15-000300GM Martin County Land Co. vs. Martin County Status: Closed Recommended Order on Tuesday, September 1, 2015.

Summary: Petitioner did not prove beyond fair debate that the plan amendment was not "in compliance" as that term is defined in 163.3184(1)(b), Fla. Stat.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN COUNTY LAND CO.,

Petitioner,

vs. Case No. 15 - 0300GM

MARTIN COUNTY,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this matter in

Stuart , Florida, o n April 28 and 29, 2015 , before Suzanne

Van Wyk, an A dministrative Law J udge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gregory M. Munson, Esquire

Gunster , Yoakley and Stewart, P.A.

215 South Monroe Street, Suite 601

Tallahassee, Florida 32301

For Respondent: Linda Loomis Shelley , Esquire

Buchanan Ingersoll and Rooney, PC

Fowler, White, Boggs, P.A.

1 01 North Monroe Street, Suite 1090

Tallahassee , Florida 32301

STATEMENT OF THE ISSUE

Whether Martin County Comprehensive Plan Amendment 14 - 6 ,

adopted by Ordinance No. 965 on December 16, 2014 , is " in

compliance, " as that term is defined in section 163.3184(1)(b),

Florida Statutes (201 4 ). 1 /

PRELIMINARY STATEMENT

On December 16, 2014 , Martin County adopt ed Comprehensive

Plan Amendment (CPA) 14 - 6 , which revise d C hapters 2, 4 , 10 , and

11 of the County ' s Comprehensive Growth Management Plan

(Comprehensive Plan) .

On January 15, 2015 , Petitioner filed a Petition with the

Division of Administrative Hearings challenging CPA 14 - 6

pursuant to section 163.3184. 2 / P etitioner alleges that the Plan

Amendment fails to provide principles, guidelines, standards ,

and strategies for the orderly and balanced future economic,

s ocial, physical, environmental, and fiscal development of the

County, as required by section 163.3177(1); is not based on

relevant and appropriate data and analysis, as req uired by

163.3177(1)(f) ; does not designate amounts of land for future

uses that allow the operation of real estate markets to provide

adequate choices for permanent and seasonal residents and

business , as required by 163.3177(6)(a)4.; and is internally

inconsistent, in violation of 163.3177(2) .

Specifically, Petitioner challenges ch anges that delet e the

Expressway Oriented Transit Commercial Serv ice Center land use

designation; impose a 2,000 gallon - per - day limit on onsite

sewage treatment and disposal systems ( septic systems ) ;

eliminat e the use of septic systems in the urban service

districts where regional wa stewater treatment is available;

restrict extension of regional wastewater t reatment systems

outside the p rimary Urban Service District (while prohibitin g

new package treatment plants); and limi t new develop ment within

the p rimary Urban Service Dist rict to low - density residential.

The final hea ring was scheduled for April 28 and 29, 2015 .

The p arties jointly filed a pre - hearing s tipulation on April 23,

2015 , and the hearing co mmenced as scheduled .

At the final hearing, Petitioner presented the testimony of

David W. Depew, accepted as an expert in comprehensive planning;

Samantha Lovelady , Martin County Principal Planner ; John Polley ,

Martin County Director of Utilities and Solid Waste ; Richard

Creec h , accepted as an expert in water and wastewater

engineering and design ; Tobin Overdorf , accepted as an expert in

environmental science and ecology ; and Henry Fishkind , accepted

as an expert in economics. Petitioner ' s Exhibits P 2, P5 through

P10, P12, P17 , P25, P31, P44, P61, P70, P71, and P81 th r ough

P84 , were admitted in evidence. Petitioner proffered P11, which

was not admitted in evidence, but will travel with the record of

this case.

Respondent presented t he testimony of Catherine Riiska,

Martin County Senior Planner ; Charles Gaut h ier , accepted as an

expert in comprehensive planning and Florida ' s growth management

laws ; Samantha Lovelady; Robert Washam, former Martin County

Environmental Health Director; and Maggy Hurchalla, former

County Commissi oner. Respondent ' s Exhibits R1 through R 4 , R6 ,

R8, R9, R12, R17, R19 through R23, R26, R34, R41 through R43,

R45 t hrough R47, R49 through R53, R55 through R58, R60, R62 , and

R63 , were admitted in evidence.

The three - volume T ranscript of the final hearing was filed

with the Division on May 26, 2015 . Petitioner and Respondent

both timely filed Proposed Recommended Order s which have been

carefully considered by the undersigned in the preparation of

this Recommended Order .

FINDINGS OF FACT

I. The Parties and Standing

1 . Petitioner, Martin County Land Co. ( Petitioner) , owns

real property and operates a business in Martin County.

2 . Respondent, Martin County (Respondent or County), is a

political subdivision of the State of Florida with the duty and

resp onsibility to adopt and amend a comprehensive growth

management pl an pursuant to section 163.3167 .

3 . On December 16, 2014 , the County adopt ed Comprehensive

Plan Amendment 14 - 6 (the Plan Amendment), which proposes to

revise Chapters 2, 4, 10, and 11 of the County ' s Comprehensive

Growth Management Plan (Comprehensive Plan).

4 . Petitioner submitted written and oral comments to the

County concerning the Plan Amendment during the period of time

between transmittal and adoption of the Plan Amendment .

II. Background and Existing Conditions

5 . The County ' s original Comprehensive Plan was adopted in

1990 and was challenged by the Department of Community Affairs

(DCA) as not " in compliance. " Since its inception, the

Comprehensive Plan has been the subject o f substantial

litigation , most of which ha s little relevance here to .

6 . At least once every seven years, local governments are

required to under take an evaluation and appraisal of their

comprehensive plans. See § 163.3191(1), Fla. Stat. During this

evaluation, local governments must amend their plans to reflect

changes in state requirements. See § 163.3191(2). The statute

also encourages local governments to comprehensively evaluate

changes in local conditions, and , if necessary, update their

plans to reflect said changes. See § 163.3191(3).

7 . Local government plan amendments made pursuant to

section 163.3191 are commonly referred to as " EAR amendments. "

8 . The County adopted its most recent EAR amendments in

2009, following an evaluation and appraisal of the Comprehensive

Plan and changes in state requirements. The 2009 EAR amendments

were challenged by a number of parties as not " in compliance. "

Administrative challenge to the EAR amendments concluded, and

the amendments became effectiv e , in 2011.

9 . One of the signature features of the County ' s

Comprehensive Plan is the urban service districts (USDs). The

USDs were created as part of the Comprehensive Plan after 1990.

