10-010007GM 1000 Friends Of Florida, Inc., Martin County Conservation Alliance, Inc., And Donna S. Melzer vs. Martin County And Department Of Community Affairs Status: Closed Recommended Order on Thursday, May 5, 2011.

Summary: Plan amendments determined to be in compliance; utility services need only be planned or programmed, and not in place, in order to approve amendments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1000 FRIENDS OF FLORIDA, INC., )

MARTIN COUNTY CONSERVATION )

ALLIANCE, INC., AND DONNA )

SUTTER MELZER, )

)

Petitioner s, )

)

vs. ) Case No. 1 0 - 10007GM

)

MA RTIN COUNTY AND DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondent s , )

)

and )

)

TURNER GROVES, LTD ., AND )

CONSOLIDATED CITRUS LIMITED )

PARTNERSHIP, )

)

Inter venors. )

______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on March 15 and 16 ,

2011, in Stuart , Florida.

APPEARANCES

For Petitioner s : Virginia P. Sherlock, Esquire

Howard K. Heims, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

Stua rt, Florida 34995 - 1197

For Respondent: David A. Acton , Esquire

(County) Office of County Attorney

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3322

For Respondent : Lynette Noor, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

For Intervenor : Kenneth G. Oertel , Esquire

(Turner Groves) Angela K. Oertel, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

For Intervenor: Cari L. Roth , Esquire

(Consolidated) Bryant Miller Olive, P.A.

101 North Monroe Street, Suite 900

Tallahassee, Florida 32301 - 1546

STATEMENT OF THE ISSUE

The issue is whether plan amendment s CPA 10 - 4 and CPA 10 - 5

adopted by Ma rtin County (County) by O rdinance No s . 881 and 882

on August 10, 20 10 , are in compliance.

PRELIMINARY STATEMENT

Ordinance No. 88 1 ( CPA 10 - 4 ) changes the land use

designation on a 1,717 - acre tract of property in the County from

Agriculture to AgT EC . Ordinance No. 882 (CPA 10 - 5) is a text

amendment to the Future Land Use Element (FLUE) that creates a

new site - specific future land use category labeled AgTEC, which

allows a mix of industrial, commercial, agricultural, and

conservation land uses on the property. The property is owned

by Intervenors, Turner Groves, Ltd. , and Consolidated Citrus

Limited Partnership. T he Department of Community Affairs

(Department) found the amendment s to be in compliance , and

notice of this action was published on October 7, 2010. (The

notice also addr essed three other amendments which are not

relevant to this dispute.)

On October 28, 2010, Petitioners, 1000 Friends of Florida,

Inc., Martin County Conservation Alliance, Inc., and Donna

Sutter Melzer , filed with the Department a Petition for Formal

Admin istrative Hearing (Petition) cont ending the new amendments

are not in compliance on numerous grounds. The Department

re ferred the matter to the Division of Administrative Hearings

on November 2, 2010, with a request that an administrative law

judge be ass igned to conduct the hearing. By Order dated

November 4, 2010, Intervenors were authorized to intervene in

support of the challenged amendment s .

By agreement of the parties, a final hearing was scheduled

on June 21 - 23, 2011, in Stuart, Florida. After I ntervenors

filed a demand for expeditious resolution of the proceeding , the

hearing was rescheduled to March 15 - 17, 2011, at the same

location. By Order dated February 22, 2011, Petitioners were

authorized to file an amended petition. Their request to fi le a

second amended petition was denied by Order dated March 4, 2011.

A Joint Prehearing Stipulation ( s tipulation) was filed by

the parties on March 11, 2011. At the final hearing,

Petitioner s presented the testimony of Donna Sutter Melzer, an

attorney a nd accepted as a fact witness ; Charles G. Pattison,

Executive Director of 1000 Friends of Florida, Inc. , and

accepted as an expert; and Clyd e Dulin, County Senior Planner.

