04-004336GM City Of West Palm Beach, Seminole Improvement District, Callery-Judge Grove, L.P. And Nathaniel Roberts vs. Department Of Community Affairs And Palm Beach County Status: Closed Recommended Order on Monday, July 18, 2005.

Summary: The plan amendment is in compliance; and the term "economically feasible" means financially possible; less data and analyses are required for policy type amendments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF WEST PALM BEACH; )

SEMINOLE IMPROVEMENT DISTRICT; )

CALLERY - JUDGE GROVE, L.P.; )

NATHANIEL ROBERTS; INDIAN TRAIL )

IMPROVEMENT DISTRICT; and )

VILLAGE OF WELLINGTON, )

)

Petitioners, )

)

vs. ) Case Nos. 04 - 4336GM

) 04 - 4337GM

DEPARTMENT OF COMMUNITY ) 04 - 4650GM

AFFAIRS and PALM BEACH COUNTY, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, these matters were heard before the

Division of Admini strative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on April 11 - 14,

18 - 20, and May 26, 2005, in West Palm Beach, Florida.

APPEARANCES

For Petitioners: Terry E. Lewis, Esquire

(Case No. 04 - 4336) Robert P. Diffenderfe r, Esquire

Amy M. Dukes, Esquire

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard

Suite 1000

West Palm Beach, Florida 3340 1 - 2206

For Petitioner: Mark E. Grantham, Esquire

(Case No. 04 - 4337) Anthony D. Lehman, Esquire

Hunton & Williams, LLP

Bank of America Plaza, Suite 4100

600 Peachtree Stre et, Northeast

Atlanta, Georgia 30308 - 2216

For Petitioner: Claudio Riedi, Esquire

(Case No. 04 - 4650) Anthony J. O'Donnell, Jr., Esquire

Felippe Moncarz, Esquire

Lehtinen, Vargas & Riedi, P.A.

7700 North Kendall Drive, Suite 303

Miami, Florida 33156 - 7559

For Respondent: Leslie E. Bryson, Esquire

(Department) David L. Jordan, Esquire

Department of Community Affairs

2555 Shumard Oaks Boulevard

Tallahassee, Florida 32399 - 2100

For Respondent: Edward P. de la Parte, Jr., Esquire

(County) de la Parte & Gilbert, P.A.

Post Office Box 2350

Tampa, Florida 33601 - 2350

Amy Taylor Petrick, Esquire

Palm Beach County Attorney's Office

301 North Olive Avenue, Suite 601

West Palm Beach, Florida 33401 - 4705

STATEMENT OF THE ISSUE

The issue is whether the plan amendment adopted by

Ordinance No. 2004 - 026 on August 24, 2004, is in compliance.

PRELIMINARY STATEMENT

This matter began on Augus t 24, 2004, when Respondent,

Palm Beach County (County), adopted Ordinance No. 2004 - 026,

which added a new Objective 3.1 in the Future Land Use Element

(FLUE) of the County's Comprehensive Plan (Plan) and deleted

FLUE Policy 3.4 - c and Capital Improvement E lement (CIE) Policy

1.5 - c (Amendments). The purpose of the Amendments was to

"clarify water and wastewater service delivery policies" for

the Rural Tier and Rural Service Area of the County. On

October 29, 2004, Respondent, Department of Community Affair s

(Department), issued its Notice of Intent to Find Palm Beach

County Comprehensive Plan in Compliance (Notice).

On November 19, 2004, Petitioners, City of West Palm

Beach (City), Seminole Improvement District (SID), Callery -

Judge Grove, L.P. (Callery - Judg e), and Nathaniel Roberts

(Roberts), filed their Petition for an Administrative Hearing

to Challenge the Proposed Agency Action Determination that the

Amendments to the Palm Beach County Comprehensive Plan are in

Compliance, as Defined in Section 163.3184, Florida Statutes

(Petition). The Petition generally alleged that the

Amendments are internally inconsistent with other Plan

provisions; are inconsistent with the requirements of Chapter

163, Florida Statutes (2004), 1 Florida Administrative Code

Chapter 9J - 5, and the State and Regional Comprehensive Plans;

and are not supported by adequate data and analysis. This

Petition has been assigned Case No. 04 - 4336GM.

On November 19, 2004, Petitioner, Indian Trail

Improvement District (ITID), filed its Petition f or Formal

Administrative Hearing to Challenge the Proposed Agency

Determination that the Palm Beach County Comprehensive Plan

Amendment is in Compliance (Petition). Like the earlier

Petition, this Petition generally alleged that the Amendments

are interna lly inconsistent with other Plan provisions;

conflict with the requirements of Chapter 163, Florida

Statutes, Florida Administrative Code Chapter 9J - 5, and the

State and Regional Comprehensive Plans; are not supported by

adequate data and analysis; and eff ectively rescind a

legislative mandate that authorizes ITID to provide water

services within its boundaries. This Petition has been

assigned Case No. 04 - 4337GM.

The two Petitions were forwarded by the Department to the

Division of Administrative Hearings (DOAH) on December 6,

2004, with a request that an administrative law judge be

assigned to conduct a hearing.

On December 12, 2004, Petitioner, Village of Wellington

(Wellington), filed with the Department its Amended Petition

for Formal Administrative H earing (Amended Petition). (An

earlier petition had been dismissed, without prejudice, by the

Department.) In its Amended Petition, Wellington generally

alleged that the Amendments are inconsistent with the

requirements of Chapter 163, Florida Statutes, the State and

Regional Comprehensive Plans, and Florida Administrative Code

Chapter 9J - 5; are internally inconsistent with other

provisions within the Plan; are not supported by adequate data

and analysis; and promote urban sprawl. The Amended Petition

wa s forwarded by the Department to DOAH on December 29, 2004,

and was assigned Case No. 04 - 4650GM.

By Order dated January 3, 2005, the three cases were

consolidated. A Motion to Stay all cases pending the outcome

of a related circuit court action filed by P etitioners in Case

No. 04 - 4336GM was denied by Order dated March 7, 2005.

By Notice of Hearing dated December 17, 2004, the cases

were scheduled for a final hearing on February 15 - 17, 22, and

23, 2005, in West Palm Beach, Florida. On January 13, 2005,

Wel lington's unopposed Motion for Continuance was granted, and

the matters were rescheduled to April 11 - 14 and 18, 2005, at

the same location. Continued hearings were held on April 19

and 20 and May 26, 2005, at the same location.

At the final hearing, Petit ioners presented the testimony

of Terry L. Atherton, Assistant City Administrator; Ken

Reardon, City Director of Public Utilities and accepted as an

expert; Nathanial T. Roberts, General Manager of Callery - Judge

Grove, L.P. and District Manager of SID; Vic tor Tchelistcheff,

a consultant and accepted as an expert; Myra Orlando, a member

of the Board of Supervisors of the ITID; Penny A. Riccio,

president of the Board of Supervisors of ITID; Christopher

Karch, a professional engineer and member of the Board of

Supervisors of ITID; Isaac Hoyos, a County Principal Planner;

Lorenzo Aghemo, County Planning Director; Robert J. Ori, a

certified public accountant and accepted as an expert; Gary D.

