STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTIN COUNTY and SOUTH FLORIDA ) WATER MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 78-312

)

PAL-MAR WATER MANAGEMENT )

DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:00 A.M., on May 3, 1978, in Room 208, Non-Jury Courtroom, Martin County Courthouse,

100 East Ocean Boulevard, Stuart, Florida.

Petitioner, Martin County, was represented by John T. Carmody, Jr., Esquire, 50 Kindred Street, Stuart, Florida. Petitioner, South Florida Water Management District, was represented by John H. Wheeler, Esquire, Post Office Box V, West Palm Beach, Florida 33402. Respondent was represented by Madison

1. Pacetti, Esquire, Post Office Box 2775, Palm Beach, Florida 33480.

   
   

   While the proceedings to date have reflected Martin County and South Florida Water Management District as Petitioners and Pal-Mar Water Management District as Respondent, the actual alignment of the parties is somewhat different. Pal-Mar Water Management District (hereafter Pal-Mar) has applied to South Florida Water Management District (hereafter SFWMD) for approval of a surface water management system to serve approximately 3,600 acres of residential lands in Martin County known as Phase III of Pal-Mar Water Management District. Since Pal-Mar seeks the affirmative of the issue, that is approval of its permit application, it is in fact the petitioner in these proceedings.

   
   

   Martin County has filed its petition for formal proceedings objecting to the Pal-Mar application and is therefore, in fact, a party Respondent, having the burden of going forth to establish the substance of its objections. SFWMD is the agency involved, and having chosen to make an appearance as an interested party, is in fact a party Respondent to the proceedings.

   
   

   Martin County raises three points which it contends invalidate the favorable report filed by SFWMD's staff. First Martin County says that staff improperly treated the subject property as being zoned R2 instead of considering an agricultural trend of development, and that therefore, the proposed use is incompatible with existing zoning. Second, Martin County contends that the staff improperly relied upon a survey report prepared by the U.S. Army Corps of Engineers which was subsequently dropped by the Martin County Board of County Commissioners and Corps of Engineers. Finally, Martin County contends that

   because approval of the amended plan of reclamation under which Pal-Mar presently operates was obtained in part upon Pal-Mar's agreement to permanently and irrevocably withdraw its application to drain into the St. Lucie canal that the present application should be denied since it too seeks to discharge into the St. Lucie canal.

   
   

   The parties agreed that for the purposes of the hearing the resolution of the issues raised by Martin County would be determinative of the Hearing Officer's recommendation as to whether the permit should issue.

   
   

   FINDINGS OF FACT

   
   

   1. Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause.

      
      

   2. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the

      decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff.

      
      

   3. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with.

      
      

   4. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas.

   5. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist.

      
      

   6. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.

      
      

      CONCLUSIONS OF LAW

      
      

   7. Based upon the foregoing findings of fact, it is concluded that the proposed land use is compatible with the applicable zoning for the area, that the inclusion as background material of an abandoned report in the staff report does not affect the staff recommendation and that Judge Trowbridge's order of November 4, 1969, does not constitute a judicial prohibition which would preclude approval of the present application. Accordingly, it is

RECOMMENDED that the SFWMD staff report recommendation be adopted and that approval be granted for the proposed water management system subject only to the three conditions set forth in the staff report.

DONE and ENTERED this 20th day of June, 1978, in Tallahassee, Florida.

MICHAEL R. N. McDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1978.

COPIES FURNISHED:

John T. Carmody, Jr., Esquire

50 Kindred Street Stuart, Florida

John H. Wheeler, Esquire Post Office Box V

West Palm Beach, Florida 33402

Madison F. Pacetti, Esquire Post Office Box 2775

Palm Beach, Florida 33480

Charles C. Chillingworth, Esquire

230 Royal Palm Way, Suite 424 Palm Beach, Florida 33480

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE GOVERNING BOARD OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT

BOARD OF COUNTY COMMISSIONERS OF MARTIN COUNTY, FLORIDA,

Petitioner,

vs. CASE NO. 78-312

ORDER NO. 79-5

PAL-MAR WATER MANAGEMENT DISTRICT, and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Respondents.

/

FINAL ORDER

After being stayed on July 14, 1978 until disposition of Martin County's suit for judicial clarification of Judge Trowbridge's Order, this matter came to be heard before the Governing Board of the South Florida Water Management District on the 17th day of May, 1979. After consideration of the matter, the Governing Board adopts the Hearing Officer's Recommended Order including Findings of Fact and Conclusions of Law as its own except the Finding of Fact and Conclusion of Law concerning whether the proposed land use is compatible with zoning for the area are rejected as being beyond the jurisdiction of the Governing Board, and therefore beyond the jurisdiction of the Hearing Officer.

NOW THEREFORE, the Hearing Officer's Recommended Order is adopted as that of the Governing Board's except the Finding of Fact on the eighth line on page four, beginning "The evidence indicates . . ." through the next paragraph ending with ". . . such compatibility does not exist." and the Conclusion of Law on page five stating "that the proposed land use is compatible with the applicable zoning for the area," are rejected for the reasons given herein.

DONE and ORDERED at a Public Hearing held at best Palm Beach, Palm Beach County, Florida this 17th day of May, A.D., 1979.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GOVERNING BOARD

(Corporate Seal)

ATTEST:

By

Secretary

By

Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished Michael R.

N. McDonnell, Hearing Officer, Division of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32304; Charles Chillingworth, Esquire, Post Office Box 2167, Palm Beach, Florida 33480; John T. Carmody, Jr., County Attorney, Martin County Legal Department, Post Office Box 626, Stuart, Florida 33494, by mail, this 18th day of May, 1979.

S0UTH FLORIDA WATER MANAGEMENT DISTRICT

By

Thomas E. Huser, Assistant Secretary

Docket for Case No: 78-000312

Orders for Case No: 78-000312