07-005422GM The Jensen Beach Group, Inc.; Anthony J. Parkinson, Michael Cilurso; Cindy And David Bulk; Camden Griffin, Glenda Burgess; Joseph Burgess; Thomas Fullman; Marguerite Hess; Henry Copeland; And Jacqueline Trancynger vs. Martin County And Department Of Community Affairs Status: Closed Recommended Order on Friday, July 18, 2008.

Summary: Petitioners did not prove beyond fair debate that Future Land Use Map change was inconsistent with affordable housing requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE JENSEN BEACH GROUP, INC.; )

ANTHONY J. PARKINSON, MICHAEL )

CILURSO; CINDY AND DAVID BULK; )

CAMDEN GRIFFIN, GLENDA BURGESS; )

JOSEPH BURGESS; THOMAS FULLMAN; )

MARGUERITE HESS; HENRY )

COPELAND; and JACQUELINE )

TRANCYNGER, )

)

Petitioners, )

)

vs. ) Case No. 07-5422GM

)

MARTIN COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, )

)

)

Respondents, )

)

and )

)

REILY ENTERPRISES, LLC, WILLIAM REILY and NANCY REILY, )

)

)

Intervenors. )

)

RECOMMENDED ORDER

On May 13-15, 2008, a final administrative hearing was held

in this case in Stuart, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Virginia P. Sherlock, Esquire

Howard K. Heims, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995-1197

For Respondent, Martin County:

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996-3322

For Respondent, Department of Community Affairs:

Samuel Dean Bunton, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Intervenors: Tim B. Wright, Esquire

Wright, Ponsoldt & Lozeau

1002 Southeast Monterey Commons Boulevard

Suite 100

Stuart, Florida 34996-3340

STATEMENT OF THE ISSUE

The issue in this case is whether Amendment 06-19 to the

Martin County Comprehensive Plan (the Plan), adopted by Ordinance

757 on August 7, 2007, is "in compliance," as defined in Section

163.3184(1)(b), Florida Statutes (2007) 1 .

PRELIMINARY STATEMENT

The Petition for Administrative Hearing (Petition) in this

case was filed on October 24, 2007. On November 29, 2007, the

Department of Community Affairs (Department or DCA) referred the

petition to the Division of Administrative Hearings (DOAH), which

assigned Case No. 07-5422GM. The unopposed interventions by

Reily Enterprises, LLC, William Reily, and Nancy Reily were

granted on February 8, 2008. The final hearing was held in

Stuart on May 13 through 15, 2008.

At the final hearing, the following witnesses were called:

Richard Lawton, a Planner II with Martin County; Nicki van Vonno,

Martin County's Growth Management Director; Bob Dennis, the

Department's Regional Planning Administrator; Don Cuozzo of the

Houston Cuozzo Group, a consulting planner for the Intervenors;

Intervenor, William Reily, an owner of the property in question

and a principal in Intervenor, Reily Enterprises, LLC; Terry

Hess, a Regional Planner and Deputy Directory with the Treasure

Coast Regional Planning Council (the RPC); Anthony Parkinson;

Michael Cilurso, individually and as president of the Jensen

Beach Group; Cindy Bulk, individually and as Secretary of the

Jensen Beach Group; David Bulk; Camden Griffin; Glenda Burgess;

Thomas Fullman; Marguerite Hess; Henry Copeland; and Jacqueline

Trancynger.

At the final hearing, the following exhibits were admitted

in evidence: County Exhibits 1-6 and 8-13; DCA Exhibits 1-4;

Intervenors' Exhibits 12b, 24, 31, 52, 65A-J, and 66A-J; and

Petitioners' Exhibits 2-5, 23-26, 29, 30, and 34. In addition,

the objection to Petitioners Exhibit 28 is overruled, and it also

is admitted in evidence.

After presentation of evidence, no transcript was prepared,

and the parties requested until May 30, 2008, to file proposed

recommended orders (PROs), which was granted. The timely PROs

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Future Land Use Map (FLUM) Amendment 06-19 to the Plan

changes the future land use on 13.7 acres in Jensen Beach,

Florida, known as Pitchford's Landing, from Mobile Home to Low

Density Residential.

2. The County's Mobile Home future land use designation

allows mobile home sites up to a maximum of eight units per acre.

The County's Low Density Residential future land use designation

allows single family residences--including Class A manufactured

single-family mobile homes--up to a maximum of five units per

acre. The Plan defines Class A manufactured single-family homes

as mobile homes built after June 15, 1976, and meeting certain

federal standards. As a result of the FLUM Amendment, the future

land use no longer would allow mobile homes built before June 15,

1976, or not meeting the federal standards.