Also, they offered Petitioners ' Exhibits 4A, 4B, 5, 8, 12, 13A,

13B, and 15 - 18. Ex hibit 16 is the deposition testimony of

Nicki van Vonno, County Growth Management Director. All were

received in evidence except Exhibit 18, which was proffered by

counsel . The County presented the testimony of Nicki van Vonno ,

who was accepted as an exp ert. Intervenors presented the

testimony of Dr. James C. Nicholas, an economist/planner and

accepted as an expert; Dan iel DeLisi, a land use planner with

DeLisi Fitzgerald, Inc., and accepted as an expert;

Mitch Hutchcraft, a n employee of King Ranch Flori da Operations,

LLC; Tobin R. Overdo r f, an ecologist with Crossroads

Environmental Consultants, Inc., and accepted as an expert;

Jason B. Matson, a traffic engineer with Kimley - Horn and

Associates, Inc., and accepted as an expert; and Charles Lucas,

directo r of operations at King Ranch Florida Operations, LLC,

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

Exhibits 1, 3 - 8, 9A - E, 10, 11, 13 - 15, 18, 19, 21, and 24, which

were received in evidence. Exhibits 21 and 24 are the

depositions of Chris S tahl, a n Environmental Specialist III with

the Department of Environmental Protection, and Jennifer Goff, a

Biological Administrator II with the Florida Fish and Wildlife

Conservation Commission . The Department did not present any

witnesses. Finally, Joi nt Exhibits 1 - 6 were received in

evidence.

On March 9, 2011, Martin County Conservation Alliance,

Inc., and Donna Melzer filed a Motion for Attorney's Fees and

Costs Pursuant to § 57.105, F.S. On April 11, 2011, Intervenors

filed a Motion for Recovery of Costs and Attorney Fees pursuant

to sections 120.595 (1) and 120.569(2)(e), Florida Statutes

(2010). These motions are addressed in a later portion of this

Recommended Order.

The T ranscript of the hearing ( three volumes) was filed on

April 6 , 20 11 . P ropos ed f indings of f act and c onclusions of l aw

w ere filed by Petitioners, the County, and jointly by

Intervenors and the Department on April 18, 2011, and they have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A . The P artie s

1. The C ounty is a political subdivision of the State and

has the responsibility of administering its Comprehensive Plan

(Plan) . It adopted the two amendment s being challenged.

2. The Department is the state land planning agency

charged with the res ponsibility for reviewing plan amendments of

local governments, such as the C ounty .

3. The parties have stipulated that Petitioners all reside

or operate a business in the County, and they submitted oral or

written comments to the County during the adopti on process.

4. Intervenors are limited liability corporations owned by

King Ranch Florida Operations , LLC, an agricultural operation

with offices in Florida and Texas. Intervenors own the subject

property , which is more commonly known as Sunrise Groves. The

parties have stipulated to the facts necessary to establish that

Intervenors are affected persons.

B. The Plan Amendments

5. The amendments concern a 1 , 717 - acre parcel of land

located immediately west of , and adjacent to, Interstate 95

(I - 95) in the north ern p art of the County . Southwest Martin

Highway (also known as County Highway 714) , which runs in an

east - west direction , is situated on the south side of the

parcel, while the site is separated by a canal on its northern

boundary f rom the City of Port St. Lucie in St. Lucie County .

Aerial photographs reflect that undeveloped land lies to the

west of the property. See Intervenors' Exhibit 18. At least

four large and very urban Developments of Regional Impact (DRIs)

have been approved in Port St. Lucie , immediately north of the

parcel, including a planned regional mall on the immediate

northern boundary of the parcel.

6. F rom the mid - 1960's until the mid - 2000's, the parcel

was an active orange grove. Due to damage from citrus canker

and "gr eening," which is an incurable, aggressive, and deadly

virus affecting citrus plants, the parcel has become a literal

wasteland of dead orange trees. The property is now desolate

and unprofitable and cannot be converted to any other profitable

or feasible agriculture use.

7 . A round the same time that the citrus grove was being

destroyed, the County commissioned Urbanomics, Inc., and Leak -

Goforth Company, LLC, to perform an economic study to determine

how the County could better compete in the Florida mark et. In

November 2006, the results of that study were released. See

Intervenors' Ex. 11. The study indicated that the County should

be pursuing various types of industrial development, with a

focus on recruiting firms and institutions with 50 to 100 or

m ore employees, or those that have capabilities and are on pace

to reach this minimum employment threshold in three to five

years. The study also concluded that in order to accommodate

the types of industries that the County would need to pursue, it

would need more space designated for industrial use. Based upon

the study, the County has adopted policies in the Economic

Element of the Plan regarding future economic development in the

County. See Joint Ex. 1, Ch. 15.

