STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DONNA MELZER and MARTIN COUNTY ) CONSERVATION ALLIANCE, INC., )
)
Petitioners, )
)
vs. )
) MARTIN COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) MARTIN COUNTY SCHOOL DISTRICT ) and CITY OF STUART, )
)
Intervenors. )
Case No. 02-1014GM
)
LLOYD BRUMFIELD and 1000 )
FRIENDS OF FLORIDA, INC., )
)
Petitioners, )
)
vs. )
) MARTIN COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents, )
)
and )
) MARTIN COUNTY SCHOOL DISTRICT ) and CITY OF STUART, )
)
Intervenors. )
Case No. 02-1015GM
)
RECOMMENDED ORDER
Notice was given and on June 3-6, 13-14, 25-26, and August 13-16, 2002, in Stuart, Florida, and by video/telephone
communication set up in Tallahassee and West Palm Beach, Florida, on September 12-13, and 16, 2002, pursuant to the authority set forth in Sections 120.569, 120.57(1), and 163.3184(9)(a), Florida Statutes, the final hearing was conducted by Charles A. Stampelos, Administrative Law Judge.
APPEARANCES
For Petitioners Donna Melzer and Martin County Conservation Alliance:
Richard J. Grosso, Esquire
Environmental & Land Use Law Center, Inc. Shepard Broad Law Center
3305 College Avenue
Fort Lauderdale, Florida 33314-7721
Joan Wilcox, Esquire
Environmental & Land Use Law Center, Inc. 2336 Southeast Ocean Boulevard, PMB 110
Stuart, Florida 34996-3319
Lisa Interlandi, Esquire
Environmental & Land Use Law Center, Inc.
224 Datura Street, Suite 201
West Palm Beach, Florida 33401-5630
For Petitioners Lloyd Brumfield and 1000 Friends of Florida:
Terrell K. Arline, Esquire 3205 Brentwood Drive
Tallahassee, Florida 32309-2705
For Respondent Martin County and Intervenor Martin County School District:
Linda Loomis Shelley, Esquire David Moyé, Esquire
Fowler White Boggs Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302-3240
For Respondent Martin County:
David A. Acton, Esquire
Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397
For Respondent Department of Community Affairs: Shaw P. Stiller, Esquire
Karen A. Brodeen, Esquire
Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Intervenor City of Stuart:
Carl Coffin, Esquire City Attorney
121 Southwest Flagler Avenue Stuart, Florida 34994-2139
STATEMENT OF THE ISSUE
Whether Martin County Comprehensive Plan Amendments Nos.
01-11 and 01-12, pertaining to school siting and public facilities, adopted by Martin County in Ordinance No. 606, on December 11, 2001, are "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes. (All citations to Florida Statutes are to the 2001 version unless otherwise
stated.)
PRELIMINARY STATEMENT
On December 11, 2001, the Board of County Commissioners of Martin County adopted Ordinance No. 606, which was comprised of three text amendments to the Martin County Comprehensive Plan
(Plan). The three Plan Amendments, Amendment No. 01-9 (Mixed Uses), Amendment No. 01-11 (School Siting), and Amendment No. 01-12 (Public Facilities), were found to be "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes, by the Department of Community Affairs (Department). The Department published the requisite notice of its intent to find the Plan Amendments "in compliance" on February 4, 2002.
On February 25, 2002, Petitioners, Donna Melzer (Melzer) and the Martin County Conservation Alliance, Inc. (MCCA) (hereinafter referred to as Petitioners unless otherwise indicated), filed a petition asserting that the three Plan Amendments were not "in compliance" with applicable laws and rules.
On February 25, 2002, Petitioners, Lloyd Brumfield (Brumfield) and 1000 Friends of Florida, Inc. (1000 Friends) (hereinafter referred to as Petitioners unless otherwise noted), filed a petition asserting that the school siting and the public facilities Plan Amendments were not "in compliance" with applicable laws and rules.
The Department referred the petitions to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge and the conduct of a hearing.
On March 22, 2002, the Department moved to consolidate the two cases which was granted on April 1, 2002.
Intervenor, Martin County School District (School Board), filed a Petition for Leave to Intervene in this proceeding on April 18, 2002, which was granted.
On May 14, 2002, Intervenor, City of Stuart, filed a Motion for Leave to Intervene, which was granted.
On May 20, 2002, Martin County filed a Notice of Demand for Expeditious Resolution, but requested no action on the motion be taken because the hearing was scheduled to commence within 30 days of filing of the notice.
On May 30, 2002, Petitioners Brumfield and 1000 Friends filed a Motion to Determine Issues or in the Alternative to Amend Petition, to which Martin County, the Department, and the School Board responded on May 30, 2002. On May 31, 2002, counsel for Brumfield and 1000 Friends filed a letter with the Division with an attached list of issues.
A telephonic hearing was held on the Motion on May 31, 2002, and a ruling on the issues was placed into the record of the proceedings at the commencement of the hearing on June 3, 2002. The ruling was that: 1) issues relating to the relevance of the stipulated settlement agreement entered into by Martin County, the Department, Sally O'Connell, and 1000 Friends in 1999, and the subsequent remedial amendments, were taken under advisement and could be raised in the proceedings and briefed in the proposed recommended orders; 2) the compliance with the
school siting and public facilities Plan Amendments with the provisions of Section 163.3180, Florida Statutes, was not properly pled, and therefore could not be raised in these proceedings; 3) Senate Bill 1906, adopted during the 2002 legislative session, is not applicable to these proceedings by its express terms; and 4) the undersigned acknowledged Petitioners' withdrawal of allegations that the Plan Amendments violated Section 163.3194, Florida Statutes, but Petitioners' case could proceed regarding compliance with Rule 9J-5.005(6), Florida Administrative Code, with a subsequent determination to be made regarding its weight.
On May 31, 2002, Petitioners filed a Unilateral Prehearing Stipulation, and Martin County, the Department, and the School Board filed a Prehearing Stipulation on the same date.
The case proceeded to hearing on June 3-6, 13-14, 25-26, and August 13-16, 2002, in Stuart, Florida, and by video/telephone communications set up in Tallahassee and West Palm Beach, Florida, on September 12-13, and 16, 2002.
Pursuant to Section 120.57(1)(b), Florida Statutes, public comment was received on August 16, 2002.
At the close of the final hearing, Petitioners moved to conform their pleadings with the evidence regarding whether the Plan Amendments complied with concurrency requirements. The motion is denied. However, the Recommended Order resolves the
issue of whether the Plan Amendments waive concurrency/Level of Service standards.
Petitioners Melzer and MCCA called the following witnesses: Nicki van Vonno, A.I.C.P. and Director of the Martin County Growth Management Department; Roxanne Manning, A.I.C.P.; Margaret Hurchalla; Donna Melzer; and D. Greg Braun. The following Melzer and MCCA exhibits were admitted into evidence: 12, 13, 24, 29, 32, 48a, 49-51, 52a, 52b, 52c, 56, 56a, 62a,
62b, 62d, 66, 66a, 68, 77, 119a, 125-127, 129, and 132-134.
Petitioners Brumfield and 1000 Friends called Charles Pattison, A.I.C.P., as a witness. The following Brumfield and 1000 Friends exhibits were admitted into evidence: 6 and 8-11.
Martin County and the School Board called Robert P. Frank, A.I.C.P.; J. Ross Wilcox, Ph.D.; Thomas G. Pelham, A.I.C.P.; James Sherman; Douglas Griffin; and Jonathan Ferguson. The following Martin County and School Board exhibits were admitted into evidence: 25, 31, 37a, 37b, 37c, 37d, and 40-42.
The Department called Kenneth Metcalf, A.I.C.P., Regional Planning Administrator for the Department, as a witness. The Department's Exhibit 1 was admitted into evidence.
Joint Exhibits 1-14 were admitted into evidence.
The Transcript of the final hearing, Volumes 1-28, was filed on October 15, 2002. Petitioners filed an agreed Motion to Extend Filing Period for Proposed Recommended Orders on
October 29, 2002, which was amended on October 30, 2002, to clarify the agreed motion to include any memoranda of law which would be filed by the parties. This Amended Motion was granted on November 1, 2002. All Proposed Recommended Orders and Memoranda of Law were timely filed on November 26, 2002. Also, the parties filed replies. All of the post-hearing submissions have been considered in the preparation of this Recommended Order.
On January 15, 2003, Martin County, Melzer, and MCCA, requested abatement of consideration of the Mixed Uses Plan Amendment No. 01-9 pending settlement and resolution of related issues. The request was granted. Thereafter, several status reports were filed and abeyance continued, including consideration of the other Plan Amendments. Ultimately, Martin County adopted a new Mixed Uses remedial Plan amendment which supercedes Plan Amendment No. 01-9. On June 27, 2003, the Petitioners in Case No. 02-1014, voluntarily dismissed their challenge to the Mixed Uses Plan Amendment No. 01-9 and to Part
IV of Ordinance No. 606.
The Parties
FINDINGS OF FACT
1000 Friends of Florida, Inc., is a Florida not-for- profit corporation. Its purposes include monitoring and
ensuring the proper implementation of the State's growth management laws.
1000 Friends has approximately 644 members in Martin County, which constitute a substantial percentage of its total membership.
1000 Friends' corporate purposes include the representation of its members in administrative proceedings involving the Growth Management Act, Chapter 163, Part II, Florida Statutes. The type of relief sought by 1000 Friends in this case is the type of relief 1000 Friends is authorized to seek on behalf of its members.
1000 Friends made oral and written comments to Martin County during the time period from the transmittal to the adoption of the Plan Amendments.
1000 Friends' employees have attended and participated in various development and planning activities in Martin County over the years. 1000 Friends has published articles in the local newspaper on planning issues. 1000 Friends was a party in the administrative proceeding over the adoption of the 1990 Martin County Comprehensive Plan, and was involved in the development of the stipulated settlement agreement adopted to settle that proceeding.
Lloyd Brumfield owns property and resides in Martin County, and submitted oral and written comments to Martin County during the review and adoption hearings on the Plan Amendments.
Martin County Conservation Alliance, Inc. is a not-for- profit Florida corporation and has approximately 100 members who live in Martin County, including Donna Melzer. Ms. Melzer resides with her husband in Palm City, Martin County, Florida. MCCA and Ms. Melzer submitted oral or written comments to Martin County during the review and adoption hearings on the Plan Amendments.
Martin County is a political subdivision of the State of Florida and is the local government that enacted the Plan Amendments under review. It is a coastal county located in the southeastern part of the State, on the Atlantic Ocean between Palm Beach County to the south, St. Lucie County to the north, and Okeechobee County, and Lake Okeechobee to the west.
Martin County contains four incorporated municipalities within its boundaries: the City of Stuart (the county seat), the Town of Sewall's Point, the Town of Jupiter Island, and the Town of Ocean Breeze Park. The overall size of the entire county is approximately 538 square miles, or 344,357 acres, with agricultural uses on approximately 72 percent of the land, residential uses on approximately 16 percent of the land, public conservation uses on approximately 6.5 percent of the land, and
other uses (e.g., commercial, industrial, and institutional) on the remaining 5.5 percent of the land. The current population of Martin County is approximately 125,300 residents.
The Department is the state land planning agency, and is responsible for reviewing and approving comprehensive plan amendments by local governments.
The School Board is responsible for providing educational facilities and programs to the residents of Martin County pursuant to the Florida Constitution and Florida Statutes.