10 . The purpose of the USDs is to regulate urban sprawl by

directing growth to areas where urban public facilities and

services are available, or programmed to be available, at

appropriate levels of service. The County refers to this

approach as an " urban con tainment policy. "

11 . Public urban facilities and services are defined by

the Comprehensive Plan as " [r]egional water supply and

wastewater treatment/disposal systems, s olid waste collection

services, acceptable response times for sheriff and emergency

s ervices, reasonably accessible community park and related

recreational facilities, schools and the transportation

network. " Notably, neither package wastewater treatment plants

(package plants) nor onsite wastewater treatment sy s tems (septic

systems) are included within the definition of public urban

facilities.

12 . C ommercial, industrial, and urban - density residential

development, as well as future development requiring public

urban facilities, are concentrated within the primary USD. With

few exceptions, development within the primary USD is required

to connect to regional wastewater systems. The existing

Comprehensive Plan allows interim development on package plants

only if the developer agrees to connect to regional wastewater

syst ems when those systems become available. With very limited

exceptions, septic systems are not permitted for new residential

development within one - quarter mile of a regional wastewater

system.

13 . Rural development at one unit per two acres (one/two

a cres) and estate development not exceeding one unit/acre are

concentrated in the secondary USD where a reduced level of

public facilit ies are programmed to be available at appropriate

levels of service. A minimum lot size of one - half acre applies

to all d evelopment. Regional sewer service may be extended to

serve residential properties exceeding the one - half acre minimum

lot size , and where lot sizes are inappropriate for septic

systems.

14 . Development outside the USDs is limited to low -

intensity uses, including Agricultural (not exceeding one

unit/20 acres), Agricultural Ranchette (not exceeding one

unit/five acres), and small - scale services necessary to support

rural and agricultural uses. Some residential estate

development is allowed on the fringe of the USDs at one

unit/acre. R egional sewer service may not be extended outside

the USDs , and package treatment plants are allowed only to serve

a limited category of commercial development ti tled " Expressway

Oriented Commercial Service Centers. "

15 . The existing Comprehensive Plan does not establish a

standard septic system flow rate . The County follows the state

standards established in Florida Administrative Code Rule 64E -

6.008 , which pro vide for a residential rate of 10,000 gallons

per day (gpd) and a rate of 5,000 gpd for non - residential uses.

III. Expressway - Oriented Transit Commercial Service Centers

16 . In 198 5 , in anticipation of the construction of

Interstate 95 (I - 95) through the County, the County created an

overlay land use category, Expressway - Oriented Transient

Commercial Service Centers ( Expressway Nodes ), " to recognize the

immediate and unique needs of the public traveling through the

County. "

17 . The overlay is limite d to the I - 95 interchanges with

County Road 714 (CR 714 or SW Martin Highway), located in the

northern central area of the County ; CR 76 ( CR 76 or Kanner

Highway), located in the western urbanized area of the County;

and CR 708 (CR 708 or SE Bridge Road ) , located in the

southwestern area of the County.

18 . The overlay is not self - implementing. Future Land Use

Element ( FLU E ) Policy 4.13.A8(5), governing Expressway N odes,

includes a number of requirements for a proposed development to

qualify for the d esignation. Notably, an applicant for

development at one of the nodes must submit a market feasibility

analysis demonstrating need by the traveling public for the

proposed services , submit a Planned Unit Development (PUD)

zoning application, and fully fund all urban services needed to

serve the development. Further, no Expressway N od e will be

approved outside the primary USD unless the developer provides

shared water and wastewater facilities for all subsequent

development at the same interchange.

19 . To qualify, the development p arcel must be a minimum

of five gross acres, directly accessible from a major arterial

roadway, and located in whole within 1,320 feet of an access

ramp and within 1,320 feet of the intersecting arterial roadway .

Unless prov en safe through an engineered traffic study, the

access point may not be closer than 660 feet from an access

ramp .

20 . Of the three interchanges, only Kanner Highway , and

that portion of SW Martin Highway east of the I - 95 interchange,

are designated majo r arterial roadway s . Southeast Bridge Road

and SW Martin Highway west of the interchange, are minor

arterial roadways.

21 . The County must amend its Comprehensive Plan in order

to reclassify a minor arterial to a major arterial. A roadway

is typically reclassified from minor to major arterial when some

threshold of traffic volume (ba sed on trip counts) is achieved.

No evidence was introduced to establish the particula r threshold

which distinguishes a minor from a major arterial .

22 . No evidence was introduced to establish the length of

time for which the segment of SW Martin Highway east of the

interchange has been classified a major arterial, thus m eeting a

primary threshold for Expressway N ode development of the eastern

quadrants of the interchange.

23 . Of the three interchanges, commercial services for the

traveling public are located only at Kanner Highway. The

interchange hosts at least three gas stations, a v ariety of

fast - food and dine - in restaurants, and two hotels.

24 . Commercial services for the traveling public are

availa ble at the I - 95 interchange at Indiantown Road in Palm

Beach County , 16 miles to the south of the Kanner Road

interchange. Services a re also available 18 miles north of

Kanner R oad at the I - 95 interchange at Gatlin Boulevard in

St. Lucie County.

25 . Services for the traveling public are also available

at a rest stop on I - 95 in Martin County.

26 . Petitioner challenges , on several grounds, the

deletion of FLUE Policy 4.13.A8(5) , which provides for the

Expressway Nodes overlay category.

A. Data and Analysis

27 . First, Petitioner argues the deletion of FLUE Policy

4.13 . A8(5) is not supported by data and analysis, as required by

s ection 163.3177(1)(f) . That section requires plan amendments

to " be based upon relevant and appropriate data and an analysis

by th e local government that may include . . . surveys, studies,

community goals and vision, and other data available at the time

of adoption " of the plan amendment. Id.

28 . The Expressway Nodes designation pre - dates adoption of

the USDs in 1990. The I - 95 interchanges at SW Martin Highway

and Bridge Road are located outside the USD s and the property at

those intersections is desi gnated for Agricultural land use.

Thus, commercial development at those interchanges is

inconsistent with the County ' s urban containment strategy and is

an exception to the prohibition o f urban uses outside the USDs.

29 . Further, SE Bridge Road functions as a minor arterial

roadway, a designation which has not changed in the 30 years

since the Expressway Nodes category was created. As such, the

interchange does not qualify for commercial development under

the restrictions of the poli cy itself. The same is true of SW

Martin Highway west of I - 95.

30 . While SW Martin Highway is a major arterial east of

the I - 95 interchange, no developer has come forwar d with a

proposal to develop any service business at that interchange.

31 . Accor ding to historic traffic counts from the I - 95

interchanges at both Kanner Road and SE Bridge Road, traffic has

generally increased both northbound and southbound on I - 95.

Between 1998 and 2013, average annual daily trips (AADT)

increased by 30,000 on I - 95 southbound from Kanner Highway and

14,500 southbound from SE Bridge Road. In that same period,

AADT trips eastbound on Kanner Highway increased by 16,500, and

eastbound on SE Bridge Road by 1,700.