8 . On September 30, 2009, Intervenors applied to the

County for a new land use designation to be added to the Plan,

allowing industrial uses to be combined with commercial and

agricultural uses on their parcel of land. See Intervenors'

Ex. 2. Intervenors also applied for a change in the lan d use

category on their property from Agricultural to the new land use

category. The re - designated parcel would become a "freestanding

urban service district," which requires that the property be

served by water and sewer services from a regional supplier

rather than individual wells, septic tanks, or on - site package

treatment plants. It w ould be one of two freestanding urban

service districts ( USDs ) in the County. 1

9. When Intervenors initially applied to the County for

the amendments, the proposed futu re land use category was titled

"I - 95 Agricultural Technology & Employment Center." As the

amendment evolved in subsequent months, however, a decision was

made to shorten the name to something less cumbersome, which

ultimately became "AgTEC , " an acronym f or Agriculture and

Targeted Employment Center.

10. As proposed , the AgTEC designation was significantly

different from other land use designations in the Plan in a

number of ways. AgTEC is a "site - specific" land use

designation, tailored for a specific parcel of property , the

1 , 717 acres owned by Intervenors. It allows for agricultural

uses to continue indefinitely on 817 acres of the parcel , if a

viable agricultural use can be found in the future . It also

permits new uses on a maximum of 900 acres of the parcel, but

limited to certain "Primary Targeted Employment" uses and others

which are ancillary to them. Residential is not an allowable

use. Finally, i t imposes a strict requirement that all future

development of the parcel must be subject to a Pla nned Unit

Development (PUD) approval process.

11. On April 14, 2010, the Board of County Commissioners

(Board) approved the application and voted to transmit

Amendments 10 - 4 and 10 - 5 to the Department. On June 25, 2010,

the Department issued its Object ions, Recommendations, and

Comments (ORC) report recommending that the two amendmen ts not

be adopted unless additional data were supplied and certain

revisions made. See Petitioners' Ex. 4B, pp. 26 - 47. The

Department's objections related to urban sprawl, a failure to

demonstrate need, transportation deficiencies, lack of access to

public facilities, and a failure to preserve agricultural lands.

12. On July 17, 2010, Intervenors submitted a response to

the ORC report, which included an update to the origi nal

application addressing the Department's concerns . They also

provided additional data and analysis concerning the structure

of the County's economy; location quotient data (ratios by type

of economic activity in the region) , which w ere consistent with

a report submitted by Dr. Nicholson , an e conomist e mployed by

Intervenors ; and environmental information .

13. On August 1 0 , 2010, by a 3 - 2 vote, the Board adopted

the FLUM amendment as Ordinance No. 881 and a revised version of

the text amendment as Ordin ance No. 882. See Joint Ex. 4 and 5.

On October 6, 2010, the Department issued its notice of intent

to find the amendments in compliance. See Joint Ex. 6. On

October 7, 2010, the Department published notice of its intent

to find the amendments in compl iance in The Stuart News .

Petitioners then timely filed their Petition , as later amended .

14. Ordinance No. 881 refers in its title to a parcel of

land known as "Sunrise Groves," which is described in the main

body of the ordinance as 1,717 acres of land located west of

I - 95 and north of Southwest Martin Highway . The site is also

defined by legal description attached as Exhibit A to that

ordinance. See Joint Ex. 4 , pp. 4 and 5 . The title indicates

that the land designation on the FLUM is being change d from

Agricultural to AgTEC.

15. Ordinance No. 882 also refers in its title to a parcel

of land as "Sunrise Groves , " and that a new site - specific land

use category, AgTEC, is being created for that parcel. The text

amendments, which are attached as Exhi bit A, provide further

site - specific indicat ors of where the new land use designation

applies. See Joint Ex. 5 , pp. 5 - 17 . They describe an area

that is 1,717 acres in size, state that AgTEC uses may be no

closer than 300 feet from any existing residenti al use, and

require provision of the right - of - way for a multi - lane arterial

north - south roadway "connecting Martin Highway [in Martin

County] to Becker Road [in adjoining St. Lucie County],

providing the opportunity for a regional parallel reliever road

to I - 95 . . . . " Id. at pp. 6 and 7. This roadway (an

extension of Village Parkway) is specifically depicted on a

conceptual map showing the general location where it is to be

built. See Joint Ex. 5, AgTEC Long Range Trans p . Map.