Dernlan, the former Director of the County Water Utilities

Department; Dr. Ray Liberti, a City Commissioner and accepted

as an expert; William D. Reese, a consultant and accepted

as an expert; and Franklin P. Schofield, II, Director of

Community Services for Wellington and accepted as an expert.

Also, they offered Petitio ners' Exhibits 5, 5A, 7, 9, 10, 21 -

26, 28, 29, 32 - 34, 34 - 17A, 35, 37, 38, 40, 55, 72, 78N, 82,

83, 85, 86, 97, 98, 98B - 1, 98E - 1 through 4, 98M, 98R - 1 through

3, 107, 109, 110, 119, 134, 137, 139, 141, 156, 157a, 166,

167, 204B, 237, 238, 242 - 244, 265 - 281, 283 - 285, 292, 293, 297,

297A, and 319A. All were received except Exhibits 10, 40,

98M, 106, 107, 109, 110, 119, and 237. In addition, a ruling

was reserved on the admissibility of Exhibits 98E - 1 through

98E - 4, 141, and 156; those exhibits are hereby rece ived in

evidence. The County presented the testimony of Lorenzo

Aghemo, Planning Director and accepted as an expert; Gary D.

Dernlan, former director of the Water Utilities Department and

accepted as an expert; and Scott Harder, a consultant and

accepted as an expert. Also, it offered County Exhibits 1,

1A - D, 18, 22, 30, 52, 54 - 56, 59 - 61, 65, 72 - 74, 107 - 112, 170,

180, 182, 191, 196, 198, 268, 269, 303, 304, 307, 309, 311 -

313, 315 - 317, 321 - 330, 333, and 334. All exhibits were

received in evidence except E xhibits 318 and 319, on which a

ruling was reserved. Those exhibits are hereby received. The

Department presented the testimony of Roger A. Wilburn, a

principal planner and accepted as an expert. Also, it offered

Department Exhibits 1, 2, and 6 - 8, which are received in

evidence. In addition, the undersigned granted the County's

Request for Official Recognition of Chapters 57 - 1697, 67 - 1880,

70 - 861, and 2003 - 420, Laws of Florida; the Palm Beach County

Code of Ordinances relating to water, sewer, and sewag e

disposal; the Lee County Comprehensive Plan; the St. Johns

County Comprehensive Plan; and the Treasure Coast Regional

Policy Plan. The City's Request for Judicial [Official]

Recognition of Chapters 67 - 2169, 89 - 476, 89 - 479, 89 - 480, 90 -

461, and 96 - 477, La ws of Florida, which pertain to the City's

Beach Water Catchment Area, was also granted. Finally, SID's

opposed Request for Judicial [Official] Notice of Chapter

2005 - 238, Laws of Florida, filed on June 20, 2005 (or after

the final hearing), is hereby gra nted.

The Transcript of the hearing (twelve volumes) was filed

on May 31, 2005. By agreement of the parties, the time for

filing proposed findings of fact and conclusions of law was

extended to June 20, 2005. The filings were timely made, and

they have b een considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. The County's original Plan was adopted on August 31,

19 89, and became effective on September 11, 1989. In 2000,

the County amended its Plan by establishing a Managed Growth

Tier System, which includes five classifications of land

(Urban/ Suburban, Exurban, Rural, Agricultural Reserve, and

Glades), along with three classes of service areas within the

County to guide delivery of public services: Urban Area,

Limited Urban Service Area, and Rural Service Area (RSA). It

also assigned different levels of service for potable water

and wastewater for each service ar ea. At the same time, the

County amended its FLUE to add a new Policy 3.4 - c, which

provides as follows:

The County shall neither provide nor

subsidize the provision of centralized

potable water or sanitary sewer in the

Rural Service Area, unless urban lev els of

service are required to correct an existing

problem, prevent a projected public health

hazard or prevent significant environmental

degradation, or the areas meet the criteria

described in Future Land Use Policy 3.4.b.

2. The County intended Policy 3.4 - c to implement the

Managed Growth Tier System by limiting the provision of

centralized utility service in the Rural Tier. The effect of

this new policy was to prohibit the County from providing

urban levels of utility services outside its existing se rvice

area boundaries in the RSA unless necessary to correct or

prevent a public health hazard, existing problem related to

urban levels of service, or environmental degradation.

3. In February or March 2003, the County Planning

Department began assessi ng ways to address the problem of

overlapping utility service in the RSA. Shortly thereafter,

the Florida Legislature passed the Scripps Law (Chapter 2003 -

420, Laws of Florida), which took effect on November 3, 2003.

Both of these factors led to the deve lopment of the Amendments

in issue here. In late 2003, the County staff began the

actual development of new amendments to its Plan (also known

as Round 04 - 1 Plan Amendments) that would allow the County to

provide services into the RSA. More specifically, the staff

proposed to add a new FLUE Policy 3.1, which (as finally

drafted) read as follows:

The Palm Beach County Water Utilities

Department shall provide potable water,

reclaimed water and wastewater service to

all unincorporated areas of the County

exc ept those unincorporated areas where the

Palm Beach County Board of County

Commissioners has entered or enters into a

written agreement that provides utility

service area rights to a public or

privately owned potable water, reclaimed

water, and/or wastewat er utility, or in

areas where the Palm Beach County Water

Utilities Department is specifically

excluded from providing utility service by

Florida law. Palm Beach County Water

Utilities Department shall continue to

provide utility services to incorporated

areas where service is already being

provided by the County, or as provided for

under utility service area agreements or as

allowed for by law.

In general terms, the new policy designated the County as a

service provider of water and wastewater services f or

unincorporated areas of the County where the County has, or

will enter into, interlocal agreements except where excluded

by interlocal agreement or by law. The effect of the

amendment is to allow the County to extend potable water and

wastewater servic es to unincorporated areas of the County,

particularly "the western communities," where it currently

does not do so.

4. The County staff also proposed to delete FLUE Policy

3.4 - c, described in Finding of Fact 1, which was previously

adopted in 2000. Fi nally, the County staff proposed to delete

another policy adopted in 2000, CAI Policy 1.5 - c, which read

as follows:

Urban levels of service shall not be

provided by any governmental entity

(outside of its existing service area

boundary) within the Rural Se rvice Area of

the unincorporated area, except where:

(1) The Rural Service Area receives urban

services pursuant to Objective 1.1 in the

Element, or

(2) An urban level of service is required

to correct a demonstrated public health, or

(3) Development on a parcel in the Rural

Tier that is adjacent to water and/or sewer

lines which existed prior to the adoption

of the Comprehensive Plan in 1989 shall be

allowed to connect to those existing lines

and shall be allowed to connect to public

sewer and/or wat er when required by the

Public Health Department. This policy

shall not allow the extension of new water

and/or sewer lines into the Rural Tier to

serve development without first amending

the Service Area Map and the Future Land

Use Atlas to reflect a cha nge in the

service area boundary.