32 . Similar increases in trip counts occurred at the

interchange ramps between 2009 and 2013. At Kanner Highway,

AADT counts on the northbound off ramp increased by 2,000,

southbound off ramp by 1,000, northbound on ramp by 600, and

southbound on ramp by 1,800.

33 . According to the Petitioner ' s e xpert, this general

trend will eventually lead to congestion of the service

facilities at Kanner Road, which will cause motorists to either

skip the Kanner Road exit altogether, or return to I - 95 in

search of another exit with the needed services.

34 . T he data indicate similar ly - increased AADTs at the

I - 95 interchange at Indiantown Road, the next interchange south

of Kanner Road where services and facilities are available to

the traveling public.

35 . Petitioner ' s expert likewise concluded that services

at the Indiantown interchange are " pretty much maxed - out " and

would likely also become congested in the future.

36 . AADT trip counts are data which were readily available

to the County from the Department of Transportation (DOT) when

the Plan Amendment was adopted.

37 . Petitioner argues that the Plan Amendment ignores this

readily - available data by deleting the Expressway Nodes

category.

38 . Petitioner ' s argument assumes a couple of factors.

First, it assumes the County has an obligation to provide

se rvices to the public traveling through the County. Neither

the Comprehensive Plan, nor the Community Planning Act, requires

the County to provide said services.

39 . Second, it assumes that increased traffic counts

through the interchanges directly correlate with increased

demand on the services located there. Petitioner introduced no

evidence to support this assumption. Increased trips through

the interchange cou ld be attributed to increased employment in

the urbanized area of the County from residents in Palm Beach or

St. Lucie C ounties , or from rural areas within Martin County .

40 . The County ' s witnesses agreed that I - 95 traffic counts

would be relevant to the County ' s determination to delete the

Expressway Nodes designation. However, the evidence does not

support a finding that retaining the Expressway Nodes overlay is

the only appropriate reaction to that data.

41 . Assuming Martin County was required to pro vide

services to the traveling public, Petitioner did not establish

the capacity of said services needed to serve the public, thus

requiring the County to maintain the overlay. With the

exception of hotel services, Petitioner introduced no evidence

regard ing a level of service or the utilization rate of the

services provided at either the Kanner Road or Indiantown

interchanges.

42 . With regard to hotels, Petitioner introduced hotel

occupancy rates published by Smith Travel Data, a hospitality -

industry source of statistics on occupancy and vacancy rates.

In March 2015, excluding the beach hotels, t he County hotels had

an aggregate occupancy rate of 92 percent. The average annual

occupancy rate of County hotels is in excess of 72 percent.

43. Elimination of the Expressway Nodes overlay is

supported by the County ' s urban containment strategy, as well as

its history relative to pack age treatment plants.

44 . The SW Martin Highway and SE Bridge Roa d interchanges

are outside the primary USD where regional sewer service is

available. As l ong as they remain outside the primary USD, the

option for wastewater treatment at those location s is limited to

package treatment plants.

45 . The County has a clear policy prohibiting new package

treatment plants. Existing FLUE Policy 4.7A.4 prohibits all

package treatment plants outside the USDs except to serve

development at the Expressway Nodes. Development at the

Expressway Nodes is the only exception to the prohibition. The

Plan Amendment deletes FLUE Policy 4.7A.4, thus eliminating the

exception to the prohibition on package treatment plants , which

prohibition is preserved elsewhere.

46 . In 1984, when John Polley, now Director of Utilities

and Solid Waste, began work ing for the County, there were 89

private package treatment plants. In 1990, the County began a

campaign to eliminate package treatment plants. Fifty - three

package treatment plants were eliminated after being identified

as threats to the Indian River Lagoon, pursuant to the Indian

River Lagoon Act. Another 17 were eliminated because they did

not comply with Departm ent of Environmental Protection (DEP)

standards, or had become mechanically obsolete and prone to

fail ure . The County has focused on extending sewer service in

the primary USD in order to reduce the need for new package

treatment plants to serve development.

47 . By 2006, the County had eliminated 70 package

treatme nt plants. There are only 19 package t reatment plants in

the County, and few, if any, have been approved and permitted in

the County since 1990.

48 . Existing FLUE Policy 4.7C.2 is titled " Evaluation of

urban uses near I - 95 interchanges, " and requires the County to

" have completed an evaluation of potential urban uses in the

vicinity of the I - 95 interchanges with CR 708 and CR 714 " by

2012 - 2013, and requires that " [t]he results of these studies

shall be incorporated into the [Comprehensive Plan] via Plan

Amendment. " The Plan Amendment deletes FLUE Policy 4.7C.2.

49 . Martin County Principal Planner, Samantha Lovelady,

produced a memorandum on Expressway Nodes in support of the Plan

Amendment. The memorandum does not state that it was prep ared

to implement FLUE Policy 4.7C.2, nor did Ms. Lovelady testify

that she prepared it pursuant to that p olicy.

50 . To the extent that the memorandum " evaluates potential

urban uses " at the specified intersections, it concludes that

the services at Kann er Highway, the rest area on I - 95, and

services available along I - 95 just north in St. Lucie County and

just south in Palm Beach County, all of which developed since

the policy was adopted in 1985, have rendered the designation

unnecessary. The memorandum concludes that the " original goal

of this policy [to provide services to the public traveling

through the County on I - 95] has been achieved. "

51 . FLUE Section 4.2.A(9)(b) of the Comprehensive Plan

finds that based on an evaluation of the Future Land Use Map

(FLUM) in 2009, the " raw data appear to show a significant

deficit of commercial land necessary to accommodate economic

needs. " Further, the section provides, " [a] ny attempt to remedy

the deficits should b e based on geographic area in order to

reflect sustainability principles and provide population centers

with necessary services in an orderly and timely fashion. "

52 . Petitioner argu es the County deleted the Expressway

Node s overlay despite this data sho wing a deficit of available

commercial property.

53 . The lands within the Expressway Nodes overlay have a

FLU M designation of Agriculture, not Commercial. Further, there

are several preconditions necessary for any of the property at

those interchanges to be developed for commercial use, including

a market demand study, PUD rezoning approval, and in the case of

SE Bridge Road and SW Martin Highway west of the interchange, a

required plan amendment to reclassify those roadways as major

arterials. The evide nce does not support a finding that

elimination of the Expressway Nodes overlay would remove

property from the County ' s commercial land use inventory.

54 . Furthermore, this section speaks to providing

necessary services to " population centers. " Neither of the I - 95

interchanges at SE Bridge Road or SW Martin Highway is a

population center.

B. Internal Consistency

55 . Petitioner further challenges elimination of the

Expressway Nodes as contrary to section 163.3177 (2), which

requires all element s of a comprehensive plan to be consistent

with each other.

