01-004826GM Sally O`connell, Donna Melzer, And Martin County Conservation Alliance, Inc. vs. Martin County And Department Of Community Affairs Status: Closed Recommended Order on Wednesday, October 16, 2002.

Summary: Local government properly collected and analyzed data to support commercial land inventory used in demand projections and Future Land Use Map changes; amendments in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SALLY O'CONNELL; DONNA )

MELZER; and MARTIN COUNTY )

CONSERVATION ALLIANCE, )

)

Petitioners, )

)

vs. ) Case No. 01 - 4826GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and MARTIN COUNTY, )

)

Respondents, )

)

and )

)

DICK BLYDENSTEIN and ECONOMIC )

COUNCIL OF MARTIN COUNTY, )

)

Intervenors. )

_ _______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on March 5 - 8,

April 30, and May 1, 2002, in Stuart , Florida.

APPEARANCES

For Petitioners: Richard J. Grosso, Esquire

Environmental and Land Use Center, Inc.

3305 College Avenue

Shepard Broad Law Center

Fort Laude rdale, Florida 33314 - 7721

Joan P. Wilcox, Esquire

2336 Southeast Ocean Boulevard, PMP 110

Stuart, Florida 34996

For Respondent: Colin M. Roopnarine, Esquire

(DCA) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent: David A. Acton,, Esquire

(County) Office of County Attorney

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3322

For Intervenor: Johnathan A. Ferguson, Esquire

(Blydenstein) Ruden, McClosky, Smith, Shuster

& Russell, P.A.

145 Northwest Central Park Plaza

Suite 200

Port St. Lucie, Florida 34986 - 2482

For Intervenor: Linda R. McCann, Esquire

(ECMC) Royal P alm Financial Center

789 South Federal Highway, Suite 310

Stuart, Florida 34994 - 2962

STATEMENT OF THE ISSUE

The issue is whether plan amendments 00 - 1, 97 - 4, and 01 - 7

adopted by Ordinance No. 598 on September 25, 2001, are in

compliance.

PRELIMINARY STATEMENT

This matter began on September 20, 2001, when Respondent,

Martin County, adopted Ordinance No. 598 approving certain

amendments to its Comprehensive Plan. After Respondent,

Department of Community Affair s, published a Notice of Intent

to find the plan amendments in compliance, on December 7,

2001, Petitioners, Donna Melzer, Sally O'Connell, and Martin

County Conservation Alliance, Inc., filed a Petition for

Formal Administrative Hearing challenging the pl an amendments

on numerous grounds. The matter was forwarded to the Division

of Administrative Hearings on December 13, 2001, with a

request that an Administrative Law Judge be assigned to

conduct a hearing. On December 20, 2001, Petitioners filed an

Amen ded Petition for Formal Administrative Hearing. By Orders

dated January 22 and February 5, 2002, Intervenors, Dick

Blydenstein and Economic Council of Martin County, were

authorized to intervene in this proceeding. Intervention by

Economic Council of Mar tin County was reconfirmed by Order

dated February 14, 2002, after Petitioners moved to dismiss

that Intervenor.

By Notice of Hearing dated January 11, 2002, a final

hearing was scheduled on March 5 - 8, 2002, in Stuart, Florida.

A continued hearing was als o held on April 30 and May 1, 2002,

at the same location. On February 14, 2002, a Notice of

Demand for Expeditious Resolution under Section 163.3189(3),

Florida Statutes (2001), was filed by Martin County. Because

the final hearing was already scheduled within 30 days of the

filing of that paper, no action on the Notice was necessary.

At the final hearing, Petitioners presented the testimony

of Nicky van Vonno, director of growth management for Martin

County; Fred Goodrow, an urban planning consultant and

accepted as an expert; Donna Melzer, a former County

Commissioner; Charles L. Pattison, executive director of 1000

Friends of Florida; Dr. Arthur C. Nelson, a professional

planner and accepted as an expert; Sally O'Connell; Harry W.