The Petitioners' Challenge

3. The Petitioners contend that the FLUM Amendment is not

in compliance because it is not based on adequate data and

analysis as required by Section, 163.3177(8), Florida Statutes,

and Florida Administrative Code Rule 2 9J-5.005(2)(a), and because

it is not internally consistent with goals, objectives, and

policies of the Plan with respect to providing adequate sites for

mobile homes and affordable housing for low and moderate income

residents as required by Section 163.3177(2), Florida Statutes,

and Rule 9J-5.005(5).

4. The Petitioners further contend the amendment is

inconsistent with requirements of the Plan, the State

Comprehensive Plan, and Rule Chapter 9J-5 related to affordable

housing, concurrency, and water supplies.

Pertinent Plan Provisions

5. The Housing Element of the Plan acknowledges that the

State Comprehensive Plan includes goals and policies "aimed at

increasing Florida's affordable housing supply." Plan Section

6.1.A.

6. The following goals, objectives, and policies are set

out in the Housing Element:

Section 6.4.A. Goal. The provision of a

safe, diverse and affordable housing stock

which is adequate to serve the needs of

current and future populations of Martin

County consistent with the desired

development character of the County as set

forth in Martin County's Comprehensive Growth

Management Plan.

Section 6.4.A.2.d.(2). Policy. Principles

for Conservation and Rehabilitation

Activities. The following principles shall

guide the development of any housing

conservation and/or rehabilitation activities

. . . Avoid the closure or abandonment of

housing and the displacement of occupants,

except where the safety of the occupants

would be in question.

Section 6.4.A.5. Objective. The County

shall continue to provide adequate sites for

housing for very low, low and moderate income

households which currently reside and are

projected to reside in unincorporated Martin

County.

Section 6.4.A.6. Objective. Martin County

shall continue to provide adequate sites for

mobile and manufactured housing.

a. Policy: Adequate sites for mobile and

manufactured homes. Martin County shall

permit the placement of mobile homes in

mobile home parks and subdivisions consistent

with the criteria and guidelines established

in section 4.4.M.1(d)(6) of the Future Land

Use Element of the Comprehensive Growth 3

Management Plan.

Section 6.4.A.9.a. Policy: Plan for a broad

mix of housing opportunities. Encourage the

provision of varied housing types, sizes and

prices consistent with the local need,

including very low, low and moderate priced

housing.

7. The Future Land Use Element of the County's Plan

contains the following goals, objectives, and policies:

Section 4.4.A.3. Objective. Martin County

shall establish a "concurrency management

system" which will establish the procedures

and/or process that the county government

will utilize to assure that no development

orders or permits will be issued which result

in a reduction of the adopted level of

service standards of this Growth Management

Plan at the time that the impact of

development occurs.

e. Policy: All requests for amendments to

the future land use maps shall include a

general analysis of the availability and

adequacy of public facilities and the level

of services required for public facilities

the proposed land uses . . . . Compliance

with this provision is in addition to, and

not in lieu of, compliance with the

provisions of Martin County's Concurrency

Management System . . . .

f. Policy: The maintenance of internal

consistency among all elements of the plan

shall be a prime consideration in evaluating

all requests for amendments to any elements

of the plan . . .

Section 4.4.I. Goal (residential land use):

Martin County shall provide for appropriate

and adequate lands for residential land uses

to meet the housing needs of the anticipated

population and provide residents with a

variety of choices in housing types and

living arrangements throughout the county.

Section 4.4.I.2.a.(1). Residential zoning classifications shall, at a minimum, be

designed for single-family, multifamily, and

mobile home and manufactured housing

development to meet the housing needs

demonstrated in the Housing Element (Chapter

6) of this Growth Management Plan.

Section 4.4.M.1.f. Policies (Residential

development). The Land Use Map allocates

residential density based on population

trends; housing needs; past trends in the

character, magnitude, and distribution of

residential land consumption patterns; and,

pursuant to goals, objectives and policies of

the Comprehensive Growth Management Plan,

including the need to provide and maintain

quality residential environments, preserve

unique land and water resources and plan for

fiscal conservancy.

(6) Mobile and Manufactured Single-Family,

Class A home development. Mobile homes and

manufactured homes, Class A, residential

development shall be permitted consistent

with State Rules and statutory provisions

including F.S. §§ 320.823, 553.38(2). Mobile

homes which do not meet the standard for

manufactured housing, Class A, as defined in

this Element shall be permitted only on sites

appropriately zoned for mobile home

development.