56 . Petitioner alleges that the Plan Amendment creates an

i nconsistency with FLUE Goal 4.2 " [ T ] o alleviate the negative

impacts of inadequate public facilities and services and

substandard structures for affected areas in the County. "

Petitioner ' s expert testified that removal of the Expressway

Nodes designation will result in a lack of facilities to meet

the needs of future travelers " as demand begins to evolve. "

57 . T he objectives and po licies implementing FLUE Goal 4.2

speak directly to areas in need of redevelopment, including

creation of Community Redevelopment Areas. There is no evidence

to support a finding that the SW Martin Highway and SE Bridge

Road interchanges are areas in need of redevelopment.

58 . Next, Petitioner contends the Plan Amendment is

inconsistent with FLUE Policy 4.7A.5 , which provides, in

pertinent part:

Policy 4.7A.5. Development options outside

urban service districts. Martin County

shall provide reasonable an d equitable

options for development outside the urban

service districts, including agriculture and

small - scale service establishments necessary

to support rural and agricultural uses.

A small - scale service establishment shall be

defined as a small, compact , low intensity

development within a rural area containing

uses and activities which are supportive of,

and have a functional relationship with the

social, economic and institutional needs of

the surrounding rural areas.

Petitioner ' s expert provided only conclusor y testimony that the

removal of the Expressway Nodes designation is inconsistent with

this p olicy.

59 . FLUE Policy 4.7A.5 requires the County to allow some

opportunity for development outside the USDs. There is no

evidence on which to base a finding that the Expressway Nodes

designation is the only allowance for development outside the

USDs, thus removal of the designation does not conflict with

t his policy.

60 . Further, the Expressway Nodes designation, by its

plain language, was created to serve the needs of the public

traveling through the County. Deletion thereof does not

conflict with a policy requiring some development to serve the

needs of rural residents and businesses .

61 . FLUE Goal 4.8 requires of the County, as follows:

To encourage energy conservation and promote

energy - efficient land use and development

that implements sustainable development and

green building principles.

62 . Petitioner contends the Plan Amendment is inconsistent

with this goal because travelers faced with congested facilities

will travel further into the County along the intersecting

roadways to find the desired services, thus increasing traffic

and travel times, as well as use of hydrocarbons.

63 . The expert ' s testimony on this issue conflicts with

his opinion that travelers faced with congested interchanges

will either skip the interchange altogether, or re - enter I - 95 to

look for services at another inte rchange. On this issue, the

expert ' s opinion is not accepted as credible.

64 . It is unreasonable to assume that a traveler would

exit I - 95 at an interchange which advertises no services and

travel some distance on the crossro ad in search of said

service s.

65 . Further, Goal 4.8 is implemented by objectives and

policies which provide guidance for the County ' s land

development regulations and which encourage green building

standards and renewable energy resources. Petit ioner appears to

be taking the g oal out of context.

66 . Finally, Petitioner cites FLUE Goal 4.10 and Policy

4.10B.2 as inconsistent with the Plan Amendment. The provisions

read as follows:

Goal 4.10. To provide for adequate and

appropriate sites for commercial land uses

to serve the needs of the County ' s

anticipated residents and visitors.

* * *

Policy 4.10B.2. Criteria for siting

commercial development. Commercial

development shall be strategically directed

to areas best able to accommodate its

specific requirements of land area, site,

public facilities and market location. The

aim is to promote efficient traffic flow

along thoroughfares, achieve order ly

development and minimize adverse impacts on

residential quality.

67 . Members of the public traveling through the County to

other destinations are neither anticipated residents of , nor

anticipated visitors to , the County.

68 . The Expressway Nodes de signation was created to serve

the " immediate and unique needs of the public traveling through

the County. "

69 . At hearing, Petitioner argued that the Plan Amendment

was also inconsistent with provisions of the Economic

Development Element of the County ' s plan. Inasmuch as

Petitioner did not plead that issue in its Petition for Formal

Administrative Hearing, the undersigned does not make any

findings relevant thereto. 3/

C. Balance of Uses

70 . Se ction 163.3177(1) provides, in pertinent part, as

follows:

(1) The comprehensive plan shall provide

the principles, guidelines, standards, and

strategies for the orderly and balanced

future economic, social, physical,

environmental, and fiscal development of the

area that reflects community commitments to

implem ent the plan and its elements.

71 . This section applies to the County ' s Comprehensive

Plan as a whole. No evidence was introduced to support a

finding that the Comprehensive Plan, as a whole, fails to

provide principles, guidelines, standards , and strat egies for

the orderly and balanced future economic, social, physical,

environmental, and fiscal development of the County.

72 . Section 163 .3177(6)(a)4. provides as follows:

The amount of land designated for future

planned uses shall provide a balance of uses

that foster vibrant, viable communities and

economic development opportunities and

address outdated development patterns, such

as antiquated subdivisions. The amount of

land designated for future land uses should

allow the operation of real estate markets

to provide adequate choices for permanent

and seasonal residents and business and may

not be limited solely by the projected

population.

73 . The Plan Amendment does no t change the amount of land

designated for any particular F LUM category. The Plan Amendment

makes no change to the FLUM.

74 . Assuming, arguendo, that elimination of the Expressway

Nodes overlay changes the amount of land designated for

commercial use, th at single change does not render the

Comprehensive Plan out of balance or unable to foster vibrant,

viable communities.

75 . The public traveling through Martin County to other

destinations are neither permanent nor seasonal residents or

businesses.

IV. W astewater Treatment Options

76 . The Plan Amendment makes a number of changes in the

wastewater treatment options available to se rve development in

the County.

77 . Within the primary USD, FLUE Policy 10.1A.2 requires

all ne w subdivisions of less than one acre to be served by

regional sewer. Under the existing Comprehensive Plan, only new

subdivisions within the primary USD exceeding two units /acre

must connect to regional sewer systems.

78 . FLUE Policies 4.7B.1 and 10.1A.2 prohibit the

extension of regio nal sewer service into the secondary USD.

Thus, new development in the secondary USD is limited to septic

service (because package treatment plants are eliminated in

another section of the Plan Amendment) .

79 . FLUE Policy 10.2A.7 increases the threshold size of

lots within new subdivisions which may be developed on septic

systems. Where the existing Comprehensive Plan allows new

subdivisions of half - acre lots to develop on septic, the Plan

Amendment requires a minimum one - acre lot. Further, new

developm ent qualifies only if it is more than one - quarter mile

from regional sewer system collection or transmission lines.

80 . Within the primary USD, approximately 100 undeveloped

lots are located more than one - quarter mile from a connection

point to the County ' s regional sewer service.