The City of Stuart is an incorporated municipality within Martin County.
All of the parties have standing in this proceeding.
The Plan Amendment Adoption Process
On or about July 10, 2001, the Planning and Development Services Department of Martin County, by and through its director, Nicki van Vonno, requested the Board of County Commissioners of Martin County (Commission) to consider transmitting the second set of proposed 2000-2001 Comprehensive Plan Amendments to the Department. The proposed list included No. 01-9 (Mixed Uses), No. 01-11 (School Siting), and No. 01-12 (Public Facilities). Among other documents, three separate memoranda pertaining to each proposed plan amendment accompanied this request. These materials were submitted to the Land
Planning Agency (LPA) for consideration during a public hearing held on July 12, 2001, and also for the Commission meeting held on August 7, 2001.
Pertinent here, two separate memoranda pertained to School Siting and Public Facilities and contained background information, applicable statutes, proposed plan amendments, and with respect to school siting, a draft interlocal agreement.
Because the proposed Plan Amendments changed substantially after and in response to the Department's Objections, Recommendations and Comments (ORC) Report issued on November 2, 2001, the data and analysis compiled and performed by Martin County planning staff (as of August 2001) is not included here, but is discussed hereafter where relevant to the discussion of the Plan Amendments ultimately approved by Martin County and which were found to be "in compliance" by the Department.
On July 12, 2001, the LPA unanimously recommended approval of the three proposed plan amendments.
On August 7, 2001, the Commission unanimously approved the three proposed Plan Amendments. Comments from the public were received, including but not limited to comments offered by Lisa Interlandi (co-counsel for Melzer and MCCA in this proceeding), and Ms. Melzer. Written comments were also submitted by Richard J. Grosso, General Counsel, Environmental &
Land Use Law Center, Inc. (also appearing as co-counsel for Melzer and MCCA in this proceeding). Other written comments were provided by, among other persons, William Thornton and Lloyd Brumfield. The Commission voted to transmit these Plan Amendments to the Department for consideration.
On or about August 20, 2001, the Department received the proposed Plan Amendments. Copies of the proposed Plan Amendments were distributed to appropriate state, regional, and local agencies for their review and comments.
By letter dated November 2, 2001, the Department submitted its ORC with external agency comments to Martin County. In part, this letter authored by Charles Gauthier, A.I.C.P., Chief, Bureau of Local Planning, stated in part:
The Department supports the growth management objectives of the County in limiting the location of schools and public facilities to the urban service districts. We also recognize the need to include additional siting flexibility for schools and public facilities due to the constraints that exist within the urban service districts. However, we are concerned that the proposed siting policies waive all requirements of the plan without limitation rather than incorporating additional flexibility for siting. Our objections and recommendations are intended to assist the County in its efforts to site required facilities, while continuing to ensure the plan is fully implemented and habitats are afforded appropriate protection. We are available to work with your staff to develop strategies to meet all of these important growth management objectives.
The Department expressed two objections relevant here.
The first deals with the School Siting Plan Amendment, and proposed changes to the Plan's Future Land Use Element (FLUE) and the Intergovernmental Coordination Element (ICE), and in particular ICE Policy 3-2.A.10.a, which as proposed at the time, stated:
Policy: In accordance with Sections 163.3177(6)(h)2 and 235.193, F.S., by 2001, Martin County, the City of Stuart, and the Martin County School Board shall adopt and maintain an inter-local agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools. At a minimum, the interlocal agreement shall provide a standardized process for determining the sites available to meet the needs identified by the School Board and for objectively ranking potential sites as to their suitability, considering at a minimum:
Federal and state requirements for school siting;
Proximity to existing or planned population centers;
Availability of public facilities for transportation, including bicycle and pedestrian facilities, stormwater drainage, potable water and wastewater facilities;
Opportunities for locating near complementary uses; and
Negative impacts to native upland and wetland habitats.
The development of school sites located in accordance with Policy 4-4.G.1.m., that is, on sites which lie within a municipality or within the Primary or Secondary Urban Service District, and which sites are
selected pursuant to the terms of an interlocal agreement adopted in accordance with this policy, shall be deemed consistent with the remaining provisions of this Comprehensive Growth Management Plan.
The Department provided the following objection and recommendation regarding this policy amendment:
1. ORC Objection: Proposed ICE Policy 3-
2.A.10.a is vague and over broad in terms of defining how consistency will be addressed in siting schools. For instance, it is not clear if "deemed consistent" waives procedural requirements such as obtaining a permit, waives all policies which pose any siting constraints, or waives just those provisions which might preclude siting a school on a specific property. The vague language does not provide sufficient guidance to define how consistency will be achieved in siting schools. The policy does not set forth a process for addressing and resolving potential conflicts between policies in a manner that ensures the intent of the plan is achieved to the maximum extent possible and that priority is given to specific requirements of the plan such as habitat protection. The policy does not provide sufficient guidance to prioritize siting
projected needs, that alternative sites have been explored and deemed impracticality [sic] and that the proposed site minimizes the extent of impacts in comparison to other sites. The policy should provide guidance for evaluating and comparing sites based on priorities for resolving conflicts between policies which may potentially create conflicts in siting schools. The policy should also establish criteria for evaluating alternative sites based on the functional characteristics of habitats, such as wetlands, so that higher quality habitats are given more weight and afforded greater protection in the siting process. (Emphasis included in original.)
The Department also provided an objection and a recommendation with respect to proposed changes to the Capital Improvements, FLUE, Coastal Management, Conservation and Open Space Elements for the proposed Public Facilities Plan
Amendment. The Department's objection and recommendation follows:
2. ORC Objection: Proposed Policies 14-
4.A.4.c. and 14-4.A.4.d.[1]allow the waiver of all goals, objectives and policies of the comprehensive plan as may be necessary to site public facilities in the urban service districts. The proposed amendments are over-broad and do not ensure adequate implementation of the comprehensive plan in siting public facilities. The proposed policies do not include sufficient guidelines for addressing and resolving potential conflicts between policies in a manner that ensures the intent of the plan is achieved to the maximum extent possible and that priority is given to specific requirements of the plan such as habitat protection. The policies do not set forth sufficient guidelines to develop the project impact analysis in a manner that ensures siting alternatives will be evaluated, priorities will be established, and potential impacts minimized and mitigated. The policies do not include criteria for evaluating alternatives
* * *
functional characteristics of habitats, such as wetlands, so that higher quality habitats are given more weight and afforded greater protection in the siting process. (Emphasis in original.)
Staff of the Treasure Coast Regional Planning Council (Council) issued a Memorandum of October 19, 2001, (included with the ORC) which evaluated the Plan Amendments. The report was approved by the Council.
The Council did not object to the Plan Amendments, but offered "comments" regarding the Public Facilities Plan Amendment.2 In general, the Council felt that this Plan Amendment "would allow new public facilities to be developed without protecting wetlands." The Council noted that this Plan Amendment was inconsistent with the Council's Strategic Regional Policy Plan (SRPP), and in particular Policies 6.6.1.1 and 6.6.1.2, because the Plan Amendment, "as written would also allow waivers to any requirement of the Comprehensive Plan," and "[a] waiver without limits or instructions for its use is not good public policy." Further, the Council noted: "If the County proceeds with adoption of policies to allow these waivers, Council recommends the County specifically identify the criteria under which any waiver of the Comprehensive Growth Management Plan (CGMP) goals, objectives and policies for public projects is based. These criteria should be clearly and specifically stated in the CGMP so the public can be assured the
criteria are being met and that any waiver allowed by the County is for the public good. Also, specific compensation/mitigation criteria should be established to offset loss of wetland habitat; and limit and mitigate for any other impacts granting the waiver may have on County levels of service and the natural and built environment. Council recommends that the County utilize waivers only after all other possible alternatives are fully examined."
The Council also recommended that a proposed amendment pertaining to "waivers and exceptions" for "wetland areas" appearing in three elements (for Public Facilities) "not be adopted until precise guidelines are developed that specify the conditions under which this waiver may be applied."3
The Department of Transportation (DOT) objected to two provisions of the Public Facilities and School Siting Plan Amendments regarding existing concurrency requirements and potential level of service impacts of the proposed waiver on the transportation system. DOT also questioned "whether concurrency provisions of the [Plan] will apply to school construction once site selection is completed."
The Department of Environmental Protection offered no comments to the Plan Amendments submitted for the Department's ORC review. The Department of State did not have any objections or negative comments.
Martin County planning staff compiled a response to the Department's ORC, which set forth the Department's Objections and Recommendations, and to the Council's comments.
On or about November 6, 2001, Martin County planning staff prepared a summary of the preceding events, which was furnished to the Commission for consideration during the Commission's December 4, 2001, workshop. Revisions and/or additional language were drafted by staff in light of the ORC, including the Council's comments, and comments from the public. Previously, the Commission directed staff to develop the Public Project Impact Analysis, specified in proposed plan amendment Policy A.4.e. of the public projects text amendment, which was also considered during the workshop. County staff had been working with the Department and Council staff on addressing the comments and objections of these agencies. Representatives of the County and the School Board met with Department Secretary Steven Seibert to discuss the school siting text amendment which had been re-drafted, but not in the final form ultimately approved by Martin County.
On December 11, 2001, revisions of the Plan Amendments were presented to the Commission for adoption during a public hearing. By letter of December 7, 2001, Secretary Seibert was advised of the Department's support for the School Siting and Public Facilities Plan Amendments. The Commission approved the
revisions and the Plan Amendments were transmitted to the Department.
On February 1, 2002, the Department completed its review of the Plan Amendments adopted by Ordinance No. 606 on December 11, 2001, and found the Plan Amendments "in compliance." The Department's Notice of Intent was published in the Jupiter Courier on February 4, 2002.
Textural Plan Amendment 01-11 (School Siting)
As approved by the Commission and found to be "in compliance" by the Department, the School Siting Plan Amendment amends the ICE and the FLUE of the Plan. With respect to the ICE, the School Siting Plan Amendment deletes Section 3-2.A., Objective 8, Policy d., creating a new Policy d. after the following existing (Objective) language: "On an ongoing basis Martin County shall coordinate its Comprehensive Growth Management Plan with the plans of the Martin County School Board, the City of Stuart. . .and the Counties of Palm Beach, St. Lucie and Okeechobee." New Policy d. provides:
d. Policy: The County and the Martin County School Board shall coordinate a biennial review of the School Impact Fee Ordinance in order to ensure that new developments bears [sic] its proportionate share of the cost of providing new school facilities.
The School Siting Plan Amendment also deletes Section 3.2.A, Objective 10, Policies a. and b. (of the ICE), and
substitutes a new Policy a. after the following existing (Objective) language: "Martin County, the municipalities, and the Martin County School Board shall coordinate the planning, location, and review of proposed educational facilities site plans and offsite impacts." New Policy a. provides:
Policy: In accordance with Sections 163.3177(6)(h)2 and 235.193. F.S., by 2001, Martin County, the City of Stuart, and the Martin County School Board shall adopt and maintain an interlocal agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools. Due to the unique locational requirements for public schools imposed by state and federal requirements and considering the overall benefits to the community of locating public schools within a municipality or within the Primary or Secondary Urban Service District, it may not be possible to achieve consistency with each and every policy of this plan in the same manner as other types of development. Therefore, in order to achieve the full public benefit of locating public schools within a municipality or within the Primary or Secondary Urban Service District, this policy provides a mechanism for balancing the Goals, Objectives and Policies of this Plan and shall be the sole means of determining consistency with this Plan for purposes of siting and constructing public schools.