16. Petitioners contend t hat the text amendment does not

clearly identify the location of the property or Intervenors'

parcel as the subject of the amendments , partly because the

ordinance title and conceptual map will not become a part of the

Plan . However , Ordinance Nos. 881 a nd 882 clearly refer to the

same specific parcel of land intended for designation as "AgTEC"

and subject to the requirements of the AgTEC future land use

category. W hen reading the two ordinances, a reasonable person

would not be confused as to which prop erty designated for the

new land use category applies. The more persuasive evidence

supports a finding that no other parcel of land within the

County could be similarly designated as "AgTEC , " absent an

amendment to the AgTEC future land use category in th e Plan.

C. Petitioners' Objections

1 7 . As narrowed by their stipulation and the withdrawal of

certain issues at hearing , Petitioners contend that the

amendments are internally inconsistent with other provisions

within the Plan; that the amendments enco urage urban sprawl;

that the amendments impermissibly convert land designated for

agricultural purposes to other uses; that the text amendment is

based upon the Plan that was in effect prior to the Evaluation

and Appraisal Report (EAR) amendments that beca me effective in

January 2011, thereby creating internal inconsistencies; that

there is no demonstrated need for the amendments; that the

amendments are not supported by adequate data and analysis; and

that the amendments fail to provide meaningful and pred ictable

standards for implementation. A contention that the text

amendment includes unauthorized self - amending language is not

addressed in Petitioners' proposed recommended order and is

presumed to be abandoned.

a. Internal Inconsistency

18. Petition ers contend that the amendments are internally

inconsistent with other FLUE provisions in numerous respects.

Some of these consistency arguments are based on the fact that

the text amendments in Ordinance No. 882 use the numbering

system for the goals, ob jectives, and policies of the FLUE that

was in effect when Ordinance No. 882 was adopted on August 10,

2010, rather than the new numbering system that became effective

on January 3, 2011. 2 As described in Endnote 2, infra , the new

numbering system was ado pted by the County during the months -

long process of amending the Plan during the EAR process . The

new text added to the Plan during that time - frame w ill simply be

re - numbered by the Municipal Code Corporation, wh ich publishes

the codified version of the Plan, to conform to the new

numbering system. This is consistent with the publisher's

authority under Part 6 of Ordinance No. 882, which states in

relevant part: "CODIFICATION. The word 'ordinance' may be

changed to 'article[,]' 'section[,]' or other wo rd and the

sections of this ordinance may be renumbered or re - lettered."

Joint Ex. 5, p. 3. This codification provision is found in

every ordinance adopting a text amendment. By way of example,

the content in section 4.4. g .1.n(3) in Ordinance No. 882 (o n

page 17 of Joint Exhibit 5) will be recodified in new policy

4.7A.14 , which replaces the old section . Except for the new

number, the content of both provisions is the same. See Joint

Ex. 1, Ch. 4, p. 50. There was no evidence that the new EAR -

based am endments create an inconsistency with these amendments.

19. Petitioners also contend that an internal

inconsistency in the Plan arises due to two references to "I - 95

AgTEC" in Ordinance No. 882 (on pages 7 and 11) , and a single

reference to "AgTech" in Or dinance No. 881 (on page 2) . They

also argue that the "I - 95 AgTEC" category lacks "meaningful and

predictable standards for implementation" as a land use

designation if it is distinct from the "AgTEC" category.

However, they failed to present any evidenc e that Intervenors or

the County intended to create two different future land use

categories.

20 . The evidence supports a finding that both references

to "I - 95 AgTEC" in Ordinance 882 were merely "vestigial"

references ( i.e. , references made during an ear ly stage of the

amendment process) to the initial title proposed for the land

use category when Intervenors first applied to the County. The

evidence shows that the County staff simply missed the two

references when it conducted an electronic "find and re place"

search intended to convert all references in the ordinance to

"AgTEC" before presenting the final draft to the Board for

adoption. Except for these two references to "I - 95 AgTEC , " the

ordinance consistently use s the "AgTEC" title for the land use

d esignations. Both references are merely scrivener's errors.

