountyÓs estimated supply of 9,339 dwelling units, indicates a

deficit of 615 dwelling units.

89. Comparing the CountyÓs estimated demand for 426

dwelling units in the Indiantown USDs through 2025 with the

CountyÓs estimated supply of 6,686 dwelling units, indicates a

surplus of 6,260 dwelling units.

90. The County decided to make no changes to the FLUM

because it believes the projected population can be accommodated

with existing land use designations.

91. The Gr oves argue that, because the RCA overestimates

supply, the deficit in the Eastern USDs is actually

substantially larger. 5/ For example, taking into account the

County's policy regarding limiting residential uses on COR

lands, the deficit would be 1,348 un its in the Eastern USDs.

The deficit would be enlarged by the effects of the other

factors discussed above that reduce a landowner's ability to

attain the theoretical maximum density.

92. The County contends that there is additional

residential capacity outside the USDs that should be considered.

The County also points to the large surplus of available

dwelling units in the Indiantown USDs. The County asserts that

there is excess supply to meet the need when all the available

dwelling units in the County are considered. These other

considerations, however, are not a part of the RCA and,

therefore, are in conflict with the RCA.

Acres vs. Dwelling Units

93. The Groves assert that County's determination of

residential does not identify the amount of land n eeded for each

category of land use as required by law, but, instead, expresses

need solely in terms of total dwelling units.

94. The Department has accepted residential need analyses

expressed in dwelling units.

95. Dwelling units can be converted into acreages, but

only if one is told what density to apply. A local government

must determine how many dwelling units it wants in each land use

category in order to convert a need expressed in total dwelling

units into a need expressed in acreages.

96. Mart in County believes that it has a sufficient supply

of dwelling units to meet the projected population through the

planning period. Apparently, the County is also satisfied with

the existing size and distribution of future land use categories

as depicted o n the FLUM. The existing vacant land acreages for

each land use category, set forth in the CGMP, represents the

amount of land in each land use category that the County

believes is needed to meet the projected population.

97. However, there is an imbalan ce in the various types of

residential land uses in the Eastern USDs. For example, there

are only 13 acres of high density residential land and 57 acres

of medium density residential land remaining in the Eastern

USDs. In contrast, there are 2,950 acres of rural residential

lands.

98. The County has acknowledged that its past emphasis on

low - height and low - density has contributed to a lack of

affordable housing. The Treasure Coast Regional Planning

Council noted that the small amount of vacant land in t he County

available for medium and high residential development

contribute s to the lack of affordable housing in the County.

99. The Plan Amendments include policies which are

designed to address the imbalances in land uses and the lack of

affordable hous ing. These policies include permitting accessory

dwelling units for urban residential development; allowing a 10

du/ac density bonus and an affordable housing density bonus in

Medium Density Residential developments; reducing the criteria

for an affordabl e housing density bonus in High Density

Residential developments; and reviewing residential capacity in

the Indiantown USDs.

Commercial Need

100. There is no state - wide standard for the amount of

commercial, industrial, institutional, conservation, or

ag ricultural lands that a local government must identify in its

comprehensive plan in order to accommodate its projected

population.

101. The County acknowledges that there is a deficit of

commercial land necessary to accommodate economic needs , but no

chan ges in the FLUM are proposed as part of these EAR - based

amendments.

CONCLUSIONS OF LAW

Standing

102. For standing to challenge a plan amendment, a

challenger must be an Ðaffected person,Ñ which is defined in

Section 163.3184(1)(a), Florida Statutes, as a person who

resides, owns property, or owns or operates a business within the

local government whose comprehensive plan amendment is

challenged, and who submitted comments, recommendations, or

objections to the local government during the period of time

beg inning with the transmittal hearing and ending with

amendmentÓs adoption.

103. The Administration Commission liberally interprets

Ðoperating a businessÑ for the purpose of standing as an

affected person. See Dept. of Comm. Affairs v. Miami - Dade

County , D OAH Case No. 08 - 3614GM (Admin. Comm'n July 30, 2009)

(1000 FriendsÓ fundraising, lobbying, and litigation activities

and efforts to promote growth management, affordable housing,

and Everglades restoration in Miami - Dade County were sufficient

to establish that 1000 Friends operates a business).

104. MCCAÓs regular and frequent activities in Martin

County to promote growth management and environmental protection

are sufficient to establish that MCCA operates a business within

the C ount y. Therefore, MCCA ha s standing as an affected person.