The interlocal agreement shall provide a standardized process for determining the sites available to meet the educational facility needs identified by the School Board and for objectively scoring and ranking potential sites as to their suitability. The scoring and ranking of
the interlocal agreement shall favor sites which:
Are consistent with federal and state guidelines for school siting;
Are in close proximity to existing or planned population centers and student populations;
Maximize the use of existing or planned capital facilities for transportation, including bicycle and pedestrian facilities, stormwater management, potable water and wastewater facilities and maintain adopted Levels of Service for mandatory public facilities to the maximum extent practicable;
Are in close proximity to complementary uses, such as but not limited to public parks and libraries; and
Avoid negative impacts to wetlands and upland habitats and where negative impacts cannot be avoided, sites for which permits can be obtained to allow minimization and mitigation of such impacts, in accordance with state and federal permitting requirements.
The interlocal agreement shall include provisions for an alternatives analysis designed to demonstrate the extent to which each potential school site, relative to other potential sites, is necessary to meet projected needs of the population and maximizes the public benefit, as measured by the criteria set forth in paragraphs (1) and (5) above.
A school site located in accordance with Policy 4-4.G.1.m., that is, on a site which lies within a municipality or within the Primary or Secondary Urban Service District, and which is selected pursuant to an interlocal agreement adopted in accordance with this policy, shall be deemed to be the most appropriate site
available to satisfy the identified public education need while maintaining consistency with the Goals, Objectives and Policies of this Plan to the maximum extent practicable and the siting and construction of a public school on any such site shall be deemed consistent with this Plan.
The School Siting Plan Amendment also deletes Section 4-4.G. (encouraging urban development in urban service areas), Objective 1, Policy m. of the FLUE, and adds a new Policy m. after the following existing (Objective) language: "Martin County shall concentrate higher densities and intensities of development within strategically located Primary Urban Service Districts. . . ." New Policy m. provides:
m. Policy: Public schools shall be located only within the Primary Urban Service District (PUSD) or the Secondary Urban Service District (SUSD).
Previously, Policy m. authorized public schools as an allowable use within the Primary Urban Service District, and further provided that "[p]ublic schools may be allowed in the Secondary Urban Service District based upon a demonstration of need."
Is the School Siting Plan Amendment "in compliance?"
In general, Petitioners contend that the School Siting Plan Amendment is not "in compliance" because it is vague and lacks meaningful, predictable standards; improperly defers decision-making with respect to the siting and construction of schools to the participants of an interlocal agreement and
thereby eliminates public participation; is not supported by appropriate data and analysis; causes urban sprawl; improperly eliminates the requirement that schools comply with Level of Service (LOS) requirements; fails to protect natural resources; and allows incompatible land uses.
The ICE requires Martin County, the municipalities, and the School "to coordinate the planning, location, and review of proposed educational facilities site plans and offsite impacts." To this end, the School Siting Plan Amendment amends the ICE of the Plan to require Martin County, the City of Stuart, and the School Board "to adopt and maintain an interlocal agreement detailing joint processes for collaborative planning and decision making, population projections and the siting and development of public schools."
The siting (of suitable sites) of public schools has been a particular challenge to local governments and school districts for many years. This is so, notwithstanding the statutory authority to establish "joint processes for collaborative planning and decisionmaking [sic] on population projections and public school siting" and the authority to "establish by interlocal or other formal agreements executed by all affected entities" these joint processes consistent with their adopted ICEs pursuant to Section 163.3177(6)(h)2., Florida Statutes.
Historically, there appears to have been little coordination between school planning and siting, and land use planning and regulation. County school district's have been responsible for the former and local governments for the latter.
As Florida began to focus more and more on the importance of managing growth, it became obvious that school planning, siting, and construction had to be coordinated with overall growth management because schools usually draw development.
School siting requires more than consistency with a comprehensive plan. It requires compliance with state and federal requirements which presents some unique and sometimes difficult problems.
In order to address some of these problems, the Legislature enacted laws authorizing local governments to enter into local agreements with school districts to address the problem of school siting to ensure that the siting and construction of schools are done within the overall planning framework and overall local comprehensive plan.
In 1999, the Stuart City Commission, the School Board, and the Commission held a joint meeting regarding proposed amendments to the Plan related to school siting. These entities created a Joint Task Force on School Siting (Task Force) which was responsible for drafting an interlocal agreement. Intensive
meetings and workshops were conducted, in part, with the assistance of a consultant with extensive experience in conflict resolution as well as school siting.
On May 1, 2000, the Task Force approved the overall format of an interlocal agreement for school siting based on the concept that potential school sites would be scored and ranked according to a policy matrix, such that only sites scoring near the top would be considered consistent with the comprehensive plans and land development regulations. While in general agreement with the overall format of the agreement, the Task Force directed staff to continue working on several outstanding details.
The Martin County School District retained a knowledgeable professional to perform an analysis of all the property within the urban service areas and was advised that it would be very difficult, if not impossible, to site middle and high schools within the PUSD, which would meet all of its requirements and still meet all of the Plan policies.
At the request of the School Board, the Technical Advisory Committee on School Siting convened in January 2001, to implement a proposed interlocal agreement by evaluating and recommending sites appropriate for the location of Martin County's planned "2003 High School." Membership on the Committee included representatives from Martin County, the
School Board, and the City of Stuart. Twenty-two sites were examined and placed into three categories. In light of all federal, state, and local requirements, all of the sites were constrained in some respect. However, the Martin County School District's Five-Year Work Program indicates that only one new school (a high school) is programmed for this planning period. As of the final hearing, this high school is in the process of being sited. It appears this site was selected pursuant to the Interlocal Agreement adopted in August 2001. Assuming that the new high school is built, no new school sites are expected to be needed within the five-year time frame. However, some existing school(s) may be rebuilt, such as Port Salerno Elementary School.
Martin County did not want to provide a blanket exception or waiver to the Plan policies, and did not believe it was necessary to do so.
The Task Force ultimately concluded that, by recognizing the role that public schools play in community- building and incorporating those features into the policy matrix in an interlocal agreement, the public could potentially achieve an overall better result than would likely have been possible by relying solely on the existing regulatory scheme of the Plan and the Land Development Regulations (LDRs).
By providing a scoring system which awards points based on positive characteristics, such as collocation with related public facilities, and subtracts points based on negative characteristics, such as environmental impacts, the interlocal agreement can be expected to help resolve what are sometimes competing public objectives. This process requires the School Board and the local entities to work together in the process of scoring and ranking the available sites.
In this light, this process enables these entities to explore the true costs and benefits of school-siting decisions, not just from their own individual perspectives, but from the perspective of the broader community. As noted by planning staff, "the School District, which would normally tend to view the 'cost' of school siting as a function of the price of land, construction and long term operations, will be better able to recognize the costs (and benefits) with respect to other public services. Similarly, the local governments will be in a better position to recognize how their regulations affect the ability of the School District to provide the necessary educational facilities."
Another approach would have been to specify which Plan policies are not applicable to school siting decisions. The approach taken by Martin County is not proscribed per se by any statute or rule.
Comprehensive plans may contain different standards for different types of development, such as schools.
The School Siting Plan Amendment sets out a separate method for determining consistency for public school site selection and development which is unique within the Martin County Plan and is not in conflict with any of its remaining provisions.
The School Siting Plan Amendment addresses how locational, infrastructure, and natural resource protection policies are to be balanced with respect to the siting school facilities thereby maintaining internal consistency.
Under the School Siting Plan Amendment, by its plain terms, Martin County, the City of Stuart, and the School Board are required to adopt and maintain an interlocal agreement which details joint processes for collaborative planning and decision- making, population projections, and the siting and development of public schools. This method is consistent with Sections 163.3177(6)(h)2. and 235.193(3), Florida Statutes.
There is an existing Interlocal Agreement among Martin County, the School Board, and the City of Stuart which was furnished to the Department in August 2001, with the initial set of plan amendments. This agreement was the subject of a lengthy process of negotiation among Martin County, the City of Stuart,
and the School Board and also developed by the appointed Task Force mentioned above.
The Interlocal Agreement, however, is background information in support of the Plan Amendment, but is not specifically referenced in the School Siting Plan Amendment or in Ordinance No. 606, and does not implement the provisions of the Plan Amendment because the Agreement pre-dated the adoption of the Plan Amendment. (Mr. Metcalf of the Department viewed the Agreement "from the standpoint of how they set up their ranking system and scoring system and just as background information.") The Interlocal Agreement is not subject to review for compliance with the Plan Amendment or with the Plan in this proceeding.
By construction of its terms, the School Siting Plan Amendment only applies to new school sites, not to the redevelopment or expansion of existing schools, which would have to be consistent with all of the provisions of the Plan. This Plan Amendment applies to the siting and construction of a public school.
The interlocal agreement must provide "a standardized process for determining the sites available to meet the educational facility needs identified by the School and for objectively scoring and ranking potential sites as to their suitability." Every school site must be selected pursuant to an
interlocal agreement adopted in accordance with Policy a. The scoring and ranking system in the interlocal agreement is required to favor sites which satisfy the five criteria set forth in the Plan Amendment. See Finding of Fact 34.4 (But, any adopted interlocal agreement is not required to be adopted as a plan amendment notwithstanding that it must be consistent with the Plan Amendment.)
The Plan Amendment sets forth a process for balancing competing public interests, which are expressed as a policy. It is at least the subject of fair debate that the listed criteria provide a measurable, meaningful, and predictable framework. This means that there is sufficient direction in the Plan Amendment to be able to direct the development of LDRs and other programs in the Plan.
In the ORC, the Department advised Martin County: "Adequate data and analysis has not been represented to demonstrate which plan provisions create siting conflicts and the extent to which such policies must be relaxed or modified in order to overcome siting conflicts as necessary to meet projected schools needs." Mr. Metcalf stated that there were no data and analysis to demonstrate which plan provisions create siting conflicts after the ORC was issued. However, in its response to the ORC, Joint Exhibit 6, page 3 of 12, Martin County advised, in part: "Considering all federal, state and
local requirements, each of these sites [described in the Site Selection Recommendations report] is constrained in some respect." Nevertheless, Mr. Metcalf felt that this initial concern "was adequately mitigated by the fact that they now have language that talks about the idea of maximizing consistency with the comprehensive plan by scoring across those five criteria," including the requirement that schools be located within the urban service area which necessarily avoids an expansion of the urban boundary.
The level of detail required for data and analysis to support a plan amendment varies. For example, consideration is given to the local government's existing and projected population and rate of population growth. See generally Rule 9J-5.002(2)(a)-(g), Florida Administrative Code. The level of detail is related to the context of the plan amendment. The data and analysis supporting the School Siting Plan Amendment meet the minimum standards.
Here, the five criteria are mandatory in that each proposed site must satisfy each in order to have the potential for ultimate selection. However, while the issue was the subject of differing opinions,5 this language does not necessarily require that the highest-ranked site be selected, but the scoring and ranking system of the interlocal agreement
must favor sites which meet all of the criteria. Otherwise, a site is not favored.
Policy a. also requires the interlocal agreement to include an "alternatives analysis designed to demonstrate the extent to which each potential school site, relative to other potential sites, is necessary to meet the projected needs of the population and maximizes the public benefit, as measured by the" five criteria mentioned above. (Emphasis added.) Thus, each proposed site, having met the five criteria, may receive different scores in relation to each other as part of the alternatives analysis which requires, in part, consideration of how a site "maximizes the public benefit" as measured by all of the five criteria. The site selected would be among the best available sites.