King, a planner with Martin County; Roger Wilburn, a community

program administrator with the Department of Community

Affairs; and Margaret Hurchalla, a former County Commissioner

and accepted as an expert. Also, they offered Petitioners'

Exhibits 6, 9, 13, 28, 32 - 38, 42 , 42C, 49, 51, 58, 59, 90, 98,

99, and 103. All were received in evidence. Respondent,

Department of Community Affairs, presented the testimony of

Roger Wilburn, a community program administrator accepted as

an expert. Also, it offered Department Exhibi ts 1 - 5 and 6A - D,

which were received in evidence. Respondent, Martin County,

presented the testimony of William H. Fruth, an economic

planner; Nicki van Vonno, director of growth management for

Martin County and accepted as an expert; Ted Astolfi, a membe r

of the Martin County Business Development Board and accepted

as an expert; and Dr. Merle F. Dimbath, an economic consultant

and accepted as an expert. Also, it offered County Exhibits

1 - 16 and 17A - C. All were received in evidence. Intervenor,

Economic Council of Martin County, presented the testimony of

Charlene Hoag, its executive director, and offered

Intervenor's Exhibits 1 - 6, which were received in evidence.

Finally, the parties offered Joint Exhibits 1 - 6, which were

received in evidence.

Althou gh prepared on an earlier date, the Transcript of

the hearing (12 volumes) was not filed with the undersigned

until September 16, 2002, while the original exhibits were not

filed until September 17, 2002. By agreement of the parties,

the time for filing p roposed findings of fact and conclusions

of law was extended to September 12, 2002. All parties,

except Economic Council of Martin County, submitted proposed

orders, and they have been considered by the undersigned in

the preparation of this Recommended O rder.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. In this land use dispute, Petitioners, Sally

O'Connell (O'Connell), Donna Melzer (Melzer), and Martin

County Conservation Alliance, Inc. (MCCA), contend that three

amendments (Amendments 00 - 01, 01 - 7, and 97 - 4) to the Martin

County Comprehensive Plan (Plan) adopted by Respondent, Martin

County (County), are not in compliance. Amendment 00 - 01 makes

certain textual changes to the Econom ic Element and Future

Land Use Element (FLUE) of the Plan. Amendments 01 - 7 (also

known as the Blydenstein amendment) and 97 - 4 (also known as

the Seven J amendment) amend the Future Land Use Map (FLUM) by

changing the land use designation on property owned by

Intervenor, Dick Blydenstein (Blydenstein), and Seven J's

Investments, Inc., from Mobile Home Residential and Medium

Density Residential, respectively, to General Commercial. The

parties agree that the validity of Amendments 01 - 7 and 97 - 4 is

contingen t on whether Amendment 00 - 01 is in compliance.

2. On September 25, 2001, the County approved Ordinance

No. 598, which adopted the foregoing amendments and three

other FLUM amendments not relevant to this dispute. On

November 16, 2001, Respondent, Departm ent of Community Affairs

(Department), the state agency charged with the responsibility

of reviewing comprehensive land use plans and amendments,

issued its Notice of Intent to find the amendments in

compliance. In addition, an external review of the amen dments

was conducted by the Department of Transportation (DOT), the

Treasure Coast Regional Planning Council, the Department of

State, and the Department of Environmental Protection. Except

for minor objections by DOT, which were satisfactorily

resolved, no objections were filed by any reviewing agency.

3. On December 7, 2001, as later amended on December 20,

2001, Petitioners filed their Petition for Formal

Administrative Hearing challenging the plan amendments. As

reflected in their unilateral Pre - Hear ing Statement,

Petitioners contend that:

The data and analysis for the amendments

was not available to the public throughout

the review and adoption process.

The conclusions about supply and demand for

commercial land uses that underlie the

adoption of th e amendments to the Economic

and Future Land Use Elements, and the

"Blydenstein" and "7J" [FLUM] Amendments

are not supported by the best available and

professionally acceptable data and

analysis. Instead of a deficit of, and

need for, land available for commercial

uses, there is a surplus of land available

for such uses.