2 1 . The single reference to "AgTech" in Ordinance No. 881

is simply a misspelling of the proper title of the new future

land use category to be applied to the property. The

simultaneous adoptio n of the two ordinances, the application for

both ordinances by the same applicant, and the obvious

similarity between the correct spelling and the misspelling

support a finding that the use of "AgTech" in Ordinance No. 881

is also a scrivener's error.

2 2. Historically, after securing Board approval, the staff

has been authorized to correct errors in the FLUM without a

formal amendment ; however, the County Growth Management Director

could not recall a situation where a scrivener's error in a text

amendme nt had occurred and was unsure as to how that type of

error would be corrected . More than likely, these scrivener's

errors will be corrected by another plan amendment. In any

event, these non - substantive, minor scrivener's errors do not

render the amendm ents not in compliance.

2 3 . Petitioners further contend that the amendments are

inconsistent with the County's stated policy of preserving

agricultural lands. See Joint Ex. 1, FLUE policy 4.12A.1.

However, the amendments preserve almost one - half of the land

(817 acres) for agricultural purposes e ven though the entire

parcel is now unproductive. Petitioners also argue that the

amendments are internally inconsistent with FLUE Objective s

4.13A.1.(2)(a) and (b), which provide that the conversion of

agricult ural land to another land use may be done only when it

does not affect the hydrology or productive capacity of adjacent

farmlands, and only when it is a "logical and timely extension

of a more intense land use in a nearby area." As noted above,

there are four approved DRIs immediately north of the parcel in

the southwestern quadrant of Port St. Lucie , including a large

regional mall on the parcel's northern boundary. The new land

use is a logical extension of a more intense land use in a

nearby area. Als o, t here is no evidence that the new land use

will affect the hydrology or productive capacity of adjacent

farmlands. To the contrary, the evidence shows that any

adjacent agricultural areas to the west are protected by a

requirement that 75 percent of th e common open space be along

the western border. It is fairly debatable that the amendments

are consistent with the cited policies.

2 4 . Petitioners contend that the amendments are internally

inconsistent with a series of FLUE policies that , in general

te rms : (a) require the availability of services and facilities

before expanded urban development may be approved (FLUE policies

4.1B.2 . , 4.1B.3 . , and 4.13A.1 . (b)) ; (b) prohibit any regional

utility from serving customers outside the Primary Urban Service

Di strict ( PUSD ) and Secondary Urban Service District ( SUSD )

(FLUE policies 4.7A.2 . - 4 . , 4.7A.10 . , 4.7B.8.(6) - (7), and

4.7B.9.) ; and (c) prohibit urban development outside the PUSD

(FLUE policy 4.13A.9 . ) . Although couched differently, the

essence of the argum ent is that the amendments allow development

in an area that is not presently within any PUSD or SUSD,

thereby creating an issue of internal inconsistency with other

provisions of the Plan.

2 5 . The existing Plan establishes two main types of "urban

serv ice districts" in the County: a PUSD and a SUSD. See Joint

Ex. 1, Ch. 4. There is an "eastern" PUSD that includes most of

the unincorporated coastal area of the County, surrounding the

Cities of Stuart, Sewall's Point, Jupiter Island, and Ocean

Breeze P ark. Adjacent to the eastern PUSD is a much smaller

eastern SUSD. See Joint Ex. 3. Several miles west of the

boundaries of the eastern PUSD and SUSD there is a smaller

"Indiantown" PUSD that consists of the unincorporated inland

area of the County known by that name, and an adjacent

Indiantown SUSD. Id.

2 6 . The County's purpose for having USDs is to "regulate

urban sprawl by directing growth in a timely and efficient

manner to areas with urban public facilities and services, where

they are programmed t o be available, at the levels of service

adopted in the Plan." Joint Ex. 1, FLUE Goal 4.7.

2 7 . The provision of "urban public facilities and

services" is generally limited by the Plan to the land inside

the County's USDs. The term "public urban facili ties and

services" is defined as " [ r ] egional water supply and wastewater

treatment/disposal systems, solid waste collection services,

acceptable response times for sheriff and emergency services,

reasonably accessible community park and related recreationa l

facilities, schools and the transportation network." Joint Ex.

1, Ch. 2, § 2.2(127).

2 8 . The Plan also contains numerous provisions that

establish a broad prohibition against all industrial uses and

most commercial uses on land outside the County's U SDs.