Stated otherwise, the School Siting Plan Amendment affords some flexibility. Doug Griffin, School Board attorney for the Martin County School District, explained:
Well, wetlands infrastructure in each and every one of those things are very important. There is also the community issue, the school community issue where the best place is to pick a site. There may be two or three sites that are very close in terms of objective scores, but the community is absolutely supportive of a particular site and that's why we built this in to slow [sic] community input into where we locate our schools assuming that the sites are relatively equal in terms of their objective scores.
All sites must be consistent with federal and state guidelines for school siting pursuant to criterion (1).
All proposed school sites must be located within a municipality or within the Primary or Secondary Urban Service Districts. The Urban Service District consists of the Primary Urban Service District (PUSD) surrounded by the Secondary Urban Service District (SUSD) which is the transition between urban development and the rural agricultural areas of Martin County. (It appears that the SUSD is generally to the south and on the fringe of the urbanized area. Development is strongly discouraged in the rural and agricultural areas, with densities of one unit per 20 acres. The SUSD allows development of less than two units per acre, whereas the PUSD allows more than two units per acre.)
Criteria (2)-(4) recognize, in part, the need to locate a school in proximity to student populations. It is not reasonable to expect the siting of a school in a remote area where there are no existing or planned population centers.
Schools are influenced by development patterns. As a policy choice, it is preferable to site schools in the urban service district versus outside of the urban service district.
Criterion (2) requires a prospective school site to be "in close proximity of existing or planned population centers and student populations." ("[I]n close proximity" means
nearby.) The concept of sites being within close proximity (collocation) to planned population centers and complementary uses (criterion (4)) dovetails with the concept of limiting siting to the urban service district. These criteria also afford consideration of minimizing travel distances for students. See generally Section 163.3177(6)(a), Florida Statutes. ("The future land use element shall include criteria which encourage the location of schools proximate to urban residential areas to the extent possible and shall require that the local government seek to collocate public facilities, such as parks, libraries, and community centers, with schools to the extent possible.")
Criterion (3) is a key component to combating urban sprawl by avoiding the need to extend public services out in a linear fashion that might tend to promote leapfrog development. The use of existing or planned public facilities is required to be maximized, which means that the public facilities are to be utilized to the fullest extent possible. See generally Rule 9J- 5.006(5)(g)6. and 7., Florida Administrative Code (failure to do so is an indicator of urban sprawl); see also Rule 9J- 5.011(2)(b)3., Florida Administrative Code (same).
The School Siting Plan Amendment recognizes that if Martin County is to continue its efforts to discourage urban sprawl, it needs to find a way to accommodate public schools and
other public facilities within the urban service districts. Otherwise, schools may be located in rural and agricultural areas, with development sure to follow. In order to achieve the overriding goal of containing sprawl, conflicting policies and other very important considerations, like wetlands protection, arise. These policy considerations need to be harmonized in a consistent manner with applicable statutes and rules.
The location requirements in the School Siting Plan Amendment are consistent with, and further the Martin County goal of discouraging urban sprawl.
As a separate requirement, criterion (3) also requires the maintenance of adopted LOS for mandatory public facilities6 to the "maximum extent possible." However, this provision does not authorize a waiver or exemption of LOS standards and concurrency requirements for public facilities including schools. Stated otherwise, a school site must meet the adopted LOS standard that has been established in the Martin County concurrency system. (For example, if the school district wants to build a school on a site, that school must be built in such a manner as to comply with traffic LOS standards.) Any interpretation to the contrary would lead to a finding of inconsistency with statutory requirements.
Mr. Metcalf opined that maintaining adopted LOS for mandatory public facilities to the maximum extent practicable could result in a school site not meeting the LOS.7
Criterion (5) provides: "Avoid negative impacts to wetlands and upland habitats and where negative impacts cannot be avoided, sites for which permits can be obtained to allow minimization and mitigation of such impacts, in accordance with state and federal permitting requirements."
By rule, local government comprehensive plans are required to have a conservation element which, among other things, requires policies which address the protection and conservation of wetlands. Rule 9J-5.013(3)(a), Florida Administrative Code. "Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands. . . . Land uses shall be distributed in a manner that minimizes the effect and impact on wetlands. The protection and conservation of wetlands by the direction of incompatible land uses away from wetlands shall occur in combination with other goals, objectives and policies in the comprehensive plan. Where incompatible land uses are allowed to occur, mitigation shall be considered as one means to compensate for loss of wetlands functions." Rule 9J- 5.013(3)(b), Florida Administrative Code.
Wetlands provide important ecological functions, including but not limited to groundwater recharge. Martin County has a "mosaic of wetlands." Upland and wetland areas are interspersed throughout Martin County. Isolated wetlands, which are by definition not connected to streams, creeks, rivers, or other surface waters, are important for various species, such as wading birds, and other species and habitats.
The Department determined that as of 1995, approximately 11 percent of the wetlands in Martin County were located within the urban service area. (Mr. Metcalf explained that this assessment was based on the "best available data from the national wetland inventory and soil-type analysis and the thematic mapping." He received the "digital coverages" for Martin County after the Department found the Plan Amendments "in compliance." The information was available to Martin County before the adoption of the Plan Amendments.) General institutional uses of land in Martin County when compared to other land uses on the Future Land Use Map (FLUM) comprised approximately four percent. (Typically, the range is between four and ten percent, with Martin County on the low side.) Approximately one-half of one percent of the wetlands in the urban service area may be impacted by the School Siting Plan Amendment. Mr. Metcalf estimated that approximately 200 acres of wetlands within the urban service district could be impacted
by the Plan Amendment, based on the notion that all of those wetlands are available. He believed 200 acres was de minimis. Mr. Metcalf's assessments are reasonable.
The School Siting Plan Amendment does not exempt school sites from natural resource protection because any selected school site must "[a]void negative impacts to wetlands" and "where negative impacts cannot be avoided," such impacts are required to be minimized and mitigated "in accordance with state and federal permitting requirements." See Section 163.3184(6)(c), Florida Statutes ("When a federal, state, or regional agency has implemented a permitting program, the state land planning agency shall not require a local government to duplicate or exceed that permitting program in its comprehensive plan or to implement such a permitting program in its land development regulations.") A school site is required to satisfy criterion (5) in order to be consistent with the Plan.
Martin County has stringent wetlands protections in the Plan. To this end, Martin County decided to provide protections to wetlands in addition to those required by state and federal regulations, which is good from an ecological perspective. One witness thought this was a "very noble idea."
However, the issue is whether the School Siting Plan Amendment, which provides a different set of wetlands protections, is not "in compliance." Stated otherwise, does the
School Siting Plan Amendment provide adequate protections for wetlands within the statutory and rule framework which provides minimum standards which must be met? The persuasive evidence indicates that the federal and state regulatory programs which provide protection for wetlands can afford adequate protection as a matter of policy in light of the Plan Amendment. Whether mitigation will be adequate for a specific school site must await consideration of a specific development proposal.
The comprehensive plan's conservation element is required to contain one or more objectives which, in part, "[c]onserve, appropriately use and protect minerals, soils and native vegetative communities, including forests" and "[c]onserve, appropriately use and protect fisheries, wildlife, wildlife habitat and marine habitat," addressing the requirements of Section 163.3177(6)(d), Florida Statutes.
Rule 9J-5.013(2)(b)3. and 4., Florida Administrative Code.
Conservation allows for the wise use of a resource and does not equate with preservation, which requires that resources be left intact. Pursuant to the Plan Amendment, school sites are required to avoid negative impacts to upland habitats.
Section 9-4, Objective 7., Policy e. provides that "Martin County shall ensure that a minimum of 25 percent (by 2005) of the existing upland native habitat in the County [county-wide] will be preserved." (Increases in the percentages
required (to 15 percent in 1995 from 10.9 percent, 20 percent in 2000) are staggered in the Plan and these "percentage goals will be attained for both endangered/rare and common uplands, to the maximum extent feasible." This 25 percent goal does not apply, by its terms, on a site-specific basis.
The persuasive evidence indicates that criterion (5) will not affect the ability of Martin County to reach the target goal of preserving 25 percent upland native habitat by 2005.
The persuasive evidence indicates that the School Siting Plan Amendment will not have a significant impact on the upland resources of Martin County.
By its plain terms, a selected school site is not required to comply with other Plan provisions pertaining to upland habitat protections as long as it complies with the Plan Amendment. Also, the Plan Amendment does not require any minimum upland preservation to a selected school nor do federal and state regulations require mitigation of impacts to upland habitat, although there are federal laws which protect, e.g., endangered species. Nevertheless, to the extent there are no state and federal permitting requirements which authorize "minimization and mitigation" for upland habitats, potential school sites must avoid negative impacts to upland habitats.
Potentially, the School Siting Plan Amendment (as well as the Public Facilities Plan Amendment) does not prohibit
schools from being sited and constructed in the coastal high- hazard area of Martin County. This was of initial concern to Mr. Metcalf. It is the Department's practice to have local governments limit their infrastructure capacity to accommodate planned populations in the coastal high-hazard areas. Also, the Department felt that it was unlikely that Martin County would locate a school in a high-hazard area. The Department of Education has a guideline which indicates a preference to avoid coastal high-hazard areas and funding is limited at the federal level, including a required local match. (Martin County has Plan provisions which limit public expenditures in coastal high- hazard areas.) Flood plain standards are also required when schools are designed.
If a school site is located on a site which lies within a municipality, or within the Primary or Secondary Urban Service District and selected pursuant to an interlocal agreement adopted in accordance with Policy a., the selected school site is "deemed to be the most appropriate site available. "
Martin County explained the meaning of this provision in its response to the ORC, Joint Exhibit 6, pages 3 and 4 of 12, in part, as follows:
Because the policy matrix[8]of the interlocal agreement exhaustively addresses all of the relevant policies of the Comprehensive Plan as
well as state and federal requirements, including both procedural and substantive requirements, a site which scores near the top of all available sites to meet the identified need, is rightly 'deemed consistent' with the comprehensive plan.
The phrase 'deemed consistent' was purposefully chosen because it serves to suspend those provisions of the Plan that, by operation of the interlocal agreement, would have been determined to be relatively unimportant or counterproductive in the context of public school development, while preserving the ability of the County to recommend compliance to the maximum extent practicable (as is provided for in the interlocal agreement). In other words, if the Plan were to exempt public schools from certain requirements (even under limited circumstances), the provision in the interlocal agreement requiring compliance to the maximum extent practicable would be rendered meaningless. In effect, the term 'deemed consistent' applies to those provisions of the Plan which might preclude the development of a school on a site which, by operation of the exhaustive standards of the interlocal agreement, has been determined to be the best available to serve the identified need. The interlocal agreement provides for a development review procedure that is appropriately tailored to fit the unique circumstances of public school development.
All other state and federal permitting requirements remain in place. School Boards are already statutorily exempt from the need to obtain a local building permit (they are subject to the state building code and state oversight for building inspections).
Regarding public participation, the public would have access to the decisions of the School Board's deliberations and decisions, which are made during public meetings. Similarly, Martin County is required to approve any development order for
any site selected pursuant to the interlocal agreement adopted pursuant to the School Siting Plan Amendment. An action challenging the consistency of that decision with the requirements of the Plan Amendment could be brought pursuant to Section 163.3215, Florida Statutes.