The "Blydenstein" and "7J" [FLUM]

Amendments are not supported by data and

analysis concerning the availability of

infrastructure, the character of the land

and the need for redevelopmen t. The

approval of these FLUM amendments is

inconsistent with several provisions of Ch.

163, Fla. Stat., Rule 9J - 5, F.A.C., and the

Martin County Comprehensive Plan.

These allegations may be grouped into three broad categories:

(1) that the data and ana lysis was not available for public

inspection throughout the adoption process; (2) that the plan

amendments are not based on the best available, professionally

acceptable data and analysis; and (3) that the Blydenstein and

Seven J amendments are not suppor ted by data and analysis as

they relate to infrastructure, character of land, and need for

redevelopment and thus are inconsistent with relevant

statutes, Department rules, and Comprehensive Plan provisions.

Although Petitioners have not addressed the fir st allegation

in their Proposed Recommended Order, and have apparently

abandoned that issue, in an abundance of caution, a brief

discussion of that matter is presented below.

b. The parties

4. The Department is the state land planning agency

responsible for reviewing and approving comprehensive plan

amendments by local governments.

5. The County is a political subdivision of the State

and is the local government which enacted the three plan

amendments under review. The overall size of the County is

appr oximately 538 square miles, with agricultural uses on 72

percent of the land, residential uses on 16 percent of the

land, public conservation uses on 6.5 percent of the land, and

other uses (such as commercial, industrial, and institutional)

on the remaini ng 5.5 percent of the land. The current

population is around 125,300 residents.

6. Blydenstein is the owner of the property that is the

subject of Amendment 01 - 7. He submitted oral and written

comments concerning Amendment 01 - 7 to the County during its

adoption.

7. Melzer is a former County Commissioner who resides

and owns property within the County. She is also the

chairperson and member of the board of directors for MCCA.

Melzer presented comments in opposition to all three

amendments during the ti me period beginning with the

transmittal hearing for the plan amendments and ending with

the adoption of those amendments.

8. O'Connell has resided and owned property in the

County since 1984. She presented comments to the County in

opposition to Amendme nts 00 - 01 and 97 - 4 (but not to Amendment

01 - 07) during the time period beginning with the transmittal

hearing for the plan amendments and ending with the adoption

of those amendments.

9. MCCA is a not - for - profit corporation first organized

in 1965 and lat er incorporated in 1997 to advocate and promote

the protection of the natural environment and quality of life

in the County. The specific purpose of the corporation is to

"conserve the natural resources of Martin County, to protect

the native flora and fa una of Martin County, to maintain and

improve the quality of life for all of the residents of Martin

County, and to work to these ends."

10. The corporation holds monthly meetings and annual

forums to educate its members and others about issues related

to the County's growth management. In prior years, it has

actively participated in the development of the County's

Comprehensive Plan and actively advocated for a public land

acquisition program in the County. Presently, there are 104

individual members (of whom 99 reside in the County), 9

delegates at large, and 20 corporate and non - profit corporate

members. The latter group includes such organizations as 1000

Friends of Florida, the Marine Resources Council, and the

Citizens Stormwater Protection Group , who also have individual

members residing within the County. The parties have

stipulated that MCCA made comments to the County in opposition

to the three amendments and that a substantial number of MCCA

members own businesses within the County. The rec ord also

shows that MCCA's Board of Directors passed an appropriate

resolution authorizing MCCA to file this action.

11. Intervenor, the Economic Council of Martin County

(ECMC), is a non - profit corporation whose mission is to

dedicated to building a qu ality community which provides a

healthy economy and protects the quality of life and to

encourage the planned growth of the County. Like the MCCA,

the ECMA has actively participated in the development of the

Comprehensive Plan. Its members are individua ls and

businesses who reside, own property, and operate businesses

within the County. The ECMC made comments to the County in

support of the three amendments during the adoption of those

amendments.