29 . The Plan expressly provides for the creation of so -

called "Freestanding Urban Service Districts" within the County.

See Joint Ex. 1. Ordinance No. 882 includes an amendment to

FLUE section 4.4.M.1.h.(5) to establish that land designated as

AgTE C shall be a freestanding USD. See Joint Ex. 5, p. 8. It

also amends FLUE section 4.4.g.1.n.(3) to include land

designated AgTEC as one of several enumerated "exceptions to the

general prohibitions on development outside of the [PUSD] ." Id.

at p. 17. T his means that the amendment creates its own

exception from restrictions in the Plan that might otherwise

apply to development outside the PUSD. Therefore, the

prohibition s against a regional utility serving a customer

outside the PUSD and SUSD, or expand ing urban development

outside a PUSD, do not apply. As noted above, these amended

section numbers will be renumbered in the codification process

to conform to the numbering in the new EAR - based amendments.

However, the content remains the same. See F ind ing of F act 18,

supra .

3 0 . Petitioners presented no evidence that the

freestanding USD for the AgTEC - designated land would lack the

urban public facilities and services that would be necessary

under the Plan. U tility services do not have to be physical ly

available at the property boundary before a change in land use

can be approved ; they must only be planned or programmed. To be

programmed, the services may be identified in the capital

improvement element of the Plan or appear in a DRI approval.

Accor ding to Mr. Dulin, County Senior Planner, the utility

services for the parcel appear in "one or a number of the [DRIs]

approved in the southwestern quadrant of Port St. Lucie." Th is

type of arrangement for services is not unusual, as the C ounty

now provid es services to some areas in St. Lucie County , while

Port St. Lucie and St. Lucie County provide services to certain

areas in the County.

3 1 . The evidence shows that Port St. Lucie has the

capacity to meet the requirements of the development, and that

t hose services will be paid for by the developer, and not the

County. At the amendment stage, the lack of a formal written

agreement between the developer and Port St. Lucie is of no

concern, as one is not required until the Intervenors seek a

development order from the County .

3 2 . It is fairly debatable that the amendments are

consistent with the FLUE.

b . Urban Sprawl

3 3 . Florida Administrative Code R ule 9J - 5.006(5)(g)

identifies 13 "primary indicators" of urban sprawl to be

considered in the review o f plan amendments to determine whether

the presence of multiple indicators "collectively reflect a

failure to discourage urban sprawl." Fla. Admin. Code R. 9J -

5.005(5)(d). Petitioners ' expert, Charles G. Pattison, contend s

that , with the exception of fou r indicators (1, 4, 11, and 13),

all other indicators are triggered by the changes effectuated

through the amendments being challenged. However, indicator 3

was not raised in the Amended Petition or stipulation .

Therefore, only the remaining eight indica tors will be

addressed. See Heartland Envtl. Council, Inc. v. Dep't of

Community Affairs , Case No. 94 - 2095GM (Fla. DOAH Oct. 15, 1996),

modified in part , Case No. DCA - 96 - FOI - GM (Fla. DCA Nov. 25,

1996) , 1996 Fla. ENV LEXIS 163 at *63 .

3 4 . Indicator 2 r equires a determination as to whether the

amendments promote, allow, or designate "significant amounts of

urban development to occur in rural areas at substantial

distances from existing urban areas while leaping over

undeveloped lands which are available and suitable for

development." Fla. Admin. Code R. 9J - 5.006(5)(g)2. As noted

above, l arge and very urban DRIs have been approved in

neighboring Port St. Lucie just north of Intervenors' property,

including a planned regional mall on the immediate norther n

boundary of the property. Also, some of the infrastructure for

these developments has been constructed immediately north of

Intervenors' parcel, to which the infrastructure on Intervenors'

parcel is required to connect. It is un reasonable to ignore

thi s development simply because it lies within an adjacent local

government , rather than viewing the existing and approved

development in the area as a whole . A more reasonable approach

is to consider the existing urban areas immediately to the north

of the parcel.

3 5 . Indicator 5 requires an analysis to determine whether

the amendments fail to "adequately protect adjacent agricultural

areas and activities, including silviculture, and including

active agricultural and silvicultural activities as well as

pass ive agricultural activities and dormant, unique and prime

farmlands and soils." Fla. Admin. Code R. 9J - 5.006(5)(g)5.