105. In general, an association has standing to sue on

behalf of its members when a substantial number of them would

have standing to sue in their own right and the interests that

the association seeks to protect are germ ane to its purposes.

See Fla. Home Builders AssÓn v. Dept. of Labor and Employment

Security , 412 So. 2d 351 (Fla. 1982). MCCA has standing as an

association representing affected persons .

10 6 . Melzer and Ackerly have standing as affected persons.

10 7 . The Groves have standing as affected persons.

Burden and Standard of Proof

10 8 . Pursuant to Section 163.3184, Florida Statutes, the

Department is to determine whether comprehensive plan amendments

are Ðin compliance.Ñ The term Ðin compliance Ñ is define d in

Section 163.3184(1)(b), Florida Statutes:

In complianceÑ means consistent with the

requirements of ss. 163.3177, when a local

government adopts an educational facilities

element, 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

and with part III of chapter 369, where

applicable.

10 9 . A p erson who challenge s a plan amendment as being not

in compliance bear s the burden of proof. See Young v.

Department of Community Affairs , 625 So. 2d 831 (Fla. 1993).

11 0 . The Department fou nd the Plan Amendments to be Ðin

compliance.Ñ Therefore, pursuant to Section 163.3184(9)(a),

Florida Statutes, the Plan Amendments shall be determined to be

in compliance if Martin CountyÓs determination of compliance is

fairly debatable.

11 1 . The term Ð fairly debatableÑ is not defined in Chapter

163, Part II, Florida Statutes. The Florida Supreme Court in

Martin County v. Yusem , 690 So. 2d 1288 (Fla. 1997), held that

[Ðt]he fairly debatable standard is a highly deferential

standard requiring approval of a planning action if reasonable

persons could differ as to its propriety.Ñ Id. at 1295.

11 2 . The standard of proof to establish a finding of fact

is preponderance of the evidence. See § 120.57(1)(j), Fla.

Stat.

Non - substantive Changes

11 3 . Martin Cou nty argues that non - substantive amendments

to a comprehensive plan are not subject to an "in compliance"

determination. That is not a correct statement of the law

because it would allow local governments to decide what

amendments must be submitted to the Department for compliance

review. The correct statement is that, after a comprehensive

plan is determined to be in compliance, any non - substantive

amendments to the plan should also be determined to be in

compliance.

11 4 . It appears that MCCA, while part icipating in the EAR -

based amendment process, became aware of the potential

applications of FLUE policies that MCCA believes would be

harmful to the rural areas of the County. However, MCCAÓs

attribution of these perceived problems to the EAR - based

amendm ents is misplaced. MCCA showed that some FLUE policies

are unclear and, therefore, could create problems , but MCCA did

not show that the lack of clarity was created by the Plan

Amendments.

Data and Analysis

11 5 . Section 163.3177(10)(e), Florida Statutes, requires

plan amendments to be based upon appropriate data. Florida

Administrative Code Rule 9J - 5.005(2)(a) requires all amendments

to be based on relevant and appropriate data and analysis.

11 6 . To be based on data means to react to it in an

appropriat e way and to the extent indicated by the data. See

Fla. Admin . Code R. 9J - 5.005(2)(a).

11 7 . The data which may be relied upon in this proceeding

are not limited to the data which were specifically identified

or used by the County in proceedings leading u p to the adoption

of the Plan Amendments. All data available to the County and in

existence at the time of adoption of the Plan Amendments may be

relied upon to support the amendments. See Zemel v. Lee County ,

DOAH Case. No. 93 - 2260GM , affÓd , 642 So. 2d 1367 (Fla. 1st DCA

1994).

1 18 . Analysis which may support a plan amendment need not

have been in existence at the time of adoption of the plan

amendment. Data existing at the time of the adoption may be

subject to new analysis through the time of the adm inistrative

hearing. Id .

11 9 . The RCA in FLUE Policy 4.1D.4 is not based on the

best available data. It fails to react appropriately to the

best available data. As a result, the RCA fails to accomplish

its purpose to accurately determine residential ca pacity or

supply. It overestimates supply and, therefore, would cause the

County to underestimate need.

12 0 . Policy 4.1D.4 is not based on the best available data

and analysis regarding the effect of CGMP provisions to reduce a

landowner's ability to att ain the theoretical maximum density

allowed by the land use designation. The effect of each

separate development limitation was not quantified, but the

combined effect of all the limitations was sufficiently

quantified to prove that their effect is substa ntially greater

than accounted for in Policy 4.1D.4.