c. The Amendments

12. Amendment 00 - 01 represents a policy change by the

County and amends the text of the Economic Element and FLUE to

change the methodology for determining the need for commercial

land within the County. Prior to the amendment, the County

used a supply - demand equation based upon an "acr eage per

population" methodology to determine the amount of commercial

land use necessary to serve the County. Under the old

methodology, relevant portions of the FLUE, in conjunction

with various provisions in the Economic Element, were used to

establish a supply - demand equation that would determine

whether the projected need for commercial lands by a future

population of the County could be met by the current amount of

designated lands. If the result of the equation was a surplus

of commercial lands, th at factor alone would require the

denial of any request to redesignate land for commercial use,

regardless of any other factor or circumstance. According to

the repealed text of the Plan, this methodology produced a

1,131 - acre surplus of commercial lands for the year 2010.

13. The County proposes to use a more flexible policy

and guideline type of review to make this need determination.

Rather than projecting future demand for commercial land based

solely on a numerical calculation, the County will make that

determination based on a number of factors which must be

weighed together, such as suitability, location,

compatibility, community desire, and numerical need. It also

proposes to change the manner in which numerical need is

determined. Under the new methodology, the County will now

use jobs and the amount of land needed to support those jobs.

Put another way, commercial demand will be based on the

projected number of jobs in the future. Using the new

methodology, and after adding a 25 percent marke t factor, the

County projects that in the year 2015 there will be a

commercial land deficit of 112 acres.

14. To accomplish this change in policy, the amendment

alters the text of the Economic Element and FLUE by moving

some language from the goals, obj ectives, or policies sections

of the elements to preliminary sections that contained

summaries of the data and analysis relied upon for each

element. It also eliminates certain language from the goals,

objectives, and policies of the elements, or from the

preceding sections containing summaries of data and analysis,

where such language was redundant and already appeared

elsewhere in the Plan. In contrast to the former provision,

the new amendment makes a finding that "the raw data appears

to show that the re is a significant deficit of commercial land

necessary to accommodate economic needs if Martin County's ten

year trend toward retail/service jobs continues."

15. Amendment 01 - 07 pertains to a 27.8 - acre triangular -

shaped tract of land located less than a mile south of the

center of the urban area of Indiantown, a small community in

the southwestern part of the County. The property, which lies

within the County's Primary Urban Service District, is bounded

on the north by State Road 76, a major arterial r oadway which

connects Indiantown with Stuart, on the west by State Road

710, another major arterial roadway which connects Indiantown

with Okeechobee and Palm Beach Counties, and on the east by

Southwest Indiantown Avenue, which connects State Roads 76 and

710. The site is surrounded by vacant property, including

Agriculture - designated land on three sides, and Estate Density

Residential on the other. Immediately north of State Road 76

lies the C - 44 Canal, a major waterway that connects Lake

Okechobeee wit h the South Fork of the St. Lucie River and

ultimately the Atlantic Ocean. A two - lane bridge (with no

pedestrian walkway) provides automobile access from Indiantown

to the Blydenstein property. The amendment changes the land

use designation on the proper ty from Mobile Home Residential

(8 dwelling units per acre) to General Commercial. Even

though the property is designated for use as a mobile home

park, the property has been vacant and undeveloped for more

than 20 years and is used principally for cattle grazing.

16. The Seven J property consists of 2.99 acres located

just west of Jensen Beach in the northern part of the County

at the intersection of U.S. Highway 1 and Westmoreland

Boulevard, both major arterial roadways. The property is

adjacent to a partially built Development of Regional Impact

(DRI) known as the West Jensen DRI and is virtually surrounded

by other commercial uses. The amendment changes the land use

designation on the property from Medium Density Residential (8

dwelling units per a cre) to General Commercial. Presently, a

nursery, older residential homes, rental property, and

wetlands are found on the property; the nearby property is

primarily made up of both developed and undeveloped commercial

land.

d. Availability of Data and Analysis

17. Rule 9J - 5.005(1), Florida Administrative Code,

requires in part that "[a]ll background data, studies,

surveys, analyses, and inventory maps not adopted as part of

the comprehensive plan shall be available for public

inspection while the compr ehensive plan is being considered

for adoption and while it is in effect." Relying upon this

provision, Petitioners have contended in their Unilateral

Prehearing Stipulation that the County failed to make such

data and analysis "available to the public th roughout the

review and adoption process."