5. By deleting these two provisions, the County would no

longer be prevented from providing utility services in the RSA

unless certain conditions were met. (The staff also proposed

to delete FLUE Policy 1.4 - k, but that deletion is not in issue

in these proceedings.)

6. On January 14, 2004, the County initiated the

adoption process by transmitting Notice of the Amendments to

the Intergovernmental Plan and Amendment Review Committee

(IPARC), which is made up of all the lo cal governments and

special districts in the County, including the City,

Wellington, SID, and ITID. IPARC acts as a clearinghouse for

all comprehensive plan amendments prepared by the IPARC

members. IPARC in turn distributed the notice to its members,

in cluding the City, Wellington, SID, and ITID.

7. After a public hearing on March 12, 2004, before the

County's Local Planning Agency (known as the Land Use Advisory

Board), by an 11 - 0 vote it recommended denial of Round 04 - 1

Plan Amendments and recommende d that the County meet with the

affected parties to resolve problems voiced by various

attendees, including the City, SID, and ITID. On April 2,

2004, the County held a meeting with interested persons in an

attempt to resolve objections to the Amendments before they

were presented to the Board of County Commissioners. The

objections were not resolved.

8. On April 5, 2004, by a 5 - 0 vote, the Board of County

Commissioners approved transmittal of the Amendments to the

Department, other commenting agencies, and each unit of local

government or governmental agency that had filed a written

request for copies of the Amendments. The Amendments were

transmitted to the Department on April 15, 2004.

9. Between January 2004 and August 2004, the County held

at least 37 meetings with utilities and other interested

persons to discuss the Amendments, including three meetings

with the City, at least five meetings with SID, at least ten

meetings with ITID, and at least two meetings with Wellington.

In addition, the Count y invited all utilities to attend

meetings on April 28, 2004, at three locations to discuss

utility service area boundaries. These meetings were attended

by approximately 25 different utilities, including the City,

SID, ITID, and Wellington. As a result of these meetings, the

County prepared and distributed utility service area maps in

an attempt to demonstrate the necessity for better

coordination between utilities.

10. On May 21, 2004, the Treasure Coast Regional

Planning Council notified the County of no objection or

comments regarding the Amendments.

11. On June 19, 2004, the Department issued its

Objections, Recommendations, and Comments Report, which did

not identify any objections, recommendations, or comments with

respect to the Amendments.

1 2. On June 22, 2004, the South Florida Water Management

District (District) notified the Department of no objections

or comments regarding the Amendments.

13. After a public meeting on August 24, 2004, by a 5 - 1

vote, the Board of County Commissioners ado pted Ordinance No.

2004 - 26 enacting the Amendments, and they were transmitted to

the Department on September 14, 2004. On October 29, 2004,

the Department issued its Notice determining the Amendments

were in compliance.

14. On November 19, 2004, Petiti oners (except

Wellington) filed Petitions challenging the Amendments.

Wellington filed its Amended Petition on December 16, 2004.

B. The Parties and Their Standing

15. The City is a municipality and adjoining local

government of the County, operating it s own water and

wastewater utility system. The City owns the largest water

treatment plant in the County and has an extensive wastewater

treatment system, including partial ownership in the East

Central Regional Water Reclamation Facilty, the largest

wast ewater plant in the County. It owns property and

currently provides bulk service to entities located within the

unincorporated area of the County, including ITID. It

submitted written objections to the County during the adoption

process and has standing to bring this action.

16. SID is an independent special district created by

special act of the legislature in 1970. It lies within the

unincorporated area of the County and has the authority to

provide water and wastewater service within and without its

boundaries. At present, SID provides potable water service

within and without its boundaries, but only provides

wastewater service within its boundaries. SID owns property

in the unincorporated area and submitted objections to the

County during the adopt ion process. These facts establish

that SID has standing as an affected person to challenge the

Amendments.

17. Callery - Judge is a limited partnership, which owns

and operates citrus groves on property located within the

unincorporated area. It also sub mitted objections to the

County during the adoption process. Callery - Judge is an

affected person and has standing to participate in this

matter.

18. Mr. Roberts owns property in the unincorporated

area, including Callery - Judge, of which he is the General

Manager. He submitted objections to the Amendments during the

adoption process and is an affected person.

19. ITID is an independent special district created by

special act of the legislature in 1957. (In 2002, the

Legislature amended and reenacted ITI D's enabling

legislation.) In 1998, ITID began operating a water and

wastewater system within the unincorporated area. ITID does

not generate its own potable water or treat its wastewater.

It obtains bulk water from the City and SID and bulk

wastewater service from the City. ITID owns property within

the unincorporated area and submitted objections to the

amendment during the adoption process. As such, it is an

affected person within the meaning of the law.

20. Wellington is a municipality and adjoini ng local

government of the County and operates a utility providing

water and wastewater service within its boundaries and outside

to several developments. It also submitted objections to the

County during the adoption of the Amendments. Because

Wellingto n does not own property or operate a business within

the unincorporated area of the County, in order to demonstrate

standing, it must show that the Amendments will produce

substantial impacts on the increased need for publicly funded

infrastructure or subs tantial impacts on areas designated for

protection or special treatment within its jurisdiction. See

§ 163.3184(1)(a), Fla. Stat. Wellington bases its standing on

alleged increases in traffic and the use of parks within its

boundaries, which purportedly will occur as a result of the

Amendments. While Wellington could not give a precise amount

(in terms of dollars) of those impacts, the testimony of its

Director of Community Services established that the

availability of centralized water and sewer service s in the

areas adjoining Wellington will arguably lead to higher

density development patterns, which in turn will lead to an

increased need for publicly funded infrastructure. As such,

Wellington is an affected person and has standing to challenge

the Ame ndments.

21. The Department is the state planning agency charged

with responsibility for reviewing and approving comprehensive

plans and amendments.

22. The County is a political subdivision of the State

of Florida and is responsible for adopting a com prehensive

plan and amendments thereto, including the Amendments. The

County Water Utilities Department currently serves

approximately 425,000 people, making it the largest utility

provider in Palm Beach County and the third largest in the

State of Florid a.

C. The Current Plan

23. As noted above, the County initially adopted its

current Plan on August 31, 1989, by Ordinance No. 89 - 17. The

Plan has been amended numerous times since its initial

adoption. The original 1989 Plan and all subsequent

amendm ents up to the ones at issue in this proceeding have

been found in compliance by the Department.

24. The current Plan is made up of sixteen elements,

nine of which are mandatory, and seven of which are optional.

The parties have indicated that the Util ities Element, CIE,

Intergovernmental Coordination Element, and FLUE are relevant

to this controversy; therefore, a brief description of their

content and purpose is necessary.