There were no issues raised in the proceeding that Petitioners and other members of the public did not have the opportunity to fully participate in the public process leading to the adoption of the Plan Amendment pertaining to school siting and other public facilities.
Textural Plan Amendment No. 01-12 (Public Facilities)
As approved by the Commission and found to be "in compliance" by the Department, the Public Facilities Plan Amendment adds language to the FLUE, Chapter 4; the Coastal Management Element, Chapter 8; the Conservation and Open Space Element, Chapter 9; and the Capital Improvements Element, Chapter 14.
With respect to the FLUE, the Public Facilities Plan Amendment adds additional language under Section 4-5.B.(5)(h)1)- 3), (performance standards for wetlands areas). The performance standards in the FLUE, Subsection 4-5.B. provide, in part, that "Wetland Protection Requirements are detailed in the Conservation and Open Space Element," Chapter 9.
The initial paragraph of Subsection 4-5.B.(5) deals with "Waivers and Exceptions" and currently provides: "All wetland alteration allowed under these exceptions shall be mitigated sufficiently to ensure that there is no net loss of functions or the spacial extent of wetlands in Martin County. No exceptions or waivers shall be granted to these standards except under the conditions described below." Currently, there are seven waivers and exceptions ((a)-(g)) and the Plan Amendment adds subsection (h) as follows:
Stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County subject to the following:
The project shall be designed to cause the least amount of negative impact to wetlands. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance.
Wetland buffers degraded with exotic vegetation.
Wetland buffers, undisturbed
Wetlands, isolated and degraded.
Wetland systems, large and disturbed.
Wetland systems, large and undisturbed.
Wetland quality will be assessed using criteria established by the State of Florida.
All projects shall follow all State and Federal regulations and permitting requirements.
No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.[9]
The Public Facilities Plan Amendment also amends the portion of the Coastal Management Element under the "Coastal Natural Resources Goal," creating new Subsection 8-4.A.1.o., pertaining to waiver of upland protection requirements:
The upland protection requirements detailed in Section 8-4.A.1.e through n. above may be waived by the Board of County Commissioners to the minimum extent necessary for stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County.
The project shall be designed to cause the least amount of negative impact to upland habitat. Waivers to existing requirements will be based on the principle of protecting the highest quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance.
Common upland habitat impacted by exotic vegetation.
Common upland habitat, undisturbed.
Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in Sections 8-4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan;
All projects shall follow all State and Federal regulations and permitting requirements.
No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.
The Public Facilities Plan Amendment also amends the Conservation and Open Space Element and adds Subsection 9-
4.A.7.q. which provides:
The upland protection requirements detailed in Section 9-4.A.7.e. through p. above may be waived by the Board of County Commissioners to the minimum extent necessary for stormwater treatment projects listed in the adopted Capital Improvements Plan, constructed by the Martin County Board of County Commissioners and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County.
The project shall be designed to cause the least amount of negative impact to upland habitat. Waivers to existing requirements will be based on the principle of protecting the highest
quality habitat and impacting the lowest quality habitat. Below are example habitats ranked from lowest to highest in quality and importance.
Common upland habitat impacted by exotic vegetation.
Common upland habitat, undisturbed.
Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in Sections 8-4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan;
All projects shall follow all State and Federal regulations and permitting requirements.
No such waiver to the Comprehensive Plan policies or the Land Development Regulations shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.
The Public Facilities Plan Amendment also amends Section 14-4.A.4.a. and b. of the Capital Improvements Element and also adds Objective 5. Objective 4 begins: "Manage the land development process to insure that all development receives public facility levels of service equal to, or greater than the standards adopted in Policies b., c. and d. of Objective 1." Amended Policies a. and b. to Objective 4 and new Objective 5 provide:
Policy: All Category A and B public facility capital improvements shall be consistent with the goals, objectives and policies of the appropriate elements
of this Comprehensive Plan or as specified in Objective 5. below.
Policy: The County shall integrate its land use planning and decisions with its plans for public facility capital improvements by developing and adopting the programs listed in the "Implementation Programs" which are adopted as part of this Capital Improvements Element. The location of, and level of service provided by projects in the Schedule of Capital Improvements shall maintain adopted standards for levels of service for existing and future development in a manner and location consistent with the Future Land Use Element of this Comprehensive Plan. Individual land use decisions shall be consistent with Objective 5., below.
OBJECTIVE
Establish a procedure for balancing Comprehensive Growth Management Plan (Comprehensive Plan) goals, objectives, and policies for public facility capital improvement projects.
Policy: When a public facility capital improvement is necessary, but the specific locational requirements or site development requirements for it make compliance with each and every policy of this Comprehensive Plan either physically impractical or financially unfeasible, the necessity for such a public facility capital improvement may require the location and construction of it even though a goal, objective or policy of this Comprehensive Plan would prohibit other types of development.
The need for public facility capital improvements must be balanced with the benefits of other development requirements. Therefore,
notwithstanding any other provisions of this Comprehensive Plan concerning concurrency with Level of Service requirements or adverse impacts to wetland or upland habitat, the Board of County [C]ommissioners may approve the location and construction of a public facility capital improvement upon their determination that the following met:
The facility is listed in the adopted Capital Improvement Plan.
The site for the proposed public facility capital improvement is within the Primary or Secondary Urban Services District.
The facility site has been evaluated based on the following criteria:
Project specific requirements including, but not limited to, location within facility service area, minimum facility size requirements, co-location with existing facilities, facility siting or design requirements, operational requirements and state or federal funding and regulatory requirements;
Impact on environmental resources, and the ability to mitigate negative impacts;
Future land use designation and zoning district; and
Relative cost of alternative sites including the cost of mitigating or restoring natural resources.
The design and layout of the proposed facility is the least disruptive to wetland and upland habitats.
Where negative impacts to wetland and upland habitats cannot be avoided, such impacts shall be minimized and mitigated in accordance with state and federal permitting requirements.
Impacts to lower quality habitat shall be considered before impacts to higher quality habitat. Below are example habitats ranked from lowest to highest in quality and importance.
Common upland habitat impacted by exotic vegetation.
Common upland habitat, undisturbed.
Wetland buffers degraded with exotic vegetation.
Wetland buffers, undisturbed.
Wetlands, isolated and degraded.
Wetland systems, large and disturbed.
Wetland systems, large and undisturbed.
Wetland quality will be assessed using criteria established by the State of Florida.
The construction of the proposed facility shall not jeopardize the continued existence of threatened or endangered species as listed by
the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.
The design and construction of the proposed facilities complies with:
All State and Federal regulations and permitting requirements;
Comprehensive Plan policies contained in Section 8-4.A.8. regarding the protection of historical resources;
Comprehensive Plan policies contained in Section 8-4.B.1., regarding the location of public facilities within the Coastal High Hazard Area of the County;
Comprehensive Plan policies contained in Section 8-
4.A.1.g. and 9-4.A.7.g. of the Comprehensive Plan concerning the protection of endangered, unique or rare upland habitat; and
(e) Compliance with Sections 8-
4.A.1.c. and 9-4.A.7.c. of the Comprehensive Plan concerning the protection of wetlands of special concern.
The facility site has been selected as part of a review of alternative sites and, based on the criteria listed above, has been found to be the site most appropriate for the facility.
In summary, the Public Facilities Plan Amendment has two parts. The first part amends the FLUE, the Coastal
Management Element, and the Conservation and Open Space Element (in identical ways--see, e.g., Subsection (h)-wetlands and Subsections o. and q.-uplands) to provide for limited waivers and exceptions to the wetlands and uplands protection provisions of the Plan for stormwater treatment projects (STAs) constructed by the Martin County Board of County Commissioners and related facilities constructed as part of the Comprehensive Everglades Restoration Plan (CERP) in Martin County subject to several conditions.
The second part of the Public Facilities Plan Amendment creates, as part of the CIE, Chapter 14, an alternative method of determining consistency and special planning criteria for the siting and development of certain types of public facilities which are located within the Urban Services District (USD), i.e., within the PUSD and SUSD.
Is the Public Facilities Plan Amendment "in compliance?"
Public facilities must be built to implement the Goals, Objectives, and Policies (GOPs) of the Plan and provide the necessary services to the citizens of Martin County. There is evidence that, at times, one or more of the specific requirements of the Plan have inhibited the placement of public facilities where the facility would best serve the overall pubic good.
Martin County has grown by more than 25 percent in the last ten years, and much of that growth, especially within the last 20 years, has been concentrated inside the USD, thereby reducing the available vacant land for public facilities. In the main, this can be attributed to the application of Plan policies to manage growth.
In Martin County, based on a draft Population Technical Bulletin-December 2001, population growth is projected to continue at a rate of approximately 2.56 percent per year with a total county weighted average population of 201,289 by the year 2015, compared to a total county weighted average population of 140,285 for the census population of April 1, 2000. (A weighted average is used to account for peak population which includes the permanent population plus a percent of the peak population.)
It is likely that planning for the next 15 years will be more difficult because Martin County's Plan, by its terms, has kept growth inside the USD and has pushed growth onto the least environmentally sensitive sites and the previously impacted lands within the USD.
The increase in population within the USD has also proportionally increased the need for public services and public facilities to support the services.
Martin County planning staff has determined that many vacant parcels remaining within the USD have not been developed because of the existing environmental protections (for wetlands and uplands) in the Plan which limit development potential. Development of such vacant parcels for public facilities brings two or more public needs or interests into competition.10 One example given is: Should wetland impacts occur within the USD or should a fire station, a park or a library be built on the outer edges of the USD or outside the USD to avoid wetland impacts? As noted by Martin County planning staff, this is a policy decision not currently available to Martin County under the existing Plan.
For example, Martin County considered, over a three- to-four-year period, where to locate a fire station to serve the urbanized, yet unincorporated, area of Palm City. Considerable public funds were expended in this endeavor, analyzing potential sites for compliance with Plan policies. Fourteen sites were examined. Martin County must find and fund a site large enough to not only build a new facility but plan for future growth, as the urban area of Palm City has outgrown the capacity of the existing fire station. But, it appears that most of the sites either exceeded the budgeted amount or involved significant wetlands or other environmental issues which made the fire station not feasible.
Ultimately, a site was chosen for the fire station, but could not accommodate the battalion headquarters, physically connected to the fire station. The site was selected without knowing about two small wetlands on-site. It is uncertain whether the headquarters can be built on the site in an economically feasible or physically possible manner.
There are noted problems with the expansion of existing libraries, e.g., the Palm City and Hobe Sound libraries, in light of Plan and LDR requirements.
In an effort to determine which Martin County Plan policies were implicated by decisions relating to the siting of public facilities, a draft Public Facilities Impact Analysis matrix was created which listed over 100 Plan policies and other parameters that must be considered. (The matrix was furnished to the Department, but is not incorporated in any of the Plan Amendments. It serves as data and analysis. See Endnote 8.)
This matrix also lists the existing Plan provisions that create siting conflicts. For example, two items on the matrix concerning the preservation of wetlands and upland habitat are in conflict with the need to construct a new fire station.
Martin County facilities planners often must select sites that comply with each of the Plan requirements listed in the matrix in order to provide for needed facilities. While
this can be done, it cannot always be done in locations that promote sustainable growth and deter sprawl.
From a planning standpoint, it has become increasingly difficult for Martin County to adjust each of the
100 policies discussed in the matrix to prevent future conflicts.