Because the parcel is bordered on the east by I - 95 and on the

north by DRIs in Port St. Lucie, the only areas of concern

affected by this indicator would be to the south or west of the

parcel. Petitioners failed to prove, however, that the AgTEC

requirements for buffers on the east and south boundaries and

required open space on the western border of the site constitute

inadequate protecti on for any adjacent agricultural areas or

activities within the meaning of the rule.

3 6 . Indicator s 6 , 7, and 8 are related to the orderly and

efficient provision of public services and facilities. See Fla.

Admin. Code R. 9J - 5.006(5)(g)6. - 8. Urban spraw l is generally

indicated when new public facilities must be created to serve a

proposed use. As noted above, t he provider of water and sewer

services to Intervenors' parcel (Port St. Lucie) has ample

capacity to meet its projected needs and the capability of doing

so from adequately sized lines located within a quarter of a

mile from the parcel. Also, there is no credible evidence that

there will be a lack of transportation infrastructure to meet

the demand expected to be placed on the parcel.

3 7 . Indica tor 9 requires an analysis to determine if the

amendments fail "to provide a clear separation between rural and

urban uses." Fla. Admin. Code R. 9J - 5.006(5)(g)9. Through the

use of setbacks, buffers, and other site design criteria, it is

at least fairly debatable that the amendments create a

sufficiently clear separation between the industrial/commercial

uses that would be allowed and any rural uses to the south and

west of the site. Petitioners did not identify any adjacent

rural uses that would require such separation.

3 8 . Indicator 10 requires that the amendments do not

discourage or inhibit infill development or the redevelopment of

existing neighborhoods and communities. While Petitioners

pointed out that there are other parcels in the County cur rently

designated for industrial use, those parcels are either too

small or too scattered to attract the types of industrial

development desired by the County , which are described in the

Economic Element of the Plan. Further, there was no evidence

that th e other smaller and scattered parcels would be adversely

affected by the large - scale development envisioned on the AgTEC

land.

39 . Finally, indicator 12 requires an analysis to

determine if the amendments result "in poor accessibility among

linked or rela ted land uses." Fla. Admin. Code R. 9J -

5.006(5)(g)12. The evidence shows that the AgTEC requirements

for new transportation infrastructure, coupled with the existing

access from two adjacent interchanges on I - 95, provide ample

accessibility for the parce l and other related land uses.

4 0 . In summary, it is at least fairly debatable that none

of the primary indicators of urban sprawl at issue are triggered

by the amendments .

c . Other Issues

4 1 . Petitioners assert that Intervenors failed to

demonstrate a need for commercial or industrial land outside the

USDs. They also contend that the economic study performed by

Dr. Nicholson failed to consider other vacant parcels of land

designated for industrial use , including large amounts of

acreage in Palm City and Indiantown. However, Dr. Nicholson

established that of the 2,590 acres of available industrial land

in the County, the vast majority of these sites are small, less

than five acres in size , and are inadequate. He also

established that the County lacks any well - planned, amenity -

oriented industrial, office, or business parks , which would be

the type of development contemplated on Intervenors' parcel. It

is fairly debatable that the needs analysis submitted by

Intervenors is adequate to support the amend ments.

4 2 . Although raised as an issue, there was no evidence

that the amendments are internally inconsistent with any

provisions within the Economic Element of the Plan.

4 3 . All other contentions not specifically addressed

herein have been considered a nd rejected.

D. Improper Purpose

4 4 . Because they did not substantially change the outcome

of the Department's determination that the amendments are in

compliance, Petitioners are non - prevailing adverse parties . See

§ 120.595(1)(e)3., Fla. Stat. Theref ore, it is necessary to

make a determination as to whether Petitioners participated in

this proceeding for an "improper purpose," as that term is

defined in section 120.595(1)(e)1.

4 5 . Petitioners generally alleged that the amendments were

internally in consistent with other Plan provisions in numerous

respects, that they encouraged urban sprawl, that they contain

substantive errors that cannot be corrected in this proceeding,

and that there is no needs analysis to support the amendments.