25. The purpose of a Utilities Element is to provide

necessary public facili ties and services correlated to future

land uses. See § 163.3177(6)(c), Fla. Stat., and Fla. Admin.

Code R. 9J - 5.011. The existing Utilities Element contains

potable water, wastewater, drainage, and solid waste sub -

elements. The aquifer recharge sub - ele ment is found in the

Coastal Management Element. The Utilities Element and the

aquifer recharge sub - element of the Coastal Management Element

constitute the "general sanitary sewer, solid waste, drainage,

potable water, and natural groundwater aquifer rec harge

element" referenced in Section 163.3177(6)(c), Florida

Statutes, and Florida Administrative Code Rule 9J - 5.011. The

existing Utilities Element has been found in compliance with

applicable provisions of statute and rule.

26. Section 163.3177(3)(c) , Florida Statutes, and

Florida Administrative Code Rule 9J - 5.016 contain requirements

for the capital improvements element of a comprehensive plan.

The existing CIE complies with these requirements. Objective

1.7 and Policy 1.7 - a describe how the County implements the

CIE. Pursuant to these requirements, the CIE is updated

annually at the same time as the County budget.

27. Table 10 of the CIE reflects the water utilities

revenue and expenditures for the then current budget year and

five years into t he future. Table 10 was not updated when the

Amendments were adopted because any future changes to the

County's capital expenditures resulting from the Amendments

would be made through the annual budget update process.

28. The Intergovernmental Coordin ation Element contains

provisions encouraging coordination between the County and

adjoining municipalities and special districts in order to

more efficiently meet the needs of the County residents.

(There are more than 25 municipalities and special distri cts

within the County.) This Element has previously been found in

compliance with Section 163.3177(6)(h), Florida Statutes, and

Florida Administrative Code Rule 9J - 5.015.

29. One of the coordination tools identified in the

Intergovernmental Coordinatio n Element is the IPARC, described

in Finding of Fact 5, which acts as a clearinghouse for all

comprehensive plan amendments prepared by the IPARC members.

IPARC distributes notice of plan amendments to all members,

who then have the opportunity to provide comments regarding

the proposed action.

30. Section 163.3177(6)(a), Florida Statutes, and

Florida Administrative Code Rule 9J - 5.006 contain requirements

for the future land use element of a comprehensive plan,

including the future land use map (FLUM). According to the

Plan, the FLUE "is the nucleus of the . . . Plan" and "defines

the components of the community and the interrelationship

among them, integrating the complex relationships between land

use and all of the other elements of the Plan that add ress the

physical, social, and economic needs of the people who live,

work, and visit Palm Beach County." Both the existing FLUE

and the current FLUM have been found in compliance. The

Amendments do not alter the FLUM, but they do change FLUE

Policy 3.1 - c and delete FLUE Policy 3.4 - c.

31. As noted above, in 2000 the County adopted a Managed

Growth Tier System, which is a planning tool intended to

manage growth and protect varying lifestyles in the County.

The Managed Growth Tier System consists of fiv e categories or

tiers, which are described in Objective 1.1 of the Plan.

Objectives 1.2 through 1.6 govern development within the five

tiers. FLUE Table 2.1 - 1 establishes permitted densities for

each of the tiers.

32. The Amendments do not modify any Goals, Objectives,

or Policies governing the five tiers, with the exception of

FLUE Policy 1.4 - k. However, Petitioners have not challenged

the proposed deletion of FLUE Policy 1.4 - k and it is not one

of the Amendments at issue in this proceeding. Additio nally,

the Amendments will not alter the permitted densities for any

of the tiers.

33. Concurrency Management refers to the system adopted

in the CIE to ensure that infrastructure, which meets or

exceeds the established minimum level of service standard s, is

in place concurrent with development approval. According to

FLUE Policy 3.5 - a, development orders and permits shall not be

approved unless services and facilities meet or exceed the

minimum levels of service.

34. FLUE Objective 3.1 establishes th ree graduated

service areas in Palm Beach County -- the Urban, Limited Urban

Service, and Rural Service Areas. Each service area

corresponds to one or more of the five tiers. The minimum

levels of service required for each area are listed in FLUE

Table 3 .1 - 1.

35. According to FLUE Table 3.1 - 1, FLUE Policy 3.5 - a,

and Utilities Element Policies 1.2 - g and 1.3 - e, the minimum

levels of service in the RSA for potable water and sewage are

on - site wells and septic tanks, respectively. With the

exception of wa ter and sewer, the other minimum levels of

service are the same for all three service areas. The

Amendments do not alter the minimum levels of service for any

service area.

36. Through its planning expert, Wellington contended

that the Amendments will cause a de facto change to the

minimum levels of service. However, the extension of

centralized water and sewer service into the RSA does not

change the established minimum levels of service.

37. Petitioners also argue that the Amendments will

increase minimum levels of service in the RSA for traffic and

parks. However, the minimum levels established in FLUE Table

3.1 - 1 for all services and facilities, other than potable

water and sanitary service, are County - wide standards.

D. Reasons for Adopting the Plan Amendments

38. Policy 3.4 - c did not have its intended effect

because it prevented the County from providing service to the

Rural Tier. After 2000, repeated e fforts by the County to

negotiate the service areas of the numerous entities operating

utility services in the unincorporated area were unsuccessful.

Indeed, "there was not a willingness of many utility providers

to agree on anything." This created a lack of coordination

and planning as to the provision of services in the Rural

Tier.

39. The City, SID, and ITID each have utility service

areas which overlap the service area of other utility

providers. In particular, portions of the Acreage, a

community located in the central - western unincorporated area

of the County, fall under the claim ed utility jurisdiction of

SID, ITID, Cypress Grove Community Development District, and

the Village of Royal Palm Beach (Royal Palm Beach).

40. The City is also rapidly expanding service in the

unincorporated area by entering into bulk water service

agre ements with a number of utilities located in the Rural

Tier, including Royal Palm Beach, Seacoast Utilities

Authority, and ITID. The City intends further expansion of

bulk service in the Rural Tier, so as to increase utility

revenues. It views the Amendm ents as affecting its

substantial interests by potentially limiting these revenues.

41. Royal Palm Beach claims an exclusive utility service

area which overlaps the utility service areas claimed by SID

and ITID. Royal Palm Beach is located entirely wit hin the

legislative boundaries of ITID and claims all of ITID as its

service area.

42. The Amendments support the authority granted to the

County by the Scripps Law. That law gives the County the

exclusive right to provide water and wastewater service to the

Scripps Biomedical Research Facility and to construct utility

facilities within and without the boundaries of the Scripps

project. The enactment of the Scripps Law reinforced the need

for the Amendments, as the Scripps Biomedical Research

Facility will be located in the unincorporated area. Existing

FLUE Policy 3.4 - c is arguably inconsistent with the Scripps

Law because it prevents the County from providing utility

service in the RSA. Since the Scripps Law supersedes all

other contrary provisions of Florida Law, it logically follows

that FLUE Policy 3.4 - c should be repealed.