18. At least one general source of data that was used by

County experts was not physically present in the County

offices for inspection by the public during the adoption

process. That derivative data source wa s entitled "CEDDS

2000: the Complete Economic and Demographic Data Source" and

was prepared by Woods and Poole Economics, a Washington, D.C.

consulting firm. The data source was used by one of the

County's experts (Dr. Nelson) "to generate [the] demand

nu mbers" in his technical report. In order to inspect and

review this data, Petitioners, like the County or any other

interested person, would have had to purchase a copy from the

authors. However, all of the data and analyses accumulated or

generated by t he County staff were available for public

inspection during the time between the transmittal and

adoption of the amendments under review. Further, Petitioners

did not show how they were prejudiced by the failure of the

County to maintain the Woods and Poo le data in their offices.

19. The Department does not construe the foregoing rule

as narrowly as Petitioners, that is, that every piece of data

relied upon by a local government must be physically present

in the jurisdiction of the local government. Inde ed, the

Department has never found a plan amendment out of compliance

solely on the basis that data was not physically located at a

local government's offices. Rather, it construes the rule

more broadly and considers the rule to have been satisfied so

lon g as data and analyses are "available for public

inspection," even if this means that derivative source data

such as the Woods and Poole report must be purchased from out -

of - state sources.

e. Were the plan amendments based on the best available,

profess ionally acceptable data and analysis ?

20. Petitioners contend that the plan amendments "are

not supported by the best available and professionally

acceptable data and analysis." As to this contention, Rule

9J - 5.005(2)(a), Florida Administrative Code, se ts forth a

general directive that all plan provisions "be based upon

relevant and appropriate data and analyses applicable to each

element." In addition, the same rule requires that the data

must be "collected and applied in a professionally acceptable

ma nner."

21. Petitioners contend that the County's collection of

data to support the amendments, and its analysis of that data,

was not professionally acceptable, as required by the rule.

More specifically, Petitioners contend that the County

undercounte d the commercial land inventory used in projecting

future need by omitting between 80 and 100 acres of

undeveloped commercial land from the West Jensen DRI, by

failing to count commercial development allowed in industrial -

designated lands, and by failing t o include 30 acres of land

at the Witham Field airport which remains available for

commercial development. They also contend that the County

inadvertently failed to include more than 60 acres that were

placed in the Commercial category by amendments to th e FLUM in

1995 and 1996 and which remain undeveloped and available for

new commercial development.

22. In support of the amendments, the County submitted

to the Department more than 1,000 pages of supporting

materials and maps, including 384 pages relat ed to the FLUM

amendments, 642 pages of revised supporting data for the text

amendments, and 89 pages of public comments. In choosing the

sources of data to support the plan, the County used generally

accepted, nationally available data as the basis for i ts

review and revision of the Plan. After reviewing the

foregoing material, the Department found such data and

analysis to be relevant and appropriate.

23. The County also generated extensive data from

locally available information that is unique to the County,

such as an inventory of the lands within the County that are

designated for Commercial uses on the FLUM, but do not yet

have any developed commercial uses on them.

24. As to one of Petitioners' contentions, the County

agrees that its staff inadv ertently omitted 60.4 acres of

commercial property which was changed to that designation by

certain 1995 - 96 FLUM amendments. However, the greater weight

of evidence shows that this omission was not significant in

terms of the overall collection of data, a nd it did not render

the gathering of the other data as professionally

unacceptable.