81 . FLUE Section 10.2.B prohibits development within the

USDs on septic systems where regional sewer systems are

available (i.e., within one - quarter mile of a regional service

line) . The same policy limits development on septi c systems

outside the USDs to " low density residential as permitted by the

underlying future land use designation and small scale service

establishments necessary to support rural and agricultural

uses. "

82 . FLUE Policy 10.1C.4 prohibits approval of devel opment

orders " where adequate water and sewer facilities cannot be

provided. " Similarly, FLUE Policy 10.1A.10 provides that

development " shall not be approved where adequate regional water

and sewage facilities cannot be provided, unless the development

c an meet the requirements for a [septic] system found in Policy

10.2A.7. "

83 . Finally, FLUE Policy 10.2A.8 limits the maximum flow

of septic systems to 2,000 gpd per lot.

84 . Taken together, the changes generally limit the type

and density of future development allowed in the County.

85 . Within the primary USD, the Plan Amendment requires

more dense development to connect to regional sewer systems

while limiting use of septic systems to the lowest density

development. Overall, the Plan Amendment e ncourages higher

density future development and prioritizes regional service.

These changes are consistent with the County ' s existing " urban

containment policy " concentrating urban development within the

primary USD.

86 . In the secondary USD, the Plan A mendment restricts

future development to low density (one - acre lots) where regional

service is not available within one - quarter mile, and requires

all future development within one - quarter mile to connect.

These changes have little practical effect becaus e most of the

secondary USD is slated for future development at a rural

density of one unit / two acres, with so me estate densities at one

unit/ acre.

87 . Outside the USDs, the Plan Amendment limits future

development to low density residential, and limited commercial

development to serve rural and agricultural needs, on septic

systems.

88 . Petitioner ' s challenge focuses primarily on, and the

majority of evidence introduced related to, the 2,000 gpd limit

on septic tank flow. Petitioner challenges FLUE Policy 10.2A.8

and Section 10.2.B.2 on a number of grounds, each of which is

taken in turn.

A. Data and Analysis

89 . Section 163.3177 requires plan amendments to " be based

upon relevant and appropriate data and an analysis by the local

government. " The statute provides, " [t]o 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 amendment at issue. Id.

90 . Further, " dat a must be taken from professionally

accepted sources. " § 163.3177(1)(f)2. The statute does not

require original data collection by local governments.

91 . A septic system flow rate is the liquid flow rate of

non - solid wastes (effluent) coming out of the residential or

non - residential septic system after initial treatment . Septic

systems are typically sized based on the flow rate.

92 . When the Comprehensive Plan was first adopted in 1982,

the County adopted a maximum flow rate of 2,000 gpd .

93 . The 2,000 gpd standard was also the standard for the

State of Florida at the time it was adopted by Martin County.

94 . In 1993 , the Legislature amended the state standard to

allow maximum flows of 10,000 gpd for all uses . See ch. 93 - 151

§ 1, Fla. Laws. In 1998, the state standard for commercial

facilities was reduced to 5,000 gpd , where it remains today .

See ch. 98 - 151, § 7, Fla. Laws.

95 . Martin County did not adopt the state standard when it

changed in either 1993 or 1998. The County maintained its lower

maximum rate based on experience with septic system failures

associated with poor maintenance, particula rly of larger systems

and commercial establishments, such as restaurants.

96 . The state standard was adopted b y the County in its

2009 EAR amendments , which became effective in January 2011.

Thus, the 2,000 gpd standard governed development in Martin

County for almost 30 years.

97 . Despite the lengthy history of the 2,000 gpd standard

in Martin County, the under signed must find that the 2009 change

to the higher state standards were supported by data and

analysis since that change was found " in compliance " in 2011.

Thus, the 2015 change back to the 2,000 gpd standard must

likewise be based on data and analysis.

98 . The County identified protection of its ground and

surface water bodies from contaminants associated with septic

system effluent as the main reason for the change.

99 . In response to the Clean Water Act and the Florida

Watershed Restoration Act, DEP implemented the Total Maximum

Daily Load (TMDL) program. The program identifies water bodies

which are " impaired " for a particular pollutant (i.e., exceeds

the water body ' s capacity to absorb the given pollutant and

still function for its designated use) , and requires development

of Basin Management Action Plans (BMAPs) to restore impaired

waters.

100 . There are 32 impaired water bodies in Martin County.

Among them are the St. Lucie Estuary and the Indian River

Lagoon , which is part of the estuary . Bo th the estuary and the

lagoon are impaired for nitrogen, among other contaminants.

101 . The lagoon is a brackish - water environment in which

phosphorus occurs in high levels. The growth of algae and other

microorganisms is limited in that environment by t he

avai lability of nitrogen in the eco system. Nitrogen is a

" limiting factor. " When too much nitrogen is present, algae and

other microorganisms become overgrown. An overgrowth of algae

consumes excessive amounts of oxygen and dissolved oxygen in the

marine environment, a primary indicator of water quality.

102 . DEP adopted the TMDL for total nitrogen demand for

the estuary in March 2009. The BMAP developed for the estuary

includes both construction of stormwater management projects and

conversion of particularly - identified developments from septic

systems to regional wastewater service.

103 . In March 2013, the County identified first priority

stormwater projects at a cost of $15,790,000, and second

priority projects at a cost of $17,990,000. The County also

identified ten subdivisions to prioritize for conve rsion from

septic to sewer service at a cost of $88,140,000. Together with

identified flood control projects, in 2013, Martin County

estimated a grand total of $142,445,000 in projects to implement

the BMAP.

104 . T he County has extended sewer service to

approximately 1,800 properties, converting approximately eight

developments from septic to sewer service .

105 . Effluent from s eptic systems is only one source of

nitrogen pollution to surface water bodies . Ag riculture (from

both fertilizer and animal waste), residential fertilizer, pet

waste, and " atmospheric " nitrogen, are other sources of nitrogen

pollution. A 2009 study by the Department of Health concluded

that management of nitrogen sources, including septic syst ems,

" is of paramount concern for the protection of the

environment. " 4/

106 . Initial treatment of raw wastewater occurs in the

septic tank chamber, where solids settle to the bottom and

liquids are separated from the solids. In this anaerobic

(absent o xygen) state, the wastes are converted mainly to

ammonia and ammonium (inorganic nitrogen). Septic tank effluent

is then discharged to a drain field where nitrification occurs

in an aerobic environment. Nitrification converts ammonium to

nitrates i n oxyg en - rich unsaturated soils . Soils do not absorb

nitrates, and much of the nitrates migrate to ground and surface

waters causing contamination.

107 . If nitrogen remains in the oxygen - rich soil, it c an

be converted to nitrogen gas and eliminated through the

atmosphere through the denitrification process . Carbon and

other minerals must be present in the soil for denitrification

to occur. Denitrification is also a slow process that occurs

only in the vata zone, the oxygen - rich soil between the bottom

of the drainfield and the top of the water table.