In recent years, more emphasis has been placed on not only development within the USD, but development inside Community Redevelopment Areas (CRA). This has led to the establishment of a CRA in each of the following unincorporated areas: Jensen Beach, Rio, Hobe Sound, and Port Salerno. Three additional areas of Martin County are each working toward establishing a CRA, including Palm City, Indiantown, and Golden Gate. The location of public facilities in urban centers and especially CRAs are important features in the health of a sustainable community. Locating new public facilities potentially within CRAs and the USD is a legitimate policy objective.
Martin County decided to abandon the matrix approach and instead adopted a Plan Amendment which establishes a procedure for balancing the Plan GOPs for public facility capital improvement projects.
It is difficult to forecast the exact location for public facilities, especially in the USD. Often, there are
unique locational requirements for pubic facilities, although Ms. van Vonno was not aware of a problem for siting of projects currently included in the Capital Improvements Plan (CIP) and complying with native upland habitat protections.
Objective 4., Policy a. of the Capital Improvements Element, is amended to require that all Category A and now B public facility capital improvements must be consistent with the GOPs of the appropriate elements or as specified in newly created Objective 5. Category A and B public facilities are defined in the Plan to include facilities owned and operated by Martin County. See Endnote 6. (Objective 4 begins: "Manage the land development process to insure that all development receives public facility levels of service equal to, or greater than the standards adopted in Policies b., c. and d. of Objective 1.")
Policy b. of Objective 4 of the same element requires, in part, individual land use decisions to be consistent with Objective 5.
Objective 5 is added to the Capital Improvements Element as guidance to Martin County when seeking to balance the need for public facilities inside the USD.11 Objective 5 provides an alternative review process for capital projects to ensure that Martin County can continue to meet its public facility requirements as a local government.
As a threshold issue, in order to use this alternative process, there must be a determination that a public facility capital improvement is necessary and that the specific locational requirements or site development requirements make compliance with each and every policy in the Plan "physically impractical or financially unfeasible." (A necessary public facility is one that has been approved and funded by the Commission. It is the opinion of Martin County's current Assistant County Administrator and the former Capital Projects Director that the number of projects which are likely to undergo this alternative process is relatively small.)
In order for a public facility capital improvement to be considered for selection or location and construction and development pursuant to Objective 5., the criteria included in Objective 5., Policy a.(1) through (8) must be met. They are mandatory criteria. These factors are not weighted, yet they are interrelated.
The public facility must be listed in the adopted CIP and the site of the proposed public facility must be located within the PUSD and the SUSD. Stormwater and other related projects described, e.g., in Policy (h), if adopted in the CIP and other conditions precedent of Objective 5 are met, may be considered under Objective 5.
Objective 5 does not directly affect the Commission's decisions regarding placing facilities in the CIP.
Each year, Martin County prepares a five-year CIP that is financially feasible, which includes project information for all projects scheduled in the five-year planning period as well as an updated concurrency analysis for all public facilities except roads, sewer, and water, which are done separately and on a continuing basis. All of the rest are done on an annual update and published in the CIP.
Capital facility needs are based on existing and projected population figures. A five-year window of information yields an analysis regarding the current LOS and a deficit or surplus for a particular capital facility.
The CIP process begins in January and generally takes most of the year to complete. Planning staff start collecting detail sheets for each project. A draft CIP is prepared initially by staff and normally three public advertised workshops are held by the Commission. Affected municipalities and the public are invited to attend the workshops. This usually occurs in February or at the latest in mid-March. The Commission will have a straw vote on the CIP, usually by April.
Once the annual budget process in completed, a final resolution of the CIP and budget is prepared, and both are considered and adopted at an advertised public hearing. Whether
a specific project can meet the provisions of the Plan is not likely to be known at this time and not until preliminary design work is started. Data is compiled when site selection is made and due diligence done and when pre-design functions, e.g., soil borings, are performed.
Public hearings are also required when the Commission considers the actual construction of public facilities.
A concurrency determination is generally made when a development order is considered. A determination is also made when there is a proposal to change a land use, e.g., on a Plan FLUM. In short, public facilities are subject to concurrency.
While the subject of some differing opinions, as in the case of the School Siting Plan Amendment, public facilities which may be considered under this Plan Amendment, are subject to concurrency/LOS requirements. The language in Objective 5.a., "notwithstanding any other provisions of this Comprehensive Plan concerning concurrency with [LOS] requirements or adverse impacts to wetland or upland habitat. . . the Board. . . may approve the location and construction of a public facility. . . upon their determination that the following [(1)-(8)] are met" when read in isolation could lead to a different interpretation. However, when read in conjunction with other provisions of the Plan Amendment, including, e.g., Objective 5.a.(3)(a), it is more
reasonable to conclude that concurrency requirements are not waived.
On the other hand, Objective 5 establishes a different process and manner for applying concurrency to public facilities.
A different manner of complying with concurrency is reasonable because a public facility project must be listed in the adopted CIP, and the Plan Amendment requires a public facility to meet project specific requirements such as concurrency.
Martin County provides for the impacts of its public facilities and other public facilities by reflecting the impacts in the next CIP concurrency analysis and generating a project, if necessary, to accommodate the impact.
The proposed facility site must also be evaluated based on four separate criteria, (3)(a) through (d).
Under criterion (3)(a), an evaluation of the facility in light of county and state LOS requirements are considered as part of the "project specific requirements."
Under criterion (3)(b), the impact of the facility on environmental resources and the ability to mitigate negative impacts is evaluated.
Criterion (3)(c) requires evaluation of the facility in light of the site(s) future land use designation and zoning
district. This means that a site could not be selected if the type of facility is not authorized.
The design and layout of the proposed facility must be the least disruptive to wetland and upland habitats. This requirement is to be read in tandem with criterion (3)(b) which requires evaluation of the facility(s) impact on environmental resources and the ability to mitigate negative impacts; criterion (3)(d) which requires evaluation of the relative cost of alternative sites including the cost of mitigating or restoring natural resources; and the requirement in criterion (5), that negative impacts to wetland and upland habitat (other than those habitats listed, and as construed by one expert witness as "ordinary habitat") be avoided, and if they cannot be avoided, "such impacts shall be minimized and mitigated in accordance with state and federal permitting requirements."
Also, pursuant to criterion (5), "[i]mpacts to lower quality habitat shall be considered before impacts to higher quality habitat." This portion of Objective 5. establishes a continuum of examples of habitats ranked from lowest to highest in quality and importance, i.e., "[c]ommon upland habitat impacted by exotic vegetation" and "[w]etland systems, large and undisturbed" are the lowest and highest ranked habitats, respectively. "Wetland quality will be assessed using criteria established by the State of Florida."
Mitigation is a widely accepted way of protecting wetlands, and is specifically recognized in Rule 9J-5.013(3)(b), Florida Administrative Code, as a method to compensate for loss of wetlands functions. (Compare with the prior discussion on the School Siting Plan Amendment.)
With respect to upland habitats, other than those expressly excepted from the Plan Amendment, impacts to native upland habitats are to be avoided or minimized. Only common or ordinary upland habitat may be impacted.
Pursuant to criterion (6), the construction of a proposed facility shall not jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service.
In order to emphasize and clarify the intent of the Plan Amendment, specific provisions of the Plan cannot be waived, including those relating to the protection of historic resources; location of public facilities within the coastal high-hazard area of Martin County; protection of endangered, unique, or rare upland habitat; and protection of wetlands of special concern. The design and construction of any proposed public facility must comply with these requirements and all state and federal regulations and permitting requirements.
(Public facilities are not exempt from the limitation on public expenditures in coastal high-hazard areas.)
Finally, Objective 5 requires the selection of a public facility site which "has been found to be the site most appropriate for the facility" in light of the aforementioned criteria.
As noted herein, the Public Facilities Plan Amendment also amends the FLUE, the Coastal Management Element, and the Conservation and Open Space Element (in identical ways--see, e.g., Subsection (h)-wetlands and Subsections o. and q.-uplands) to provide for limited waivers and exceptions to the wetlands and uplands protection provisions of the Plan for STAs constructed by the Martin County Board of County Commissioners and related facilities constructed as part of the CERP in Martin County, i.e., not exclusively within the PUSD or SUSD, subject to several conditions.
Subsection (h) of the Plan Amendment authorizes these projects outside the USD. However, the Plan, through Section 4- 4.G.1.i., provides Policy i. which prioritizes the provision of public services and facilities and the allocation of public financial resources for public services and facilities in Martin County, first to the PUSD and then to the SUSD. Policy i. provides in part that "[p]ublic urban services which support or encourage urban development in other areas shall not be
provided, except for those improvements necessary to remedy an existing deficiency."
If Martin County is going to continue to discourage urban sprawl, public facilities should be accommodated within the USD, with the necessary balance of public interests and needs. Otherwise, they may need to be located in the rural and agricultural areas.
Plans are now underway by Federal and State agencies to construct reservoirs and STAs in Martin County that would filter and pre-treat the water leaving Lake Okeechobee and entering the Atlantic Ocean, via the C-44 Canal, the St. Lucie River, and the Indian River Lagoon.
The construction of STAs creates a potential conflict between two important goals: the public's interest in draining water out of Lake Okeechobee for flood control purposes and in controlling and pre-treating discharges before they enter the estuarine system, and the public's interest in protecting isolated freshwater wetlands and upland habitats within Martin County. As noted by Martin County planning staff:
The construction of STAs creates a potential conflict between multiple "public needs." The need to drain water out of Lake Okeechobee affects counties and thousands of people throughout south and central Florida. The need to control and pre-treat discharges of nutrient freshwater before it enters the St.
Lucie River and Indian River Lagoon estuarine system affects the ecological balance of the
St. Lucie River and the Indian River Lagoon along with the citizens of Martin and St.
Lucie Counties. The public needs mentioned above must be balanced against the need to protect isolated freshwater wetlands and upland habitat within Martin County.
CERP projects are important for the benefit of Martin County in terms of providing water quality, the proper distribution and release of water, and the clean up of water. Cleaning up the Everglades is considered of vast importance.
There are unique siting and locational requirements for public facilities such as stormwater facilities. For example, stormwater facilities are generally not placed on the highest grounds. They are generally in the low points in the community in terms of topography and roadways, and often are constrained because of right-of-way needs.
The Department has encouraged local governments to be flexible with regard to implementation of CERP projects because of the public interest in achieving the goals of the Everglades restoration. CERP projects, which are state and federal projects, proceed through an extensive planning process, which includes an alternatives analysis so that the project maximizes general public facilities.
Existing Plan policies do not provide waivers for stormwater management projects designed and constructed by local government.
The Martin County Plan has one of the strongest comprehensive plans in the State of Florida with regard to protection of natural resources and some of the most stringent wetlands protection policies, exceeding the state minimum standards.
Mitigation is a widely accepted way of protecting wetlands, and is specifically recognized as a method to compensate for loss of wetland functions. See Finding of Fact
141. (In terms of acreage, the Public Facilities Plan Amendment is likely to have a de minimus impact on wetland resources in Martin County.)
In the Plan, mitigation of wetland impacts is permitted under limited circumstances. Prior to the Plan Amendment, there were seven listed waivers and exceptions regarding "wetland alteration[s]" and this Plan Amendment creates the eighth.
The Plan Amendment provisions pertaining to stormwater projects provide waivers to the Plan GOPs concerning wetlands and uplands.