43. The Amendments are also supported by the provisions

of the County Code of Ordinances Sections 27 - 16 through 27 - 22,

which codify County ordinances that were adopted in the 1970s

and deal with utility service. These ordinances authorize the

County to designate a Control Area in the unincorporated area

and to require County approval of any water and wastewater

facilities constructed in these areas.

44. In summary, the Count y adopted the Amendments to

avoid service area disputes between utility providers such as

those described above, to prevent wasteful and duplicative

utility services, to implement the Legislature’s mandate

regarding the Scripps Biotechnology Park, to ensur e a

sufficient water supply to meet the reasonable development

needs of the unincorporated area, and to enforce the

provisions of the County Code of Ordinances.

E. Petitioners' Objections

a. Data and analysis

45. Petitioners contend that the only data and analyses

submitted by the County to support the Amendments are

contained in a rather brief County Staff Report (Petitioners'

Exhibit 5), and that no other documentation was actually

forwarded to the Department. They further contend that the

Amendment s must be based on demographic, economic, and fiscal

studies, and that none were utilized by the County. Because

of these omissions, they argue that the Amendments violate

relevant statute and rule provisions and are not in

compliance.

46. Section 163.31 77(8) and (10)(e), Florida Statutes,

and Florida Administrative Code Rule 9J - 5.005(2) require that

plan amendments be based on relevant and appropriate data and

analyses applicable to each element. In determining whether a

plan amendment complies with thi s requirement, the Department

reviews each amendment on a case - by - case basis. In doing so,

it does not require the same amount or type of data for all

plan amendments. See , e.g. , Zemel et al. v. Lee County et

al. , DOAH Case No. 90 - 7793 (DOAH Dec. 16, 1992, DCA June

22, 1993)(projections of aquifer thickness and transmissivity

do not require the same precision as calculating volume - to -

capacity ratios for levels of service on road segments); 1000

Friends of Florida et al. v. Department of Community Affa irs

et al. , DOAH Case No. 04 - 4492GM, 2005 WL 995004 at *15 (DOAH

April 28, 2005, DCA May 9, 2005)("a numeric analysis is not

necessary to justify industrial uses since they may be goal -

based and aspirational"). For example, if amendments merely

represent a policy or directional change and depend on future

activities and assessments ( i.e. , further analyses and

decision - making by the local government), the Department does

not require the degree of data and analyses that other

amendments require. (These amen dments have sometimes been

referred to as aspirational amendments. See Collier County v.

City of Naples et al. , DOAH Case No. 04 - 1048GM, 2004 WL

1909265 at *5 and *6 (DOAH Aug. 24, 2004, DCA Dec. 28, 2004)).

Conversely, amendments which are mandatory in nature, that is,

amendments which are required to be implemented by Chapter

163, Florida Statutes, or Florida Administrative Code Chapter

9J - 5, require more data and analyses. Thus, under Department

interpretations of the relevant statutory and rule provi sions,

if an amendment does not have an immediate impact on the

provision of services in the unincorporated area, is policy -

based, does not require any capital improvement expenditures

at the time the amendment is adopted, and simply represents a

direction al change in the County's long - term water utility

planning, it is similar to an aspirational amendment and can

be based on less data and analyses than might otherwise be

required.

47. Here, the County’s actual policy regarding utility

service areas will depend on future activities and

assessments. The Amendments do not require the County to take

any immediate action. The Amendments do not mandate that

existing utility customers in the RSA switch to the County.

The Amendments do not authorize any new d evelopment in the

Rural Tier, and any future development would have to be

approved by the Board of County Commissioners through the

normal development approval process. Therefore, the

Amendments are akin to an aspirational amendment and do not

require the degree of data and analyses that are required for

other amendments.

48. The County Staff Report identifies, albeit in brief

fashion, data and analyses in support of the Amendments. It

provides, among other things, that the Amendments are

necessary bec ause "[t]he lack of County participation as a

service provider has created a void in effective long - term

utility planning, resulting in duplicative service lines,

inefficient services in the RSA, overlapping utility

jurisdictions and, absence of some writt en agreements defining

service areas." The Staff Report further identifies the

County’s authority to provide service and the necessity for

the Amendments to allow the County to provide service to the

Biotechnology Research Park in northwest Palm Beach Cou nty.

49. In addition, a number of documents presented at

hearing provide data and analyses in support of the

Amendments. In considering these documents, the undersigned

notes that all data or analysis available and exis t ing at the

time of the ado p tion of the plan amen d ment may be relied upon

to su p port an amen d ment in a de novo pr o ceeding and may be

raised or discussed for the first time at the a d ministrative

hearing. Zemel, supra ; McSherry et al. v. Alachua County et

al. , DOAH Case No. 02 - 2676GM, 2004 WL 2368828 at *54 (DOAH

Oct. 18, 2004, DCA May 2, 2005); Melzer et al. v. Martin

County et al. , DOAH Case Nos. 02 - 1014GM and 02 - 1015GM, 2003 WL

2150756 at *33 (DOAH July 1, 2003, DCA Sept. 26, 2003 and Oct.

24, 2003). The District's Districtwide Water Su pply

Assessment identifies future potable water demands for various

utilities in the County. The District's Lower East Coast

Regional Water Supply Plan describes the available raw water

supply to meet future demands in the County. The District's

CUP - CERP (Consumptive Use Permit - Comprehensive Everglades

Restoration Plan) Guiding Principles lists interim water use

permitting guidelines, which indicate utilities may experience

problems obtaining permitted allocations beyond what is needed

to meet their 2005 demands. District Water Use Permit 50 -

00135 - W is the County's 20 - year water use permit, which

confirms that the County is the only utility in the

unincorporated area with a guaranteed, long - term potable water

allocation. The information contained in thes e documents

confirms the County's ability to act as the default water

utility provider in the unincorporated area.

50. The County Linking Land Use and Water Supply Plan,

Water and Wastewater Master Plan, Reclaimed Water Master Plan,

Raw Water Master Plan, 20 - Year Wastewater Collection System

Master Plan, and Projected Yearly Capital Expenditures each

provide data and analysis, which support the County's ability

to serve as the default utility provider in the unincorporated

area.

51. As a water managemen t district study, the District's

documents are professionally accepted sources, which

constitute appropriate data and analyses under Florida

Administrative Code Rule 9J - 5.005(2)(c). Similarly, the

County's reports constitute existing technical studies, wh ich

are also appropriate data and analysis.

52. Petitioners contend that the County was required to

collect new data and prepare a comparative analysis of the

County Water Utilities Department and other utility providers

in the unincorporated area. How ever, according to Florida

Administrative Code Rule 9J - 5.005(2)(b), local governments are

not required to collect new data in support of a plan

amendment. Further, neither Florida Administrative Code Rule

9J - 5.005(2) nor Section 163.3177, Florida Statutes , requires a

comparative analysis.