12 1 . The County's response that it has already been using

a similar methodology is unpersuasive. The County was not using

the identical methodology and the methodology was not previously

subject to a c ompliance review.

12 2 . The County's response that the underestimation of

residential capacity is offset if one considers the residential

capacity outside the USDs is unpersuasive because Policy 4.1D.4

does not provide for that consideration.

12 3 . The Cou nty's response that the deficit in the Eastern

USDs is offset if one considers the surplus in the Indiantown

USDs is unpersuasive because Policy 4.1D.4 specifically requires

that these USDs be considered separately.

12 4 . The Groves proved beyond fair deb ate that Policy

4.1D.4 is not based on the best available data and analysis.

Acres v. Dwelling Units

12 5 . Section 163.3177(6)(a), Florida Statutes, requires

that Ð[t]he future land use plan shall be based upon surveys,

studies, and data regarding the area , including the amount of

land required to accommodate anticipated growth." This

requirement is also found in Florida Administrative Code Rule

9J - 5.006(2)(c), which requires that the FLUE be based upon the

amount of land needed to accommodate the projecte d population,

including the estimated gross acreage needed by land use

category.

12 6 . The Groves' assertion that the County failed to

express residential need in terms of the amount of land needed

in each land use category was refuted because specific ac reages

for all land use categories were calculated and shown by the

County .

Affordable Housing

12 7 . The Groves entwined their issue about the County's

failure to express residential need in terms of the amount of

land needed with the Groves' issue about the County's failure to

address the shortage of affordable housing. These issues are

related, but they are separate issues. The Groves' affordable

housing issue is more precisely a challenge to the County's

failure to increase the amount of medium and hi gh density

residential lands as a means to provide more affordable housing.

1 28 . T he County addressed affordable housing in the Plan

Amendments. Although the record evidence supports the Groves'

contention that the changes made by the County's are not l ikely

to substantially alleviate the shortage of affordable housing,

the changes would result in some improvement.

1 29 . An "in compliance" determination is not a

determination of whether a plan amendment is the best or most

effective means to accomplish a comprehensive planning

objective.

13 0 . The County's determination that the Plan Amendments

are in compliance with regard to affordable housing, is fairly

debatable.

Internal Consistency

13 1 . The elements of a comprehensive plan must be

coordinated an d consistent. § 163.3177(2), Fla. Stat.

13 2 . Because Policy 4.9H.2, regarding residential PUDs,

indicates that commercial uses can be part of a residential PUD,

even if the PUD is outside the Primary USDs, it conflicts with

Policy 4.7A.2 , which requires all new commercial development to

be located in the Primary USDs. Policy 4.9H.2 also conflicts

with Objective 4.5F and the policies that implement the

objective.

13 3 . MCCA proved that it is beyond fair debate that Policy

4.9H.2 causes the CGMP to be inte rnally in consistent.

Ordinance No. 847

13 4 . The issues raised by Intervenors in DOAH Case

No. 10 - 0913GM regarding the adoption through Ordinance No. 845

of a new policy for ÐEssential Services NodesÑ are moot due to

the CountyÓs rescission of the pol icy by Ordinance No. 8 5 7. The

DepartmentÓs position is that when a local government

unilaterally rescinds all or part of a plan amendment, the

rescinding ordinance is not itself a comprehensive plan

amendment. That is a reasonable interpretation and appl ication

of Chapter 163, Florida Statutes.

135. MCCA asserts that the only cases cited by the

Department in support of its position are cases in which an

entire ordinance (and, therefore, all of the amendments included

in the ordinance) was rescinded. How ever, MCCA cites no cases

to support its own argument that the County had to rescind all

(or nothing) of Ordinance No. 845. The cases that are most

closely - related in procedural posture support the Department,

not MCCA.

13 6 . The Department voluntarily di smissed its petition

challenging Ordinance No. 845 when the proposed new Essential

Services Nodes policy was rescinded by the County. It is a

fundamental right of a party to dismiss a legal action or claim.

It is a right that should not be destroyed or di scouraged unless

the LegislatureÓs intent to do so is clearly expressed by

statute. There is no such clear expression in Section 163.3184.