25. Petitioners go on to contend that the analysis of

the data (in determining the supply inventory) was flawed for

a number of reasons. First, they argue that the und eveloped

portions (around 70 acres or so) of the West Jensen DRI that

are commercially - designated land should have been included in

the commercial land inventory. The West Jensen DRI is an

approximately 180 - acre residential/commercial development with

a l arge commercial component. Even though specific site plans

have not been issued for some of the undeveloped property, the

County excluded all of the undeveloped acreage because the

property is dedicated under a master plan of development, and

therefore it would be inappropriate to include it as vacant

inventory. On this issue, the more persuasive evidence shows

that the treatment of undeveloped land in a DRI (subject to a

master plan of development) is a "close call" in the words of

witness van Vonno, and that it is just as professionally

acceptable to exclude this type of undeveloped land from

vacant commercial inventory as it is to include it.

Therefore, by excluding the West Jensen DRI land from its

inventory count, the County's analysis of the data wa s not

flawed, as alleged by Petitioners.

26. The Plan itself does not allow commercial uses

within the Industrial land category. However, the County's

Land Development Regulations (LDRs) permit certain commercial

uses on Industrial lands when done pursua nt to specific

overlay zoning. While the County (at the urging of the

Department) intends to review (and perhaps repeal) these

regulations in 2003, and possibly create a new mixed - use

category, there are now instances where commercial uses are

located on Industrial lands by virtue of the LDRs. Because of

this anomaly, Petitioners contend that the County's analysis

of the data was flawed because it failed to count vacant,

surplus lands in the Industrial land use category that are

available for commercial d evelopment.

27. Except for arbitrarily allocating all undeveloped

industrial land to the commercial category, as Petitioners

have proposed here, the evidence does not establish any

reasonable basis for making an industrial/commercial division

of indust rial - designated lands for inventory purposes.

Indeed, no witness cited to a similar allocation being made in

any other local government's comprehensive plan as precedent

for doing so here.

28. In those rare instances where the Plan itself

permits multi ple uses in a single land category, such as

Commercial Office/Residential (an office and multi - family land

use designation), the County used a supply figure that was

derived from estimating how much land in this category was

developed commercially as oppos ed to residential and

allocating acreage from the category based on that percentage.

No party has suggested that such a methodology be used here,

particularly since the mixed use categories are

distinguishable from single land use categories, such as

Indu strial and Commercial.

29. Moreover, the County has demonstrated a conscious

effort to separate these two types of land uses (industrial

and commercial) into separate and distinct categories, they

are depicted separately on the County's FLUM, and the Pl an has

separate locational criteria for the siting of these lands.

30. Based on the foregoing, it is found that the

County's analysis of the data was not flawed (or

professionally unacceptable) because it failed to include

undeveloped industrial lands i n the commercial inventory.

31. Petitioners next contend that the County erred in

its commercial inventory count by failing to include around 30

acres of vacant land located at Witham Field, a local airport.

Under the present zoning scheme at the airpo rt, only aviation -

related commercial uses are allowed, and thus the vacant land

cannot be used for any other commercial purpose. Further, the

airport is designated Institutional on the land use map,

rather than Industrial, and it would be inappropriate to count

vacant institutional lands in the commercial land inventory.

Therefore, the exclusion of the Witham Field land from the

commercial inventory did not render the County's analysis of

the data professionally unacceptable.

32. Finally, the remaining c ontentions by Petitioners

that the County understated its supply inventory for both

commercial and industrial property have been considered and

rejected.

33. In summary, it is found that the amendments are

based on relevant and appropriate data and anal yses, and that

the data was collected and applied in a professionally

acceptable manner.

f. The Blydenstein FLUM Amendment

34. Petitioners generally contend that there is no

demonstrated need for the Blydenstein parcel to be

redesignated as General Comme rcial, that the amendment is not

based upon data and analysis, that the County failed to

coordinate the land use with the availability of facilities

and services, that the amendment is inconsistent with

redevelopment and infill policies, and that the amend ment

encourages urban sprawl.

35. The Blydenstein amendment reclassifies 28 acres to

commercial use and will amount to 36 percent of the existing

commercial development in downtown Indiantown. In terms of

need, the County projects that only 17 acres of commercial

development will be needed in Indiantown through the year

2015, and there presently exist around 186 acres of

undeveloped commercial acreage in that community. At the same

time, Amendment 00 - 01 reflects a deficit of 112 acres of

commercial lan d in the County during the same time period.