108 . The data and analysis, as well as the testimony

presented at the final hearing, conflicted on the issue of how

much nitrogen is removed from septic tank efflu ent through

denitrification in S outheast Florida, w h ere soils are well -

drained, but the water table fluctuates seasonally.

109 . In September 2013, a study prepared for DEP estimated

the amount of nitrogen load from removed septic systems to

surface water bodies in Martin County, as well as the c ities of

Stuart and Port St. Lucie. The study " shows that the load

estimates are strongly correlated with nitrogen concentrations

in surface water quality data, suggesting that septic load is a

significant factor for water quality deterioration. " 5/ In Martin

County, where septic system removal was small scale, the study

traced a majority of the removed nitrogen to specific water

bod ies. 6/

110 . The study found that the amount of nitrogen load is

controlled by three factors: (1) length of flow path; (2) flow

velocity; and (3) drainage conditions. The following excerpt is

instructive:

Figure ES - 4 shows that the load estimate

decrease s with the mean length of flow

paths; the two largest loads per septic

system are for North River Shores and

Seagate Harbor [in Martin County] where the

flow paths are the shortest. . . . This is

reasonable because longer flow paths result

in more denitri fication and thus smaller

load estimate. In line with this, larger

flow velocity corresponds to shorter travel

time and thus smaller amount of

denitrification and larger amount of load.

. . . Figures . . . indicate that the

setback distance should be det ermined not

only by the distance between septic systems

to surface water bodies but als o by

groundwater flow conditions (the distance

probably plays a more important role here).

The groundwater flow conditions are closely

related to soil drainage conditio ns at the

modeling sites.

111 . An October 2013 paper by Kevin Henderson, P.E.,

reviewed four studies between 1993 and 2011, and concluded that

" [n]one of the studies are specific enough to [Southeast

Florida] soils/groundwater aquifer to be definitive as regards

nitrate nitrogen ' s fate once it becomes part of groundwater

below a drainfield. " 7/ Henderson maintains that the Southeast

Florida groundwater aquifer is low - flux. Henderson further

reported that studies have shown that anticipated n itrogen and

total nitrogen groundwater contamination " is consistently absent

at distances of more than 40 feet from drainfields. " 8/

112 . The County ' s soil and water expert, Catherine Riiska,

disagreed, maintaining the Southeast Florida water table is

seas onally - dependent, and fluctuates greatly between the wet and

dry seasons. During the wet season, Ms. Riiska explained the

drainage system is insufficient to keep the water table low

during the rainy season. When the water table is high, there is

little o pportunity for denitrification and nitrates can be

pulled directly into the water flow.

113 . While the experts disagreed as to how much nitrogen

may be removed from septic tank effluent in Southeast Florida,

the experts agreed that limiting the amount of potential flow

from septic tanks will limit the amount of potential discharge ,

especially in the event of a failure of the system .

114 . Petitioner contends that the 2,000 gpd standard does

not react appropriately to the data and analysis because it does

not take into account factors other than effluent volume that

contribute to total nitrogen loading from septic systems, such

as distance to surface water bodies and size of area served by

the septic system.

115 . The 2,000 gpd standard applies equally throughout the

County regardless of location in proximity to surface water

bodies.

116 . Septic systems can be regulated based on either flow

or loading. Loading would be expressed in gallons per measure

of property, such as gallo ns per acre per day. The County ' s

Director of Utilities and Solid Waste, John Polley, agreed that,

in terms of environmental impact, loading is a superior measure

to flow rate.

117 . The County is not required to adopt the superior

measure for environment al protection, but to adopt a measure

which is supported by data and analysis.

118 . Finally, Petitioner contends that the 2,000 gpd

standard is not based on data and analysis because it was chosen

arbitrarily, without considering some less restrictive flow

limit such as 3,000 gpd or 4,000 gpd.

119 . The 2011 change from the 2,000 gpd flow limitation to

the higher maximum state standar d was not supported by the

Martin County Health Department .

120 . Robert Washam, a retired Environmental Administrator

for the Martin County Health Department with more than 30 years '

experience permitting and regulating septic systems in Martin

County, t estified and submitted in writing to the County as to

his sup port for the change to 2,000 gpd . He iterated several

reasons for his support, including the serious public health and

environmental issues that can result from the failure of large

septic syste ms; the documented failur es of large systems inside

the primary USD resulting in raw sewage flowing into wetlands,

ditches, and eventually rivers; and the unsuitable soils and

water table conditions for large septic systems in rural areas

of the County. 9/

121 . Section 3 81.0065(4)(e) provides as follows:

(e) Onsite sewage treatment and disposal

systems must not be placed closer than:

1. Seventy - five feet from a private potable

well.

2. Two hundred feet from a public potable

well serving a residential or nonresidential

establishment having a total sewage flow of

greater than 2,000 gallons per day.

3. One hundred feet from a public potable

well serving a residential or nonresidential

establishment having a total sewage flow of

less than or equal to 2,000 gallons per day.

4. Fifty feet from any nonpotable well.

122 . Peti tioner ' s wastewater expert, Richard Creech,

acknowledged in his testimony that these thresholds reflect that

there is an opportunity for contamination of the public wat er

wells by the larger septic systems.

123 . Mr. Creech also agreed that, if a s eptic system is

not properly maintained, functioning, designed, and sited, it

may presen t a problem to surface waters.

124 . Petitioner did not prove that the 2,000 gpd standa rd

would not protect ground and surface waters from nitrogen

loading. That issue is clearly a subject of fair debate.

B. Balance of Uses/Operation of Real Estate Markets

125 . Section 163.3177(1), provides, in pertinent part:

T he comprehensive plan shall provide the

principles, guidelines, standards, and

strategies for the orderly and balanced

future economic, social, physical,

environmental, and fiscal development of the

area that reflects community commitments to

implement the plan and its elements .

126 . This section applies to the County ' s Comprehensive

Plan as a whole. No evidence was introduced to support a

finding that the Comprehensive Plan, as a whole, fails to

provide principles, guidelines, standards , and strategies for

the orderly and ba lanced future economic, social, physical,

environmental, and fiscal development of the County.

127 . Section 163.3177(6)(a)4. provides that the amount of

land designated for future planned uses " shall provide a balance

of uses that foster vibrant, viable c ommunities and economic

development opportunities and address outdated development

patterns. "

128 . Petitioner contends the County failed to consider the

economic impact of reducing the septic system flow rate to 2,000

gpd. Petitioner introduced no eviden ce regarding the effect of

the 2,000 gpd limit on the future economic development of the

County, only that the County failed to conduct economic analysis

thereof.