Policy (h) of the Plan Amendment requires that Martin County stormwater projects and CERP projects avoid and minimize impacts to wetlands, and provides a hierarchy of habitats if impacts cannot be avoided. Projects must be designed "to cause the least amount of negative impact to wetlands." Examples of
wetland habitats are ranked from lowest to highest in quality and importance.
"Wetland quality will be assessed using the criteria established by the State of Florida" and "[a]ll projects shall follow all State and Federal regulations and permitting requirements," which include mitigation requirements.
As in the case with all of the seven existing waivers to the wetlands policy, the persuasive evidence indicates that Policy (h) should be read in conjunction with the standard that there is no net loss of functions or the spacial extent of wetlands in Martin County. See Finding of Fact 96.
The Plan Amendment (Policies o. and q.) also permit a waiver of the Plan's upland habitat protection requirements detailed in Sections 8-4.1.e. through n. and 9-4.A.7.e. through p., respectively, "to the minimum extent necessary" for stormwater projects listed in the CIP and facilities constructed as part of the CERP.
Martin County also has some of the most stringent uplands protection policies in the State of Florida, with a goal of preserving 25 percent of native upland habitat on a countywide basis by 2005. See Findings of Fact 85-86.
There is a significant amount of land acquisition being undertaken by Martin County, the State of Florida, and the federal government in Martin County. It is unlikely that this
land will be developed. This land could contribute to Martin County being able to meet its goal of protecting 25 percent of native upland habitat on a countywide basis by 2005.
All projects (regarding Policies o. and q.) "shall be designed to cause the least amount of negative impact to upland habitat." Impacts are to be avoided.
The Plan Amendment specifies that waivers will be based on the principles "of protecting the highest quality habitat and impacting the lowest quality habitat." Examples are provided of habitats which are ranked from lowest to highest in quality and importance, i.e., common upland habitat impacted by exotic vegetation to common upland habitat which is undisturbed. Special habitat (endangered, unique or rare upland habitat) shall be protected as specified in the Plan.
"All projects shall follow all State and Federal regulations and permitting requirements." (However, there are no State and Federal mitigation requirements for upland habitats. See Finding of Fact 88.) Also, there are no mitigation requirements in Subsections (h), o., and q., for upland habitat loss. But again, impacts to upland habitats are to be avoided.
The Plan Amendment does not provide a waiver from the Plan protections afforded to special habitat (endangered, unique or rare upland habitat) as specified in Sections 8-4.A.1.g and
9-4.A.7.g. of the Plan. (For example, the Plan requires a 25 percent set aside in a preserve area for special habitat.)
Similar to Objective 5, no waiver to the Plan or LDRs for Martin County stormwater facilities or CERP projects "shall be granted that would jeopardize the continued existence of threatened or endangered species as listed by the Florida Fish and Wildlife Conservation Commission or the U.S. Fish and Wildlife Service."
The Public Facilities Plan Amendment affords protection to natural resources by requiring the least amount of impact and minimization and mitigation where required by permit regulations.
It is at least the subject of fair debate that the Public Facilities Plan Amendment is not inconsistent with the Plan.
It is at least the subject of fair debate that the data and analysis provided in this record for the Public Facilities Plan Amendment meet the statute and rule requirements.
It is at least the subject of fair debate that the Public Facilities Plan Amendment provides predictable and measurable standards and are not vague.
It is at least the subject of fair debate that the Public Facilities Plan Amendment will not lead to urban sprawl.
Part IV of Ordinance No. 606
Petitioners claim that Part IV of Ordinance No. 606 "could result in the elimination of important policies and objectives in the Comprehensive Plan without the due process review required for Comprehensive Plan Amendments." Part IV pertains to "conflicting provisions" and states: "Special acts of the Florida Legislature applicable only to unincorporated areas of Martin County, County ordinances and County resolutions or parts thereof, and other parts of the Martin County Comprehensive Growth Management Plan in conflict with this ordinance are hereby superceded by this ordinance to the extent of such conflict."
Martin County has approved amendments to Part IV in the "Stipulated Settlement Agreement" entered into by the parties in Case No. 02-1014GM resolving their differences regarding the Mixed Uses Plan Amendment 01-9 and Part IV of Ordinance No. 606. (The modified language is incorporated by reference herein.) Thus, the issue appears to be moot.
The 1990 "Stipulated Settlement Agreement"
In 1990, a "Stipulated Settlement Agreement" was agreed to by the parties in Department of Community Affairs, 1000 Friends of Florida, and Sally O'Connell v. Martin County,
Case No. 90-2327GM. In this agreement, numerous remedial plan amendments were agreed upon by the parties. Petitioners contend
that the Plan Amendments are inconsistent with the remedial amendments and thus render the entire Plan out of compliance.
A plan amendment must be consistent with existing comprehensive plan provisions in order to be "in compliance." In order to determine whether plan amendments are internally consistent with the comprehensive plan, the challenged plan amendments are evaluated in the context of the entire plan, not only those provisions which were adopted pursuant to a settlement agreement. If the plan amendment has the effect of causing the entire comprehensive plan to not be "in compliance," the plan amendment, (and not the entire plan,) will not be "in compliance," because the plan and the plan amendments are measured by the same criteria.
Further, consistency with the settlement agreement is not required and is not within the compliance criteria set forth in Section 163.3184(1)(b), Florida Statutes. The Plan Amendments must be consistent with the entire Plan, not the settlement agreement or the remedial amendments. As previously noted, it is at least the subject of fair debate that all of the Plan Amendments are not inconsistent with the Plan.
The doctrines of res judicata and collateral estoppel do not apply to the Plan Amendments at issue in this proceeding.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction to conduct a hearing on the subject matter of this proceeding. Sections 120.569, 120.57(1), and 163.3184(9)(a), Florida Statutes.
Standing
All of the Petitioners, Martin County, the City of Stuart, and the Martin County School Board, are "affected person[s]" with standing to participate as parties in this proceeding pursuant to Section 163.3184(1)(a), Florida Statutes. Burden of Proof
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).
Section 163.3184(9)(a), Florida Statutes, imposes the burden of proof on the person challenging a plan amendment that has been determined by the Department to be "in compliance."
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, Florida Statutes, the State Comprehensive Plan, the appropriate strategic regional policy plan, and Chapter 9J-
5, Florida Administrative Code. See Section 163.3184(1)(b), Florida Statutes.
Because the Department initially issued a Notice of Intent to find the Plan Amendments adopted by Ordinance Number 606 "in compliance," the Plan Amendments shall be determined to be "in compliance" if the local government's determination of compliance is "fairly debatable" as set forth in Section 163.3184(9)(a), Florida Statutes. Petitioners have the burden of demonstrating beyond fair debate that the plan amendments are not "in compliance."
The term "fairly debatable" is not defined in Chapter 163, Florida Statutes, or Chapter 9J-5, Florida Administrative Code. The Supreme Court of Florida has opined, however, that the fairly debatable standard under Chapter 163, Florida Statutes, is the same as the common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Court opined: "The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety." (citation omitted). Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further: "[A]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or
controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." Martin County v. Yusem, 690 So. 2d at 1295. Nevertheless, "local government action still must be in accord with the procedures required by Chapter 163, Part II, Florida Statutes, and local ordinances." Id. (citation omitted).
Data and Analysis
Petitioners contend that the Plan Amendments are not based upon relevant and appropriate data and analysis as required by Section 163.3177(6), (8), and (10), Florida Statutes, and Rule 9J-5.005(2)(a), Florida Administrative Code.
Any amendment to a comprehensive plan must be based upon appropriate data. Although such data need not be original data, local governments are permitted to utilize original data as long as appropriate methodologies are used for data collection. Section 163.3177(8) and (10)(e), Florida Statutes.
Rule 9J-5.005(2), Florida Administrative Code, requires that, in order for a plan provision to be "based" upon relevant and appropriate "data," the local government must "react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." The data must also be the "best available existing data" "collected and applied in a professionally acceptable manner."
Rule 9J-5.005(2)(a)-(c), Florida Administrative Code; Section 163.3177(10)(e), Florida Statutes.
However, the data and analysis which may support a plan amendment are not limited to those identified or actually relied upon by a local government. All data available to a local government in existence at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding. Zemel v. Lee County, et al., 15 F.A.L.R. 2735 (DCA June 22, 1993), aff’d, 642 So. 2d 1367 (Fla. 1st DCA 1994). See also The Sierra Club, et al. v. St. Johns County, et
al., Case Nos. 01-1851GM and 01-1852GM, 2002 WL 1592234 (DOAH
May 20, 2002; DCA July 30, 2002) ("The ALJ need not determine whether the [local government] or the Department were aware of the data, or performed the analysis, at any prior point in time." (citation omitted.)) Analysis which may support a plan amendment, however, need not be in existence at the time of the adoption of a plan amendment. See Zemel, supra. Data which existed at the time of the adoption of a plan amendment may be subject to new or even first-time analysis at the time of an administrative hearing challenging a plan amendment. Id.
Petitioners did not prove beyond fair debate that the Plan Amendments are not supported by appropriate data and analysis. This record contains appropriate data and analysis to support the Plan Amendments at issue in this proceeding.
Petitioners did not prove that the data relied on by Martin County was not the "best available data," nor that Martin County did not "react to it in an appropriate way and to the extent necessary," as required by Rule 9J-5.005(2)(a)-(c), Florida Administrative Code and Section 163.3177(10)(e), Florida Statutes.
The data and analysis of record support Martin County's concerns regarding the siting and construction of public schools and public facilities. The decisions reached by Martin County regarding the Plan Amendments are within the range of discretion afforded to local governments and are supported by the data and analysis.
Internal Consistency
Petitioners contend that the Plan Amendments are not consistent with other provisions of the Plan. Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5)(a), Florida Administrative Code, require the elements of a comprehensive plan to be internally consistent. To be "internally consistent," comprehensive plan elements must not conflict. If the objectives do not conflict, then they are coordinated, related, and consistent. See generally Schember v. Department of Community Affairs, Case No. 00-2066GM (DOAH July 16, 2001; DCA Oct. 24, 2001). See Conclusions of Law 198-204.
A plan amendment creates an internal inconsistency when it has the effect of conflicting with an existing provision of the comprehensive plan. If an amendment expressly creates an exception or waiver to a general rule set forth in the plan, it does not create an internal inconsistency. However, such exceptions and waivers should be scrutinized to ensure that minimum "in compliance" criteria are met.
As noted in the Findings of Fact, there are several rule and statutory provisions which are designed to require local governments to protect natural resources including wetlands and various native habitats, including vegetation and wildlife.
The wetlands and upland habitat provisions contained in the School Siting and Public Facilities Plan Amendments are designed to fit within the Plan and do not create internal inconsistencies with the Plan. It is at least the subject of fair debate that the Plan Amendments meet the consistency requirements (including but not limited to natural resource protections) of Chapter 9J-5, Florida Administrative Code, and Chapter 163, Part II, Florida Statutes.