Adequate Mobile Homes Sites

8. The FLUM Amendment reduces the amount of land available

for mobile homes that are not Class A manufactured single-family

homes. It also reduces the density of Class A manufactured

single-family homes allowed on the Pitchford's Landing site to

five from eight units per acre. However, the Petitioners failed

to prove beyond fair debate that the FLUM Amendment is internally

inconsistent with Plan provisions requiring adequate sites for

mobile homes, or for affordable housing for very low, low, and

moderate income residents. The Petitioners also failed to prove

beyond fair debate that, as a result of the FLUM Amendment, the

Plan fails to provide adequate sites for mobile homes, or for

affordable housing for very low, low, and moderate income

residents.

Data and Analysis

9. The data and analysis supporting the FLUM Amendment

included the existence of 89 acres of land in Martin County that

is designated Mobile Home but is vacant. (There also is a large

amount of vacant land designated Low Density Residential that can

be used for Class A manufactured homes.)

10. There was evidence that the amount of vacant land

designated Mobile Home has decreased from the 187 acres reported

to exist in January 2003. Some of that decrease was the result

of conversions to other future land uses. It is not clear from

the evidence what part of the decrease might have been from the

use of formerly vacant land.

11. As a result of the real estate boom in 2001-2005,

Martin County began to experience the conversions of mobile home

parks to more expensive (and more profitable) housing. In

addition, the general increase in real estate prices also

increased the cost of the more affordable housing that did not

convert. As a result of concerns about those developments,

Martin County began investigating and developing a strategy to

continue to meet its requirements for affordable and workforce

housing. One possible strategy under consideration was a "no net

loss" of land zoned Mobile Home Park.

12. As part of this effort, on June 5, 2007, Martin County

adopted Ordinance 751, which imposed an interim moratorium for

the month of September 2007 on private applications to convert

Mobile Home to any other future land use categories. Ordinance

751 also imposed an 18-month moratorium on rezoning of land

designated for Mobile Home future land use.

13. By its terms, Ordinance 751 does not prohibit the FLUM

Amendment in this case.

14. The data and analysis supporting the FLUM Amendment

included the proximity of the Pitchford's Landing site to the

coastal high hazard area (CHHA). It is to the west and just

across Indian River Drive from a narrow strip of land along the

Indian River, which is in the CHHA. Although the evidence was

that there has not been significant damage to the site itself

from recent storms, the eastern half of the site is in the

Category 3 and Category 5 "storm surge zones."

15. The data and analysis supporting the FLUM Amendment

included the compatibility of Low Density Residential future land

use with the surrounding uses. The narrow strip along the Indian

River to the east of the Pitchford's Landing site across Indian

River Drive is designated Commercial Limited, as is the property

to the north of the eastern half of the site. The property to

the south of the eastern half of the site is designated Mobile

Home but is actually under development as a "mixed use" planned

unit development within the Jensen Beach Community Redevelopment

Area. The property to the north and west of the western half of

the site is designated Low Density Residential, while the

property to the south of the western half is designated Mobile

but actually is undeveloped and covered with trees and other

vegetation.

16. The data and analysis supporting the FLUM Amendment

included the opinions of planning experts that Low Density

Residential future land use is more appropriate than Mobile Home

future land use for the Pitchford's Landing site.

17. The data and analysis supporting the FLUM Amendment

included the existence of potable water service with sufficient

capacity for the Pitchford's Landing site provided by the Martin

County Utilities and Solid Waste Department.

18. The data and analysis supporting the FLUM Amendment

included the existence of sanitary sewer lines with sufficient

capacity in the public right-of-way immediately adjacent to the

Pitchford's Landing site that can be easily accessed for sanitary

sewer service provided by the Martin County Utilities and Solid

Waste Department.

19. The data and analysis supporting the FLUM Amendment

included the existence of other public services with sufficient

capacity, such as fire protection, hospitals, parks and

recreational facilities, and schools.

20. The data and analysis supporting the FLUM Amendment

included the absence of wetlands or other environmentally

sensitive areas on it, according to the Martin County Soil Survey

and photographs of the site, as well as the absence of any rare,

endangered, or threatened species of animals or plants.

21. Several Petitioners expressed a concern about the lack

of data and analysis on the impact of the FLUM Amendment on the

surficial aquifer they use for potable water. Specifically,

their concern is that the FLUM Amendment will decrease aquifer

recharge on the Pitchford's Landing site and increase its use of

the aquifer for lawn irrigation. However, there was no evidence

tending to prove how converting the future land use designation

from Mobile Home (at up to eight units per acre) to Low Density

Residential (at up to five units per acre) would have such an

impact. To the contrary, there was evidence that there are

existing permits from the South Florida Water Management District

to use a fixed amount of water from the surficial aquifer for

lawn irrigation on the Pitchford's Landing site. There was no

evidence that more water would be required by a conversion of the

future land use from Mobile Home to Low Density Residential. If

more water is required, any increase in the use of the water from

the surficial aquifer would have to be permitted by SFWMD.