53. It is at least fairly debatable that the Amendments

are supported by relevant and adequate data and analyses.

b. Intergovernmental Coordination

54. Petitioners also contend that in order to comply

with the Intergov ernmental Coordination Element of the Plan,

the County must inventory and analyze the facilities and

services provided by other utility providers in the areas

affected by the Amendments. In other words, they contend that

without data and analysis relative to other providers, the

coordination function is incapable of being done and is

meaningless and renders the Amendments inconsistent with

Florida Administrative Code Rule 9J - 5.015. (That rule sets

forth in detail the data requirements upon which the eleme nt

in a local government's comprehensive plan must be based, and

the goal statements, specific objectives, and policies which

must be found in the element.)

55. Section 163.3177(6)(h), Florida Statutes, and

Florida Administrative Code Rule 9J - 5.015 set fo rth

requirements for the intergovernmental coordination element of

a comprehensive plan. The existing Intergovernmental

Coordination Element has been found to be in compliance. The

Amendments do not modify this element.

56. Although not required for p urposes of compliance,

the County followed intergovernmental coordination procedures

in the comprehensive plan when adopting the Amendments. The

Amendments were submitted to IPARC for review by member

governments prior to their consideration by the Board of

County Commissioners. The County met with other utility

providers and interested persons no less than 37 times to

discuss the Amendments. Further, Petitioners' own witnesses

concede that their representatives attended multiple meetings

with the County regarding the Amendments. Such efforts

demonstrate that the County substantively complied with the

Intergovernmental Coordination Element. Petitioners'

contention that these meetings were not conducted in good

faith has been rejected.

57. Petitioners i mplicitly suggest that

intergovernmental coordination means acquiescing to the

position of an objector. If this were true, adjacent local

governments would have veto power over the County's ability to

enact plan amendments, a result not contemplated by th e

statute. The intergovernmental coordination requirements of

Section 163.3177(6)(h), Florida Statutes, and Florida

Administrative Code Rule 9J - 5.015 do not require that local

governments resolve all disputes regarding a comprehensive

plan and its amendme nts to the satisfaction of all interested

persons, but only that the local government take into

consideration input from interested persons. See , e.g. ,

Department of Community Affairs et al. v. Lee County et al. ,

DOAH Case Nos. 89 - 1843GM and 90 - 7792GM, 19 90 WL 749359 (DOAH

Jan. 7, 1993, Admin. Comm. Feb. 10, 1994). The numerous

meetings held by the County demonstrate adequate consideration

of opposing views.

58. It is at least fairly debatable that the County

satisfied the intergovernmental coordination requirements of

Section 163.3177(6)(h), Florida Statutes.

c. Economic Feasibility/Comparative Analysis

59. Petitioners argue that the Amendments fail to comply

with Section 163.3177(2), Florida Statutes, which requires

that "the comprehensive plan shall be economically feasible."

Petitioners claim that in order to establish economic

feasibility, the County first should have conducted a

comparative economic analysis of the cost of utility service

in the unincorporated area by various existing and

hypothet ical service providers. However, this construction of

the statute is at odds with the Department's interpretation.

60. The Department does not interpret the economic

feasibility requirement of Section 163.3177(2), Florida

Statutes, as requiring such a co mparison. Instead, it

construes the statute as only requiring that a plan amendment

be realizable in financial terms, that is, that the local

government has the financial ability to achieve what is

specified in the amendment. See Resolution Trust Corp. v .

Department of Community Affairs et al. , DOAH Case No. 94 -

5182GM, 1995 WL 1052797 *6 (DOAH April 19, 1995, Admin. Comm.

Sept. 4, 1998)("Economic feasibility means plans should be

realizable in financial terms."). Compare Southwest Fla.

Water Mgmt. Distri ct et al. v. Charlotte County et al. , 774

So. 2d 903, 916 (Fla. 2d DCA 2001), where the Court

interpreted the use of the term "economically feasible" in a

proposed Basis of Review provision as meaning "financially

feasible or financially 'doable' . . . [an d the] financial

ability of a WUP applicant to institute reuse." The

Department's interpretation of the statute was not shown to be

unreasonable or clearly erroneous.

61. The evidence shows that the Amendments are

financially realizable. The County Wa ter Utilities Department

is one of the financially strongest utilities in the nation.

It has the highest municipal bond rating (AAA) granted by the

three major rating agencies. As of August 24, 2004, no other

utility in the State of Florida had achieved an AAA rating

from the three bond rating agencies, and the County Water

Utilities Department is among only a handful of utilities

nationwide to have achieved that status. Petitioners have

acknowledged that the County is a very strong utility from a

financ ial perspective. Given the County's strong financial

state, it is qualified and able to serve as the default

provider in the unincorporated area.

62. In summary, it is fairly debatable that the

Amendments are economically feasible as the term is used i n

Section 163.3177(2), Florida Statutes, because the County has

the financial ability to extend utility service to the

unincorporated area.

d. Urban sprawl

63. Wellington (but not the other Petitioners)

essentially contends that the Amendments will pro mote urban

sprawl because the County will now allow new urban services

(water and wastewater) into undeveloped areas thereby

resulting in urban development.

64. Florida Administrative Code Rule 9J - 5.006(5)

contains standards discouraging the proliferati on of urban

sprawl. Existing provisions in the Plan, including the

Managed Growth Tier System, prevent urban sprawl within the

County. Florida Administrative Code Rule 9J - 5.006(5)(k)

provides in part that "if a local government has in place a

comprehensi ve plan found in compliance, the Department shall

not find that plan amendment to be not in compliance on the

issue of discouraging urban sprawl solely because of

preexisting indicators if the amendment does not exacerbate

existing indicators of urban spra wl within the jurisdiction."

The Amendments do not affect existing growth management

provisions in the Plan and thus will not exacerbate urban

sprawl. Although not required, the amendment of FLUE Policy

1.4 - k, which Petitioners did not challenge, will al so have the

effect of maintaining the status quo with respect to urban

sprawl.

65. At the same time, the Amendments do not directly or

indirectly authorize new development and are only aspirational

in nature. Any extension of water and sewer lines into the

unincorporated area does not necessarily create urban sprawl

because development is not automatically authorized by these

activities. Even Wellington's planning expert concurred that

urban sprawl is not caused by the provision of utility

services, bu t by the Board of County Commissioners' approval

of development orders. It is at least fairly debatable that

the Amendments will not encourage urban sprawl in

contravention of the Plan. 2

e. Internal consistency

66. Petitioners next contend that the Am endments fail to

comply with Sections 163.3177(2), 163.3177(10)(a), and

163.3187(2), Florida Statutes, and Florida Administrative Code

Rule 9J - 5.005(5), which require that all elements of a

comprehensive plan be consistent with each other. In

addressing t his objection, only those inconsistencies

expressly alleged in their Petitions and Amended Petition will

be considered. See , e.g. , Heartland Environmental Council v.