129 . While the County conducted no formal economic

analysis of the change, the County clearl y considered the effect

of that limit on type and size of future development in the

County.

130 . The 2,000 gpd flow limitation was not a significant

development constraint during the nearly 3 0 years that it was in

effect.

131 . Septic system size determinations are governed by

Florida Administrative Code Rule 64E - 6.008. The rule associates

a specific gpd rate for each type of commercial, industrial, and

residential establishment, based on factors such as the number

of seats or p atrons, number of employees, and number of

bedrooms.

132 . A four - bedroom home up to 3,300 square feet can be

developed on a septic system with a 400 gpd flow rate, well

within the 2,000 gpd flow established under the Plan Amendment.

A 2,000 gpd flow rate will accommodate a 650 - seat church without

regular meal service (or 580 seats with weekly meal

preparation), a 200 - room hotel, and a 13,000 square foot office

building.

133 . The substantial expansion of the County ' s regiona l

wastewater system inside the primary USD has reduced the

prospective amount of future development on septic systems.

Approximately 100 acres designated for non - residential use are

beyond one - quarter mile from sewer availability from Martin

County. All other future non - residential d evelopment in the

primary USD will be unaffected by the septic system flow

limitation.

134 . The flow limitation does not prohibit more intensive

non - residential development in the primary USD. Rather, it

encourages developers to expend funds to connect to the regional

system so that increased intensity may be obtained.

135 . The flow limitation will have limited, if any , impact

on the balance of allowab le uses in the secondary USD. The low

densities and the lack of any approved commercial uses in that

D istrict make higher septic flows unnecessary.

136 . The same is true for areas outside the USDs, where

future development is limited to a gricultural , very low density

residential ( one unit /20 acres ), and some minor commercial land

use s. H igher flow septic systems are also unnecessary in that

area.

137 . Based on concerns expressed by agricultural interests

during the adoption process, the Plan Amendment allows

agricultural us es to exclude consideration of a septic system

associated with a residence o n the same site. Thus, the County

considered the impact of the flow limitation on the predominant

industry in the County.

C. Miscellan e ous Issues

138 . In its Petition, Petitioner also raised the issue of

whether the deletion of FLUE Policy 4.13.A8 is inconsistent with

the Future Land Use Map which retains the overlay designation.

Petitioner did n ot present any evidence on this issue. Thus,

Petitioner did not prove the allegation beyond fair debate.

CONCLUSIONS OF LAW

139 . The Division of Administrative Hearings has

jurisdiction over the subject matter and parties hereto pursuant

to sections 120. 569, 120.57(1), and 163.3184(5) .

140 . To have standing to challenge or support a plan

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

se ction 163.3184(1) (a). Petitioner is an affected person within

the meaning of the statute.

141 . " I n compliance " means " consistent with the

requirements of §§ 163.3177, 163.3178, 163.3180, 163.3191,

163.3245, and 163.3248, with the appropriate strategic regional

policy plan, and with the principles for guiding development in

designated areas of critical state concern and with part III of

chapter 369, where applicable. " § 163.3184(1)(b), Fla. Stat.

142 . The " fairly debatable " standard, which provides

d eference to the local government ' s disputed decision, applies

to any challenge filed by an affected person. Therefore,

Petitioner bear s the burden of proving beyond fair debate that

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 Cnty. v. Yusem , 69 0 So.

2d 1288, 1295 (Fla. 1997).

143 . The standard of proof to establish a finding of fact

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

Stat.

144 . Section 163.3177(1)(f) requires plan amendments to be

" based upon relevant and appropriate data and analysis " by the

local government, and includes " surveys, studies, community

goals and vision, and other data available at the time o f

adoption. " Data must be taken from professionally - accepted

sources. § 163.3177(1) (f) 2., Fla. Stat. A local government is

not required to collect original data, but may do so if the

methodologies are professionally accepted. Id .

145 . 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 amendment. " § 163.3177(1)(f), Fla. Stat.

146 . With regard to eli mination of the Expressway Nodes

overlay, Petitioner did not prove beyond fair debate that the

change was not supported by data and analysis. Removing the

potential for commercial development in areas outside of the

USDs is supported by the County ' s " urba n containment " policy and

consistent with the County ' s decision to limit the use of

package plants for treatment of wastewater. The undersigned

cannot conclude that the County has an obligation to provide

services to the traveling public, as that issue is at least a

subject of fair debate. Although Petitioner proved increases in

the AADT through the affected interchanges, that data does not

support a finding that additional services are required.

147 . As to the 2,000 gpd septic flow limit, Petitioner did

not prove, beyond fair debate, that the reduction in allowable

flow will not achieve the County ' s goal of protecting its ground

and surface waters from nitrogen loading. Petitioner did

demonstrate regulating septic size in relation to the location

of pro ximity to a surface water body may be a less restrictive

means of accomplishing that goal. However, the County is not

under an obligation to impose the least restrictive means of

regulation.

148 . Petitioner also introduced evidence that a septic

system l oading approach, rather than a septic system flow

approach, would be a superior method for environmental

protection.

149 . However, a compliance determination is not a

determination of whether a comprehensive plan amendment is the

best approach available to the local government for achieving

its purpose. See Pacetta v. Town of Ponce Inlet , Case

No. 09 - 1231 (Fla. DOAH Mar. 20, 2012; DEO June 19, 2012)( plan

amendment prohibiting dry dock storage in specifi ed area is " in

compliance " even though dry dock storage is superior to wet dock

storage for protect ing marine life ); Volusia Cnty. v . Dep ' t of

Comm. Aff. , Case No. 07 - 5107 (Fla. DOAH Sept. 22, 2009; DCA

July 12, 2010)( plan amendment " in compliance " although the

traffic impact studies used a land use code from the DOT trip

generation manual which was less statistically - reliable than the

one preferred by DOT, but was still professionally - acceptable);

Manasota - 88 v. Dep ' t of Comm. Aff. , Case No. 02 - 3897 (Fla. DOAH

M ay 14, 2004; DCA Aug. 13, 2004)( plan amendment " in compliance "

although the local government designated wildlife greenway could

have been larger to accommodate more species); McSherry v.

Alachua Cnty. , Case No. 02 - 2676 (Fla. DOAH Oct. 18, 2004; DCA

May 22 , 2005) , aff ' d , 903 So. 2d 194 (Fla. 1st DCA 2005) (while

the County would have been better served to refine its

definition of " strategic ecosystem " to include standards set

forth elsewhere in the plan, the failure to do so does not

invalidate the definitio n under the " fairly debatable "

standard); and Geraci v. Dep ' t of Comm. Aff ., Case No. 95 - 0259

(Fla. DOAH Oct. 14, 1998 ; DCA Jan. 13, 1999) , aff ' d , 754 So. 2d

35 (Fla. 1 st DCA 1999) (plan amendment " in compliance " although

Petitioner presented data and analysis that supported a

different land use classification for his property than the one

chosen by the County). As well stated by A dministrative Law

Judge Stevenson in Geraci , " Petitioner ' s burden was not to show

that [Petitioner ' s preferred land use classification ] was

better, but that [the assigned land use classification] was non -

compliant to the exclusion of fair debate. "

150 . Petitioner did not prove beyond fair debate that the

2,000 gpd limit was not based on data and analysis.