22. The Petitioners failed to prove beyond fair debate that

the FLUM Amendment is not supported by data and analysis.

State Comprehensive Plan

23. Petitioners contend that the FLUM Amendment is

inconsistent with the following parts of the State Comprehensive

Plan:

(7) WATER RESOURCES

(a) Goal.-- Florida shall assure the

availability of an adequate supply of water

for all competing uses deemed reasonable and

beneficial and shall maintain the functions

of natural systems and the overall present

level of surface and ground water quality . .

. .

(b) Policies

1. Ensure the safety and quality of

drinking water supplies and promote the

development of reverse osmosis and

desalinization technologies for developing

water supplies.

2. Identify and protect the functions of

water recharge areas and provide incentives

for their conservation.

* * *

5. Ensure that new development is

compatible with existing local and regional

water supplies.

* * *

9. Protect aquifers from depletion and

contamination through appropriate regulatory

programs and through incentives.

10. Protect surface and groundwater

quality and quantity in this state.

* * *

§ 187.201(7), Fla. Stat.

24. The evidence did not prove that the FLUM Amendment is

inconsistent with any of those provisions or that, as a result of

the FLUM Amendment, the Plan as a whole is inconsistent with the

State Comprehensive Plan.

Standing

25. All of the individual Petitioners reside in or own

property in Martin County and submitted oral or written comments,

recommendations, or objections to the County regarding the FLUM

Amendment between the transmittal hearing (April 11, 2007) and

the adoption hearing (August 7, 2007).

26. The Jensen Beach Group (JBG) consists of three

individuals, two of whom were individual Petitioners. JBG was

incorporated not-for-profit in May 2006 for the purposes of

preserving and protecting "the quality of life for Jensen Beach,

Florida, and Martin County residents through education and

awareness" regarding development projects in Jensen Beach and

Martin County, and of raising funds for that purpose "as well as

any and all lawful business." It also advocates interests

related to maintaining the character of Martin County and Jensen

Beach and quality of life for Jensen Beach residents before

County commissions and boards.

27. There was no evidence that JBG owns property in Martin

County.

28. The Intervenors own the property subject to the FLUM

Amendment (and other property in Martin County) and have

consistently recommended adoption of the FLUM Amendment.

CONCLUSIONS OF LAW

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

when the Department has given notice of intent to find a

comprehensive plan amendment to be "in compliance," "any affected

person" can petition for an administrative hearing to challenge

the decision.

Standing

30. Section 163.3184(1)(a), Florida Statutes, defines

"affected person" to include:

the affected local government; persons owning

property, residing, or owning or operating a

business within the boundaries of the local

government whose plan is the subject of the

review; owners of real property abutting real

property that is the subject of a proposed

change to a future land use map; and

adjoining local governments that can

demonstrate that the plan or plan amendment

will produce substantial impacts on the

increased need for publicly funded

infrastructure or substantial impacts on

areas designated for protection or special

treatment within their jurisdiction. Each

person, other than an adjoining local

government, in order to qualify under this

definition, shall also have submitted oral or

written comments, recommendations, or

objections to the local government during the

period of time beginning with the transmittal

hearing for the plan or plan amendment and

ending with the adoption of the plan or plan

amendment.

31. In this case, all of the parties are "affected persons"

and have standing as parties.

Burden and Standard of Proof

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

when the Department has given notice of intent to find a

comprehensive plan amendment to be "in compliance," those

provisions "shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

Since the Department gave such notice as to the FLUM Amendment at

issue in this case, the Petitioners bear the burden of proving

beyond fair debate that the FLUM Amendment is not "in

compliance." See Young v. Department of Community Affairs , 625

So. 2d 831, 833-835 (Fla. 1993).

33. In recognition of the local nature of legislative land

use decisions, the Florida Supreme Court has held that an

amendment subject to the "fairly debatable" standard must be

upheld "if reasonable persons could differ as to its propriety."

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

also B & H Travel Corp. v. Department of Community Affairs , 602

So. 2d 1362 (Fla. 1st DCA 1992), appeal dismissed and rev.

denied , 613 So. 2d 1 (Fla. 1992). In effect, the "fairly

debatable" standard defers not only to the County's

determination, but also to the Department's determination that

the FLUM Amendment is “in compliance.”