13 7 . Because this is a de novo proceeding to determine

agency action, the Department could change its position on a ny

disputed issue by notifying the Administrative Law Judge and the

other parties, which the Department did in this case by filing a

notice of voluntary dismissal. 6/

13 8 . The fact that a procedure has been established for

the Department and a local govern ment to resolve their disputes

through a Ðcompliance agreementÑ does not constitute a

prohibition against a local governmentÓs rescission of a plan

amendment to which the Department is opposed. Following the

rescission, there is no longer a dispute to be resolved. To

insist upon a compliance agreement when the local government is

willing to unilaterally rescind the disputed amendment is to

champion form over substance.

13 9 . MCCAÓs argument that the actions of the County and

the Department violated the Ðs afe harborÑ provision of Section

163.3184(16 ) (f)1. is without merit. The statute provides that,

if the Department and a local government resolve their disputes

through a compliance agreement, the case does not go away, the

intervenors are realigned as pet itioners, and the new

petitioners can raise additional issues aimed at any new plan

amendments created as a result of the compliance agreement.

1 40 . In DOAH Case No. 10 - 0913GM , the parties were

realigned following the DepartmentÓs voluntary dismissal. Th e

realignment of the parties preserved the intent and accomplished

the purposes of Section 163.3184(16)(f)1. Every issue that

MCCA, Melzer, Ackerly, and the Groves raised with respect to the

remaining amendments adopted by Ordinance No. 845 was preserved.

There were no new amendments created by a compliance agreement

to challenge. The "safe harbor" was unaffected by the CountyÓs

adoption of Ordinance No. 8 5 7 and the DepartmentÓs voluntary

dismissal.

State Comprehensive Plan

14 1 . MCCA failed to go forward with evidence and argument

to prove that the Plan Amendments are inconsistent with the

State Comprehensive Plan.

Summary

142. In summary, MCCA and the Groves failed to prove

beyond fair debate that the Plan Amendments are not in

compliance, with the exc eption of Policies 4.1D.4 and 4.9H.2.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that Plan Amendments are Ðin

compliance,Ñ except for the following policies adopted by Martin

County Ordinance No. 845, which the Department should determine

are not "in compliance":

1. FLUE P olicy 4.1D.4; and

2. FLUE Policy 4.9H.2.

DONE AND ENTERED this 3rd day of September , 2010 , in

Tallahassee, Leon C ounty, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of September , 2010 .

ENDNOTES

1/ All references to the Florida Statutes are to the 2009

codification.

2/ Plan amendments do not take effect until the conclusi on of

any challenges brought pursuant to Section 163.3184, Florida

Statutes. See § 163.3189(2)(a), Fla. Stat.

3/ The term Ðsmall - scale service establishmentsÑ is not defined

in the CGMP and the evidence presented at the final hearing

showed that there i s a wide disparity of opinion among planners

about the meaning of the term.

4/ Policy 4.5F.2 allows for residential PUDs and a County

employee testified that a residential PUD requires a residential

land use designation. If so, then changing an agricult ural land

use designation to a residential land use designation would be

necessary for a residential PUD.

5/ The Groves contend that the RCA makes it less likely that

Martin County will expand the USDs to accommodate a future need.

Expanding the USDs is not the only way to meet a future need for

additional dwelling units. Higher densities could be allowed on

lands within the USDs to increase the supply of dwelling units.

6/ The DepartmentÓs issuance of an amended Notice of Intent was

unnecessary. It might also have conflicted with Section

120.569(2)(a), Florida Statutes, which prohibits an agency from

taking further action with respect to a matter in a DOAH

proceeding except as a party litigant.

COPIES FURNISHED :

L. Mary Thomas, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Andrew J. Baumann, Esquire

Lewis, Longman and Walker, P.A.

515 North Flagler Drive, Suite 1500

West Palm Beach, Florida 33401

Linda Loomis Shelley, Esquire

Fowler White Bog gs, P.A.

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32301 - 1547

Donna Sutter Melzer, Esquire

Donna Sutter Melzer, Attorney at Law

3471 Southwest Centre Court

Palm City, Florida 34990

David A. Acton, Esquire

Martin County Administrative Cen ter

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3397

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shu m ard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2160

Jerry McDaniel, Director

Office of the Governor

The Capitol, Room 1802

Tallahassee, Florida 32399 - 1001

Rick Figilio, General Counsel

Office of the Governor

The Capitol, Suite 209

Tal lahassee, Florida 32399 - 1001

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399 - 0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excepti ons 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.