Although the local and countywide demand calculations are

seemingly at odds, at least in the Indiantown area, there will

be a surplus of unused commercial lands through the end of the

current planning horizon, and thus there from that perspective

there is no need for an additional 28 acres of commercial

property in that locale.

36. Notwithstanding a lack of numerical need, that

consideration is not the sole factor in determining whether

the amendment should be approved. As noted earlier, in

addition to need, the County considers such factors as the

suitability of the property for change, locational criteria,

and community desires in making this determination. Here, the

subject property is suitable for commerci al development

because of its location on two major arterial roadways and its

ready access to a railroad and major waterway. Further, the

property is located within the Primary Urban Services

District, which is an area specifically designated for more

int ense, urban development. In addition, the current land use

designation allows 8 residential units per acre, which is an

"urban" type of designation. Finally, because there is

vacant, undeveloped property surrounding the subject property,

the redesignatio n of the property to General Commercial will

not pose a compatibility problem with any residential areas.

When these considerations are weighed with the need factor, it

is found that the proposed land use change is appropriate.

37. The existing land use designation of Mobile Home

Residential is a carryover land use designation which

recognized the mobile home use that occurred on the property

when the future land use maps were originally created. At the

present time, all mobile home use has ceased and t he property

is vacant. The nearest residential neighborhood is located to

the north across State Road 76 beyond the Canal and is at

least 600 feet away. Because of the property's configuration

and immediate proximity to major arterial roads, railroad

tra cks, and a canal, the greater weight of evidence shows that

it is not suitable for residential development. These

considerations support the County's determination that the

property has been inappropriately designated as residential

for more than a decade .

38. Although the County did not conduct formal studies

to determine whether the public facilities and services will

be capable of serving the proposed change in land use, a

general analysis of the availability and adequacy of public

facilities was per formed by its staff. That analysis reflects

that the property lies within the service area of a local

water and sewer utility and has access to two major roadways.

Based on its proximity to major roadways and local public

utilities, the County does not a nticipate that the change in

land use will adversely impact public facilities and services.

To ensure that this does not occur, the County will require a

traffic impact analysis at the time the parcel is submitted

for development review.

39. Rule 9J - 5.0 06(3)(b)8., Florida Administrative Code,

requires that a plan "[d]iscourage the proliferation of urban

sprawl." Leapfrog development is a form of urban sprawl and

typically means leaping over a lower density development and

placing higher density developm ent just beyond the lower

density development. Given the location of the Blydenstein

property within the Primary Urban Services District, and the

adjacent major arterial roads, railroad, and canal, the

greater weight of evidence supports a finding that th e

proposed land use change will not constitute leapfrog

development.

40. The change in land use will not promote, allow, or

designate urban development in radial, strip, isolated, or

ribbon patterns; it will not result in the premature or poorly

planned c onversion of rural land; it will not discourage or

inhibit infill or redevelopment of existing neighborhoods; it

will not result in poor accessibility among linked or related

land uses; and it will not result in a loss of significant

amounts of functional open space. In the absence of these

indicators, it is found that the amendment will not contribute

to urban sprawl.

g. The Seven J FLUM Amendment

41. Like the Blydenstein amendment, Petitioners likewise

contend that there is a lack of demonstrated need for the

Seven J amendment; that the amendment lacks data and analysis;

that the County failed to coordinate with the availability of

services; that the amendment will promote urban sprawl; and

that the amendment is internally inconsistent.

42. The Seven J property is surrounded by the partially

built - out West Jensen DRI, is located within the County's

Primary Urban Services District, and is considered to be in a

"regional hub" of activity, that is, within the core of major

commercial development in the n orthern part of the County.

Further, it is located on an eight - lane road at a major

intersection (U.S. Highway 1 and Westmoreland Boulevard).