Compliance Criteria

34. Section 163.3184(1)(b), Florida Statutes, defines "in

compliance" as:

Consistent with the requirements of ss.

163.3177, 163.31776 when a local government

adopts an educational facilities element,

163.3178, 163.3180, 163.3191, and 163.3245,

with the state comprehensive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J-5, Florida Administrative

Code, where such rule is not inconsistent

with this part and with the principles for

guiding development in designated areas of

critical state concern and with part III of

chapter 369, where applicable.

Out of these compliance criteria, only Section 163.3177, Florida

Statutes, and Florida Administrative Code Rule Chapter 9J-5 are

pertinent to this case.

Internal Consistency

35. Section 163.3177(2), Florida Statutes, provides that

the several elements of a comprehensive plan must be coordinated

and consistent. Any amendment to the FLUM must be internally

consistent with the other elements of the comprehensive plan.

See Coastal Development of North Fla., Inc. v. City of

Jacksonville , 788 So. 2d 204, 208 (Fla. 2001).

36. Petitioners failed to prove to the exclusion of fair

debate that the FLUM Amendment is inconsistent or not coordinated

with the several elements of the County's Plan.

Data and Analysis

37. The requirement for data and analysis to support a

comprehensive plan and plan amendments is set forth in Florida

Administrative Code Rule 9J-5.005(2)(a):

All goals, policies, standards, findings and

conclusions within the comprehensive plan and

its support documents, and within plan

amendments and their support documents, shall

be based upon relevant and appropriate data

and analyses applicable to each element. To

be based on data means to react to it in an

appropriate way and to the extent necessary

indicated by the data available on that

particular subject at the time of adoption of

the plan or plan amendment at issue.

38. This rule requires only that data exist at the time the

plan amendment is adopted. It does not even require that such

data be submitted by the local government to the Department. In

a de novo proceeding such as this one, the question is not

whether the local government submitted sufficient data and

analysis to the Department, but rather whether the data in

existence at the time of adoption support the plan amendment. If

the data existed at the time of adoption, analysis of that data

may be made at the compliance hearing. Zemel, et al., v. Lee

County and Dept. of Community Affairs , DOAH CASE NO. 90-7793GM,

1992 Fla. Div. Adm. Hear. LEXIS 5927, at *71-76 (DCA June 22,

1993), aff’d , 642 So. 2d 1367 (Fla. 1st DCA 1994).

39. The Petitioners failed to prove to the exclusion of

fair debate that the FLUM Amendment is not based on data and

analysis.

State Comprehensive Plan

40. The State Comprehensive Plan establishes general goals

and policy rather than the type of minimum criteria that are set

forth in Chapter 9J-5. Many of the provisions of the State

Comprehensive Plan apply to the State of Florida and its agencies

in planning on the state level, as opposed to local governments.

As a consequence, before a comprehensive plan amendment can be

found inconsistent with the State Comprehensive Plan, careful

consideration has to be given to the entirety of the more general

plan, as well as to entirety of the local comprehensive plan.

See § 163.3177(10)(a), Fla. Stat. (State Comprehensive Plan

"shall be construed as a whole and no specific goal and policy

shall be construed or applied in isolation from the other goals

and policies in the plans.")

41. Section 163.3177(10)(a), Florida Statutes, also states:

"[F]or the purpose of determining whether local comprehensive

plans are consistent with the state comprehensive plan and the

appropriate regional policy plan, a local plan shall be

consistent with such plans if the local plan is "compatible with"

and "furthers" such plans. The term "compatible with" means that

the local plan is not in conflict with the comprehensive plan or

appropriate regional policy plan. The term "furthers" means to

take action in the direction of realizing goals or policies of

the state or regional plan.

42. In this case, the Petitioners did not prove beyond fair

debate that the FLUM Amendment was inconsistent with the State

Comprehensive Plan.

RECOMMENDATION

Based upon 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's FLUM Amendment 06-19

is "in compliance."

DONE AND ENTERED this 18th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July, 2008.

ENDNOTES

1 / All statutory citations are to the 2007 codification.

2 / All rule references are to the Florida Administrative Code.

3 / The reference to Section 4.4.M.1.(d)(6) is obsolete; the

correct reference is Section 4.4.M.1.(f)(6).

COPIES FURNISHED :

Thomas Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 100

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 325

Tallahassee, Florida 32399-2160

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996-3322

Samuel Dean Bunton, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Virginia P. Sherlock, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stuart, Florida 34995-1197

Tim B. Wright, Esquire

Wright, Ponsoldt & Lozeau

1002 Southeast Monterey Commons Boulevard

Suite 100

Stuart, Florida 34996-3340

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.