Each of these c ontentions w as ultimately found to be without

merit, and contrary evidence on these issues submitted by the

County and Intervenors was credited . However , when taken as a

whole, the record does not support a finding that Petitioners

participated in this pr oceeding " primarily " to harass the

applicants , increase the cost of litigation, or cause them

unnecessary delay . The Amended P etition was not frivolous .

CONCLUSIONS OF LAW

4 6 . In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

s ection 163.3184(1)(a) . The parties have stipulated to the

facts necessary to establish standing for Petitioners and

Intervenors.

4 7 . Once the Department renders a notice of intent to find

a plan amendment in compliance , as it did here, th at plan

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

government's determination of compliance is fairly debatable."

§ 163.3184(9)(a), Fla. Stat. Therefore, Petitioner s bear the

burden of proving beyond fair debate t hat the challenged plan

amendment is not in compliance. This means that "if reasonable

persons could differ as to its propriety," a plan amendment must

be upheld. Martin C n ty. v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997). Whe re there is "evidence in supp ort of both sides of a

comprehensive plan amendment, it is difficult to determine that

the County's decision was anything but 'fairly debatable.'"

Martin C n ty. v. Section 28 Partnership, Ltd. , 772 So. 2d 616,

621 (Fla. 4th DCA 2000).

4 8 . For the reasons given in the Findings of Fact,

Petitioner s have failed to establish beyond fair debate that the

amendment s adopted by Ordinance Nos. 881 and 882 are not in

compliance.

49 . Jurisdiction in this matter i s retained for the

limited purpose of considering Int ervenors' request for

sanctions under section 120.569(2)(e), if renewed within 30 days

after this proceeding becomes final. 3 In the event a final order

is rendered in Petitioners' favor, jurisdiction is retained for

the limited purpose of considering Peti tioners' request for fees

and costs under section 57.105 (5) , if renewed within 30 days

after the proceeding becomes final .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community A ffairs enter

a final order determining that the amendments adopted by

Ordinance Nos. 881 and 882 are in compliance.

DONE AND ENTERED this 5th day of May , 20 11 , in Tallahassee,

Leon County, Florida.

S

D . R. ALEXANDER

Admi nistrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Heari ngs

this 5th day of May , 20 11 .

ENDNOTE S

1/ The purpose of a freestanding USD is to provide industrial

and commercial development in an area that is not within one of

the two primary USDs, as shown on the USD map in the Plan.

2 / On December 16, 2009, the County adopted its EAR - based

amendments to every element of its Plan, including Chapter 4, the

FLUE, by Ordinance Nos. 843 through 856. Among other things,

these amendments renumbered existing goals, objectives, and

policies. Seven of the fourteen am endments were challenged by

affected parties, including two of the Petitioners in this case.

A t the conclusion of the adm inistrative proceeding , and after one

amendment was repealed , all remaining amendments were found to be

in compliance. See Martin C n t y. Conservation Alliance, Inc. v.

Martin C n ty. , Case No. 10 - 0913GM, 2010 Fla. ENV LEXIS 154 (Fla.

DOAH Sept. 7, 2010), modified in part , Case No. DCA11 - GM - 001 ,

2011 Fla. ENV LEXIS 1 (Fla. DCA Jan. 3, 2011). Until that

challenge was finally resolved in Jan uary 2011 , Plan amendments

adopted by the County in 2010, including Ordinance Nos. 881 and

882, were obviously required to use the numbering system in the

pre - EAR amendments.

3/ The paper to which the motion is directed is apparently the

stipulation sub mitted by the parties on March 11, 2011. See

Motion, p. 8, par. 19.

COPIES FURNISHED:

William A. B uzzett , Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Deborah K . Kearney , General Counsel

Depar tment of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Virginia P. Sherlock, Esquire

Littman, Sherlock & Heims, P.A.

Post Office Box 1197

St uart, Florida 34995 - 1197

David A. Acton , Esquire

Senior Assistant County Attorney

2401 Southeast Monterey Road, Fourth Floor

Stuart , Florida 34996 - 3322

Lynette Noor , Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Kenneth G. Oertel, Esq uire

Oertel, Fernandez, Cole & Bryant, P.A.

Po st Office Box 1110

Tallahassee, Florida 32302 - 1110

Cari L. Roth, Esquire

Bryant Miller Olive P.A.

101 North Monroe Street, Suite 900

Tallahassee, Florida 32301 - 1546

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions 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.