Therefore, the change is compatible with surrounding existing

and planned commercial uses, and the County's rede signation of

the property from Medium Density Residential (8 units per

acre) to General Commercial is appropriate. Further, the

greater weight of evidence shows that because the property is

located within the Primary Urban Services District, is near

exist ing commercial and residential development, and urban

services are already provided, the Amendment will not

contribute to urban sprawl.

43. Finally, the greater weight of evidence supports a

finding that the amendment is internally consistent and based

on adequate data and analysis, contrary to Petitioners'

assertions.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

45. O'Connell (except as to Amendment 01 - 7), Melzer, and

Blydenstein reside, own property, or own or operate a business

within the County and submitted oral or written comments,

recommendations, or objections to the County during the

adoption process of the amendments. Thus, they are affected

persons within the meaning of Section 163.3184(1)(a), Florida

Statutes, and have standing to challenge the amendments.

46. It is concluded that MCCA and ECMC are "operating a

business" within the County by condu cting meetings and

participating in governmental decisions and are therefore

affected persons within the meaning of the law. See The

Sierra Club v. St. Johns County and Dep't of Comm. Affairs ,

DOAH Case No. 01 - 1851GM (DCA July 30, 2002); 1000 Friends of

F la., Inc. and Audubon Society of the Everglades, Inc. v.

Dep't of Comm. Affairs , DOAH Case No. 01 - 0781GM (DCA Dec. 28,

2001).

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

when the Department has rendered a notice of intent to find a

comprehe nsive plan provision to be in compliance, those

provisions "shall be determined to be in compliance if the

local government's determination is fairly debatable." Thus,

Petitioners must bear the burden of proving beyond fair debate

that the challenged amen dments are not in compliance. This

means that "if reasonable persons could differ as to its

propriety," a plan amendment must be upheld. Martin County v.

Yusem , 690 So. 2d 1288, 1295 (Fla. 1997).

48. The more persuasive evidence supports a conclusion

that Petitioners have failed to prove beyond a fair debate

that the three amendments are not in compliance.

49. Finally, Part VII of Ordinance No. 598 reads as

follows:

Special acts of the Florida Legislature

applicable only to incorporated areas of

M artin County, County ordinances and County

resolutions or parts thereof, and other

parts of the Martin County Comprehensive

Growth Management Plan in conflict with

this ordinance are hereby superceded by

this ordinance to the extent of such

conflict.

Peti tioners contend that this provision "is vague

concerning the legal effect and meaning of the amendments, and

about which parts of the Plan it supercedes," and that it is

inconsistent with the procedural requirements in Rule 9J -

5.005(8)(b) - (d), Florida Admi nistrative Code. However, the

provision is simply a part of the enacting Ordinance which

adopted the amendments and not a part of the plan amendments.

As such, it is not subject to a compliance review. Therefore,

assuming that Petitioners' fears are val id, a determination as

to the meaning or effect of this provision would have to be

made by a court of competent jurisdiction rather than by this

forum.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Community Affairs

enter a final order determining that Martin County Plan

Amendments 00 - 01, 01 - 07, and 97 - 4 are in compliance.

DONE AND ENTERED this 16th day of October, 2002, in

Tallahassee, Leon County, Florida.

__ _________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of October, 2002.

COPIES FURNISHED:

Steven M. Siebert, 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 325

Tallahassee, Florida 32399 - 2100

Richard J. Grosso, Esquire

Environmental and Land Use Center, Inc.

3305 College Avenue

Shepard Broad Law Center

Fort Lauderdale, Florida 33314 - 7721

Joan P. Wilcox, Esquire

2336 Southeast Ocean Boulevard, PMP 110

Stuart, Florida 34986

Colin M. Roopnarine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 21 00

David A. Acton, Esquire

Office of County Attorney

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3322

Johnathan A. Ferguson, Esquire

Ruden, McClosky, Smith, Shuster & Russell, P.A.

145 Northwest Central Park Plaza, Suite 200

Port St. Lucie, Flori da 34986 - 2482

Linda R. McCann, Esquire

Royal Palm Financial Center

789 South Federal Highway, Suite 310

Stuart, Florida 34994 - 2962

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.