Department of Community Affairs et al. , DOAH Case No. 94 -

2095GM, 1996 WL 1059751 at *19 ( DOAH Oct. 15, 1996; DCA Nov.

25, 1996).

i. Future Land Use Element

67. Petitioners first contend that the Amendments are

inconsistent with Goal 3, Objective 3.1, and Policies 3.1 - a

and 3.1 - b of the FLUE. These provisions require that the

County "define graduated service areas for directing services

to the County's diverse neighborhoods and communities in a

timely and cost - effective manner"; that the County establish

graduated service areas "to distinguish the levels and types

of services needed within a Tier, consistent with the

characteristics of the Tier," which include "the need to

provide cost effective services"; that the County establish

Urban, Limited Urban Service, and Rural Service Areas based on

several factors in Table 3.1.1, including "[t]he c ost and

feasibility of extending services"; and that the County review

minimum levels of service "during preparation of the

Evaluation and Appraisal Report [EAR] and the Comprehensive

Plan as amended." The latter provision also requires that

each service provider determine the maximum and available

capacity of their facilities and services for this review.

68. The first broad goal is implemented through the

County's existing Managed Growth Tier System and is not

affected by the identity of the utility p rovider. Also, the

Amendments do not alter the Managed Growth Tier System, nor do

they alter the existing minimum levels of service required for

the RSA.

69. Similarly, FLUE Objective 3.1 is not affected, as

the Amendments only have the potential to cha nge the utility

provider in certain areas, and not the level of service

provided within the RSA. Further, the Amendments do not

change the existing service area boundaries and established

service area definitions.

70. As to Policy 3.1 - a, the service ar eas have been

established and found in compliance and the Amendments do not

alter the service area designations or Table 3.1 - 1.

Therefore, they are not inconsistent with Policy 3.1 - a.

71. Finally, Policy 3.1 - b is not affected by the

Amendments because th e minimum levels of service are not

altered and the Amendments are not the product of an EAR.

ii. Capital Improvements Element – Table 10

72. Table 10 of the CIE describes water and sewer

revenues, operating revenues, federal/state grants, other

revenu es, bond/ loan proceeds, fund balances, total water and

sewer revenues, water and sewer operating expenditures, water

and sewer capital projects, annual surplus/deficit, and

cumulative surplus/deficit for fiscal years 2004 - 2009.

Petitioners contend that t he Amendments are inconsistent with

this provision because the Table has not been amended to

reflect the expenditures that will be made by the County as a

result of the Amendments.

73. This Table is not affected because the Amendments do

not require any changes to the County's capital expenditures.

If changes do occur as a result of the County's planned

extension of utility service into the unincorporated area, the

capital improvements associated with extension of service will

be addressed in subsequent annual updates of Table 10.

iii. Intergovernmental Coordination Element

74. Petitioners contend that the Amendments are

inconsistent with Goal 1 and Objective 1.1 of the

Intergovernmental Coordination Element, which require the

County to "provide a con tinuous coordination effort with all

affected governmental entities" and to "utilize existing

mechanisms to coordinate planning efforts with the plans of

school boards, other units of local government providing

services, adjacent municipalities, adjacent c ounties, the

region, the State, and residents of Palm Beach County."

Petitioners essentially claim that the Amendments were adopted

and transmitted without coordination with other local

governments, as required by the goal and policy. As explained

above, the evidence shows that the Amendments were submitted

to IPARC for review by each of the local governments and

special districts located in the County, these entities were

given ample opportunity to comment or object to the

Amendments, and the County util ized existing mechanisms to

coordinate planning efforts. Therefore, the Amendments are

consistent with these portions of the Intergovernmental

Coordination Element.

75. Petitioners also contend that the Amendments

conflict with Goal 4, Policy 4.1 - a, and Policy 4.1 - b of the

Intergovernmental Coordination Element. The broad goal

relates to coordination of "service provision to assure the

most effective and efficient service delivery for the

residents of Palm Beach County and its municipalities," while

the two policies require that the County coordinate with

special taxing districts and each municipality within the

County during "the concurrency management and development

review processes" and in defining the "ultimate boundaries of

that entity's sewer and water service areas."

76. The Amendments are consistent with the goal because

their purpose is to create more effective and efficient

service delivery by encouraging utility providers to enter

into agreements which establish exclusive service areas and

eliminate overlapping service areas.

77. For similar reasons, the Amendments are consistent

with Policy 4.1 - a because the County coordinated with each of

the special taxing districts through IPARC and numerous

subsequent meetings relating to the Amendme nts.

78. Finally, the main purpose of the Amendments is to

prevent overlapping utility service areas and to encourage

utility providers to enter into agreements defining service

areas. Therefore, they are not inconsistent with Policy 4.1 -

b.

iv. Treas ure Coast Regional Planning Council Plan

79. Petitioners next allege that the Amendments are

inconsistent with Goal 8.1, Regional Strategy 8.1.1, and

Regional Policies 8.1.1.3 and 8.1.1.4 of the Treasure Coast

Regional Planning Council's Regional Policy P lan (Regional

Policy Plan). In order for a plan amendment to be consistent

with a regional policy plan, Section 163.3177(10)(a), Florida

Statutes, requires that plan amendments be consistent with the

regional plan "as a whole," and that no specific goal o r

policy be "applied in isolation from the other goals and

policies in the plans." Because the Petitions and Amended

Petition do not allege that the Amendments are inconsistent

with the Regional Policy Plan as a whole, their challenge must

necessarily fai l. See , e.g. , 1000 Friends of Florida, Inc. ,

supra at *38 .

80. Even if a provision in the Regional Policy Plan

could be viewed in isolation, the Amendments are consistent

with Regional Goal Regional Goal 8.1, which requires "public

facilities which provi de a high quality of life." Nothing in

the Amendments would impair the provision of a high quality of

life. One of the purposes of the Amendment is to more

efficiently provide utility service by defining service areas

and improving the provision of servi ces.

81. Regional Strategy 8.1.1 relates to the provision of

"levels of public service necessary to achieve a high quality

of life cost - effectively." The Amendments are not

inconsistent with this strategy, as they are designed to help

the County implem ent the existing objectives and policies

relating to this strategy.

82. The purpose of Regional Policy 8.1.1.3 is to

"encourage patterns of development which minimize the public

cost of providing service, maximize use of existing service

systems and faci lities and take into full consideration

environmental/ physical limitations." As stated above, one

purpose of the Amendments is to provide more efficient and

cost - effective utility service by encouraging providers to

enter into agreements that prevent ove rlapping service areas

and avoid duplication of services.