151 . Petitioner failed to prove beyond fair debate that

either the elimination of the Expressway Nodes overlay or

imposition of the 2,000 gpd flow standard was violative of

section 163.3177(1), which requires the Comprehensive Plan as a

whole to provide for " the orderly and balanced future economic,

social, physical, environmental, and fiscal development " of the

County.

152 . Petitioner did not prove beyond fair debate that the

Plan Amendment violated section 163 .3177(6)(a)4., requir ing a

balance of uses to foster vibrant, viable communities and

economic development opportunities. Petitioner established that

the County performed no economic analysis of the impact of the

proposed changes, but has cited no authority requiring said

anal ysis. In the case of the 2,000 gpd flow standard, the

evidence showed that the County specifically considered the

economic impact on the agricultural sector of the economy.

153 . Finally, Petitioner did not prove beyond fair debate

that the Plan Amendmen t created any internal inconsistencies

with other parts of the Comprehensive Plan. Most of the

provisions cited by Petitioner with which the Plan Amendment

were allegedly in conflict were taken out of context, or

otherwise inapplicable.

Conclusion

154 . For the reasons stat ed in the F indings of F act, the

Petitioner has not proven beyond fair debate that the Plan

Amendment is not in compliance with the specified provisions of

c hapter 163.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Economic

Opportunity enter a final o rder determining that Plan Amendment

CPA 14 - 6, adopted by Martin County on December 16, 2014, is " in

compliance , " a s that term is defined by section 163.3184(1)(b).

DONE AND ENT ERED this 1st day of September , 2015, in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of September , 2015.

ENDNOTES

1 / Except as otherwise provided herein, all references to the

Florida Statutes are to the 201 4 version , which was in effect

when Ordinance 965 was adopted.

2 / A number of other Petitioners , including Turner Groves, LP;

Tesoro Groves, LP; Kai - Kai, LLC d/b/a Kai Kai Farms; Seminole

Land Co.; Agri - Gators, Inc.; Long Land Co., Inc.; Bull Hammock

Ranch, Ltd.; Turnpike Dairy, Inc.; Hobe Sugar, LLC; and Star

Farms Corp., also challenged the Plan Amendment. The cases were

subsequently consolidated under C ase No. 1 5 - 0229 GM. The other

Petitioners ' challenges were subsequently settled and dismissed.

For purposes of this Recommended Order, Martin County Land Co.

is the sole Petitioner.

3/ A petitioner is limited to issues that are timely raised and

is bound by allegations in its petition. See Sunset Dr .

Holdings, Inc. v. City of Lake Worth , Case No. 10 - 1973GM,

*21 n.4 (Fla. DO AH Mar. 24, 2011; Fla. DCA Apr. 28, 2011)

(Petitioner ' s allegatio n that City violated specified sections

of Florida Administrative Code Rule 9J - 11, which were not raised

in Petitioner ' s third amended petition or by stipulation of the

parties, were untimely); Burgess v. Dep ' t. of C m ty . Aff. , Case

No. ACC - 10 - 008 (Fla. ACC Feb. 24, 2011)(ALJ not required to make

finding s of fact about Petitioner ' s allegation regarding the

planning period of the Coastal Management Element where

Petitioner did not identify that issue in either the amended

petition or the joint prehearing stipulation); St. George

Plantation Owners ' Ass ' n v. Franklin Cnty . , Case No. 9 6 - 5124GM

(Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 25, 1997) (Petitioner ' s

argument on internal inconsistency of the comprehensive plan

raised for the first time at the hearing was untimely and was

disregarded by the ALJ); Heartland Env tl. Council, Inc. v.

D ep ' t. of C m ty . Aff. , Case No. 94 - 2095GM (Fla. DOAH Nov. 16,

1996; Fla. DCA Nov. 25, 1996)(Petitioner is limited to the

specific plan elements cited in the Petition, as narrowed by the

Prehearing Stipulation, as evidence to support its broad

allegation that the amended plan did not " meet minimum criteria

and State requirements for protection of identified biological

communities, cultural resources and groundwater from

contamination . " ); C f . Heston v. City of Jacksonville , Case

No. 03 - 4283 (Fla. DOAH Mar. 5, 2 004; Fla. ACC Sept. 22, 2004)

(Respondent ' s contention that specified policies of the

challenged plan raised for the first time in a post - hearing

filing is untimely).

4/ Florida Onsite Sewage Nitrogen Reduction Strategies Study,

Final Report, Hazen and Sawyer (October 2009).

5/ Estimation of Nitrogen Loading from Removed Septic Systems to

Surface Water Bodies in the City of Port St. Lucie, the City of

Stuart, and Martin County, Ming Ye and Huaiwei Sun (Department

of Scientific Computing, Florida State University, September

2013) , p. iv.

6/ Id.

7 / " Septic systems total nitrogen loading and potential

groundwater pollution related to nutrient enrichment of SE

Florida Coastal Estuaries [Draft], " Evergreen Engineering, Inc.,

Kevin Henderson, P.E. (October 2013).

8/ Id.

9 / Petitioner ' s planning expert agreed that information provided

by a citizen with significant expertise in an area may

constitute data and analysis upon whic h a plan amendment is

based and, depending upon the citizen ' s expertise and

credentials, would be considered a professionally acceptable

source.

COPIES FURNISHED :

Gregory M. Munson, Esquire

Gunster, Yoakley and Stewart, P.A.

215 South Monroe Street , Suite 601

Tallahassee, Florida 32301

(eServed)

Brian M. Seymour, Esquire

Gunster, Yoakley and Stewart, P.A.

777 South Flagler Drive , Suite 500 East

West Palm Beach, Florida 33401

(eServed)

Mary K. Vettel

Martin County Board of County Commissioners

2401 Southeast Monterey Road

Stuart, Florida 34996

Katie Zimmer, Agency Clerk

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Linda Loomis Shelley, Esquire

Buchanan Ingersoll & Rooney, PC

Fowler, White, Boggs, P.A.

101 North Monroe Street, Suite 1090

Tallahassee, Florida 32301

(eServed)

James W. Poppell, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Jesse Panuccio, Executive Director

Department of Economic Opportunity

107 East Madison Street , Caldwell Building

Tallahassee, Florida 32399 - 4128

(eServed)

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.