83. Finally, the purpose of Regional Policy 8.1.1.4 is

to "develop local Capital Improvement Programs which maximize

development of existing systems before allocating funds to

support new public facilities in undeveloped areas." Because

the Amendments do not alter the County's Capital Improvement

Programs, they do not implicate this policy.

v. State Comprehensive Plan

84. Petitioners further allege that the Amendments are

inconsistent with tw o goals in the state comprehensive plan,

which are codified in Section 187.201, Florida Statutes. Like

regional policy plans, Section 163.3177(10)(a), Florida

Statutes, provides that for purposes of determining

consistency, the state plan is to be constru ed as a whole,

with no specific goal or policy applied in isolation from the

other goals and policies. If a plan appears to violate a

provision of the state plan, a balanced consideration must be

given to all other provisions of both the state and local p lan

to determine whether a local comprehensive plan is consistent

with the state plan. Petitioners have not alleged that the

Amendments are inconsistent with the state comprehensive plan

as a whole. Therefore, their challenge to the Amendments must

neces sarily fail. See 1000 Friends of Florida, Inc. , supra ;

Heartland Environmental Council, supra .

85. Assuming that a provision within the state

comprehensive plan can be viewed alone, Section

187.201(17)(a), Florida Statutes, provides that "Florida shall

p rotect the substantial investments in public facilities that

already exist and shall plan for and finance new facilities to

serve residents in a timely, orderly, and efficient manner."

Petitioners contend that because the Amendments fail to

protect the pu blic facilities that already exist in the

unincorporated area of the County, the Amendments conflict

with this goal. The Amendments are not inconsistent with this

goal because their purpose is to implement the Plan provisions

in a timely, orderly, and eff icient manner. Further, the

Amendments are consistent with the specific provisions of

Section 187.201(17)(b), Florida Statutes.

86. Petitioners also allege that the Amendments

contradict the requirements of Section 187.201(20)(a), Florida

Statutes, whi ch deals with cooperation between levels of

government, elimination of needless duplication, and promotion

of cooperation. Again, the purpose of the Amendments is to

eliminate duplication and promote cooperation between entities

by encouraging utility pro viders to enter into interlocal

agreements with the County that define exclusive service areas

and prevent duplication of services. Further, the Amendments

are consistent with the specific provisions of Section

187.201(20)(b), Florida Statutes.

f. Othe r Objections

87. Finally, any other contentions raised in the

Petitions and Amended Petition not specifically addressed

herein have been considered and found to be without merit.

CONCLUSIONS OF LAW

88. The Division of Administrative Hearings has

jurisdic tion over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3184(9),

Florida Statutes.

89. In order to have standing to challenge the

Amendments, Petitioners must be affected parties, as that term

is defined in S ection 163.3184(1)(a), Florida Statutes. The

City, ITID, SID, Callery - Judge, and Mr. Roberts each owns

property within the unincorporated area of the County and

submitted timely objections to the Amendments. Likewise,

Wellington qualifies as an affected party since it also

submitted timely objections to the Amendments and established

that the Amendments would arguably (at some future time)

produce substantial impacts on the increased need for publicly

funded infrastructure. As such, each Petitioner has s tanding

to challenge the Amendments.

90. Once the Department renders a notice of intent to

find a comprehensive plan provision to be in compliance, as it

did here, those provisions "shall be determined to be in

compliance if the local government's determi nation is fairly

debatable." Therefore, Petitioners bear the burden of proving

beyond fair debate that the challenged amendments are not in

compliance. This means that "if reasonable persons could

differ as to its propriety," a plan amendment must be uph eld.

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

Or, as another court has stated, where there is "evidence in

support of both sides of a comprehensive plan amendment, it is

difficult to determine that the County's decision was anything

but 'fairly debatable.'" Martin County v. Section 28

Partnership, Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA 2000).

91. In the context of the challenges here, to be "in

compliance," a plan amendment must be consistent with the

requirements of Sections 163.31 77, 163.31776, 163.3178,

163.3180, and 163.3245, Florida Statutes, the state

comprehensive plan, the appropriate strategic regional policy

plan, and Florida Administrative Code Chapter 9J - 5.

92. For the reasons given in the Findings of Fact,

Petitioner s have failed to establish beyond fair debate that

the Amendments are not supported by adequate data and

analyses, that they are internally inconsistent with other

Plan provisions, that they conflict with relevant provisions

of Chapter 163, Florida Statute s, that they encourage urban

sprawl, and that they are inconsistent with the strategic

regional policy plan, the state comprehensive plan, or Florida

Administrative Code Chapter 9J - 5, as alleged in their

Petitions and Amended Petition. While many of the a rguments

raised by Petitioners are plausible and supported by some

evidence, there is also evidence showing that the Department's

determination that the Amendments are in compliance was

appropriate and correct. Therefore, because reasonable

persons can di sagree over the propriety of the Amendments,

Yusum , supra , and there is evidence on "both sides of [the]

comprehensive plan amendment[s], it is difficult to determine

that the County's decision was anything but 'fairly

debatable.'" Martin County , supra .

R ECOMMENDATION

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 the Amendments adopted by

Ordinance No. 2004 - 026 on August 24, 2004, are in compli ance.

DONE AND ENTERED this 18th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July, 2005.

ENDNOTES

1/ All future references are to Florida Statutes (2004).

2/ Wellington also relies on the cases of Starr et al. v.

Dept. of Community Affairs et al. , DOAH Case Nos. 98 - 0449GM,

98 - 0701GM, 98 - 0702GM, and 98 - 0704GM, 2000 WL 248379 (DOAH Feb.

11, 2000, DCA May 16, 2000), as supporting its conten tion that

the extension of utility services into the undeveloped areas

will encourage urban sprawl. In Starr , the local government

(Charlotte County) had adopted a plan amendment that required

it to provide centralized water and sewer services to a chain

of barrier islands just offshore. The administrative law judge

found the plan amendment not in compliance because the

mandatory centralized water connection policies were internally

inconsistent with plan provisions tending to discourage urban

sprawl. Id . at *54. In its Final Order, however, the

Department rejected those findings (and the attendant

conclusion regarding urban sprawl) and determined the amendment

to be in compliance.

COPIES FURNISHED:

Thaddeus Cohen, Secretary

Department of Community A ffairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Mark E. Grantham, Esquire

Hunton & Williams, LLP

Bank of America Plaza, Suite 4100

600 Peachtree Street, Northeast

Atlanta, Georgia 30308 - 2216

Robert Diffenderfer, Esquire

Lew is, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard

Suite 1000

West Palm Beach, Florida 33401 - 2206

Claudio Riedi, Esquire

Lehtinen, Vargas & Riedi, P.A.

7700 North Kendall Drive, Suite 303

Miami, Florida 33156 - 7559

Leslie E. Bryson, Esquire

Dep artment of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Amy Taylor Petrick, Esquire

Palm Beach County Attorney's Office

301 North Olive Avenue, Suite 601

West Palm Beach, Florida 33401 - 4705

Edward de la Parte, Jr., Esqui re

De la Parte & Gilbert, P.A.

Post Office Box 2350

Tampa, Florida 33601 - 2350

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

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.