Part IV of Ordinance No. 606
Petitioners claim that Part IV of Ordinance No. 606 "could result in the elimination of important policies and objectives in the Comprehensive Plan without the due process
review required for Comprehensive Plan Amendments." Part IV pertains to "conflicting provisions" and states: "Special acts of the Florida Legislature applicable only to unincorporated areas of Martin County, County ordinances and County resolutions or parts thereof, and other parts of the Martin County Comprehensive Growth Management Plan in conflict with this ordinance are hereby superceded by this ordinance to the extent of such conflict." Whether Part IV violates due process is a question beyond the scope of this proceeding and the jurisdiction of the Division of Administrative Hearings. Gulf
Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc.,
361 So. 2d 695, 699 (Fla. 1978); Florida Hospital v. Agency for Health Care Administration, 823 So. 2d 844, 849 (Fla. 1st DCA 2002). Further, Part IV of Ordinance No. 606 is not a plan amendment in and of itself, but is part of the enacting Ordinance and this conclusion has been adopted by the Department in Sally O'Connell, et al. v. Department of Community Affairs and Martin County, Case No. 01-4826GM, 2002 WL 31455683 (DOAH Oct. 16, 2002; DCA Jan. 3, 2003) ("The Department accepts the ALJ's legal conclusion that the validity of this provision, which has no clear effect on the Plan or the Plan Amendments, is not a proper subject for compliance review.")
Notwithstanding the resolution of this issue, Martin County has approved amendments to Part IV in the "Stipulated
Settlement Agreement" entered into by the parties in Case
No. 02-1014GM resolving their differences regarding the Mixed Uses Plan Amendment No. 01-9 and Part IV of Ordinance No. 606. (The modified language is incorporated by reference herein.) Thus, the issue appears to be moot.
The 1990 "Stipulated Settlement Agreement"
In 1990, a "Stipulated Settlement Agreement" was agreed to by the parties in Department of Community Affairs, 1000 Friends of Florida, and Sally O'Connell v. Martin County, Case No. 90-2327GM. In this agreement, numerous remedial plan amendments were agreed upon by the parties. Petitioners contend that the Plan Amendments are inconsistent with the remedial amendments and thus render the entire Plan out of compliance.
The appropriate scope of review in this proceeding is set forth in Section 163.3184(9)(a) and (b), Florida Statutes, which limits the "in compliance" review to the "plan or plan amendments" which are the subject of the proceeding, not pre- existing plan provisions, or as here, the 1990 remedial amendments. Furthermore, a plan amendment is not required, as a matter of law, to be consistent with a prior, unrelated, settlement agreement because it is not on the list of compliance criteria set forth in Section 163.3184(1)(b), Florida Statutes. See, e.g., Schember v. Department of Community Affairs, Case
No. 00-2066GM (DOAH July 16, 2001; DCA Oct. 24, 2001). (In
Schember, the Administrative Law Judge concluded, in part, that pre-existing plan provisions are not subject to review or challenge under Section 163.3184(9), and "the question is the compliance of the amended portion of the plan, not the [unamended] plan provisions." Recommended Order at page 73, Conclusion of Law 163.)
A plan amendment must be consistent with existing comprehensive plan provisions in order to be "in compliance." In order to determine whether plan amendments are internally consistent with the comprehensive plan, the challenged plan amendments are evaluated in the context of the entire plan, not only those provisions which were adopted pursuant to a settlement agreement. If the plan amendment has the effect of causing the entire comprehensive plan to be not "in compliance," the plan amendment, not the entire plan, will not be "in compliance" because the plan and the plan amendments are measured by the same criteria.
Furthermore, planning is an ongoing process in which plans are continually monitored, evaluated, and updated. See, e.g., Sections 163.3187(1) and 163.3191(1) and (2), Florida Statutes. If Petitioners' position is adopted, it might necessitate a re-evaluation of prior plans which is not contemplated.
Nevertheless, as stated herein, it is at least the subject of fair debate that the Plan Amendments are not inconsistent with the Plan.
Is a showing of "need" for the Plan Amendments required?
Under the land use analysis section of Rule 9J- 5.006(2), Florida Administrative Code, there is a requirement to evaluate the needs of the future population. This stems from the requirements of Section 163.3177(6)(a), Florida Statutes, which, as used in growth management, refers to the amount of land required to accommodate anticipated growth. Local governments are to analyze by acreage how much land within each land use category they need to accommodate projected growth through the planning time frame, and then base their comprehensive plan on this estimate. Rule 9J-5.006(2)(c), Florida Administrative Code. See also Rule 9J-5.006(5)(g)1., Florida Administrative Code. This usually results in the calculation of an allocation ratio to express this need by dividing the development potential by the projected population. In this manner, it can be determined whether a particular plan or plan amendment adequately addresses the needs of the population.
However, it is apparent that the "need" evaluation contemplated in these provisions is tied to the "urban sprawl rule," Rule 9J-5.006(5), Florida Administrative Code. In other
words, the statutory needs analysis for the urban setting is carried out in the urban sprawl rule, and it is at least the subject of fair debate that the Plan Amendments continue the Plan's efforts to discourage urban sprawl. The lack of need for the Plan Amendments, as argued by Petitioners, is rejected.
Does Chapter 2002-296, Laws of Florida, apply?
Petitioners contend that recent amendments to the Growth Management Act and the State School Code enacted by Chapter 2002-296, Laws of Florida, apply in this proceeding. See Chapter 2002-296, Section 5, Laws of Florida, creating Section 163.31777, the "Public Schools interlocal agreement." The Department has previously determined that "the version of the Act which was in effect on the date of plan amendment adoption, rather than the version in effect on a later date, should be used to determine compliance." The Sierra Club, et al. v. St. Johns County, et al., Case Nos. 01-1851GM and 01- 1852GM, 2002 WL 1592234 (DCA July 30, 2002 at 13). See also Chapter 2002-296, Section 34, Laws of Florida, which provides that "[i]t is the intent of the Legislature that section 5 or section 23 of this act shall not affect the outcome of any litigation pending on the effective date of this act, including any future appeals. It is the further intent of the Legislature that section 5 or section 23 of this act do not serve as legal
authority in support of any party to such litigation or any such appeal thereof."
In light of the foregoing, the 2002 amendments do not apply in this proceeding.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be issued concluding that the Plan Amendments Nos. 01-11 and 01-12 adopted by Martin County pursuant to Ordinance No. 606 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder.
DONE AND ENTERED this 1st day of July, 2003, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2003.
ENDNOTES
1/ Proposed policies 14-4.A.4.c. and 14-4.A.4.d. provided:
Where a public facility listed in the approved Capital Improvements Plan, would require a waiver to any of the Goals, Objectives or Policies of the MCCGMP so that said public facility can be located in the Primary or Secondary Urban Services District; the Board of County Commissioners may approve such a waiver to provide for the public health, safety and welfare.
Any waivers of Comprehensive Plan, Goals, Objectives and Policies for public projects, will be based on Public Project Impact Analysis to be developed based on Comprehensive Plan Objectives and Sustainable Communities Principles. This Impact Analysis will be developed by December, 2002 and be adopted by resolution of the Board of County Commissioners.
Martin County deleted this language and added a new Objective 5, which appears in Finding of Fact 99, infra, which was found to be "in compliance."
2/ Prior to the Council's decision regarding the staff Memorandum, by letter of October 18, 2001, Ms. van Vonno explained the reasons for the waiver language relating to public facilities and requested the Council to provides its position as a "comment" rather than an "objection" which the Council accepted. Ms. van Vonno provided the Council with "general criteria" and "suggested additional language." Several of these criteria were adopted in the final Public Facilities plan amendments. Ms. van Vonno relied, in part, on other staff for information in this letter.
3/ Under the "waivers and exceptions" provisions in three elements (Objective 1, Policy b of the Coastal Management Elements, Objective 7, Policy b of the Conservation and Open Space Element, and Section 4.5 part B of the FLUE), the proposed plan amendment provided: "(h): Stormwater treatment projects constructed by the Martin County Board of County Commissioners
and reservoirs, stormwater treatment areas and related facilities constructed as part of the Comprehensive Everglades Restoration Plan in any part of Martin County." This provision was amended in the final Plan Amendments.
4/ "Favor" is not defined in the Plan or School Siting Plan Amendment. However, "favor" means in part: "1.a. A kind, gracious, or friendly attitude. b. An act exhibiting such an attitude. 2.a. Friendly regard shown esp. by a superior: PARTIALITY. b. A state of being held in such regard. 3. Approval or support : SANCTION." Webster's II New College Dictionary 409 (1999).
5/ Mr. Metcalf believed that the School Siting Plan Amendment requires that the highest-ranking site among the alternatives be chosen and that the site chosen be the one that is the most consistent with the Plan as compared to all other alternatives. Mr. Metcalf interprets the language "maximizes the public benefit" as measured by the criteria in paragraphs (1)-(5). For Mr. Metcalf, maximum "means the best."
6/ "Mandatory public facilities" are "those facilities listed as Category A and Category C." Category A public facilities include, but are not limited to, arterial and collector roads, public transportation, mass transit, community parks, drainage, potable water. . . and public safety-emergency medical services and fire protection services (all other public facility facilities are Category B facilities) facilities owned or operated by the County, all of which are addressed in other elements of t[he Plan]." "Category 'B' public facilities are libraries, correctional institutions, and other government facilities owned or operated by the County." "Category 'C' public facilities are arterial and collector roads owned or operated by federal or state governments, and potable water and sanitary sewer facilities, owned or operated by independent districts or private organizations." CIE, Section 14-1.B.2. and
12 of the Plan.
7/ The Legislature does not appear to have authorized compliance with LOS standards, in this context, to the "maximum extent practicable." Compare Section 163.3177(6)(a), Florida Statutes. ("Each local government shall include lands contiguous to existing school sites, to the maximum extent possible. ")
8/ The matrix referred to herein appears to be attached to the August 8, 2001, Interlocal Agreement which is not incorporated in the Plan Amendment. Another Public Project Impact Analysis Matrix appears as Melzer Exhibit 13, Attachment B, pages 37-48, which also was not adopted as part of any Plan Amendment.
However, both matrixes were provided to the Department in response to the ORC.
9/ The same language appears in the Coastal Management Element in Section 8-4.A.1.b.(6), "Wetlands, General Provisions," and adds a new Subsection 8-4.A.1.b.(6)(h)1)-3) under the "Waivers and Exceptions" portion, which currently provides seven waivers and exceptions. The same language appears in the Conservation and Open Space Element in Section 9-4.A.7.b., "Wetlands, General Provisions," and adds a new Subsection 9-4.A.7.b.(7)(h)1)-3) under the "Waivers and Exceptions" portion, which currently provides seven waivers and exceptions.
10/ For example, existing Plan policies protect wetlands and allow impacts to wetlands, along with mitigation, only under limited circumstances and where all reasonable use of a parcel would be precluded. Another existing policy requires a percentage of upland habitat be preserved on-site. Waivers of this latter policy occur only for residential lots created prior to 1990 and where a preclusion of reasonable use would occur.
11/ Objective 5.a.(2) requires that any site for a proposed public facility capital improvement must be located within the PUSD or the SUSD, which is consistent with the Martin County goal of containing urban sprawl.
COPIES FURNISHED:
David A. Acton, Esquire
Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397
Terrell K. Arline, Esquire 3205 Brentwood Drive
Tallahassee, Florida 32309-2705
Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Richard J. Grosso, Esquire
Environmental and Land Use Law Center, Inc. 3305 College Avenue
Fort Lauderdale, Florida 33314-7721
Lisa Interlandi, Esquire
Environmental & Land Use Law Center, Inc.
224 Datura Street, Suite 201
West Palm Beach, Florida 33401-5630
Linda Loomis Shelley, Esquire Fowler, White, Boggs & Banker, P.A. Post Office Box 11240
Tallahassee, Florida 32302-3240
Joan Wilcox, Esquire
Environmental & Land Use Law Center, Inc. 2336 East Ocean Boulevard, PMB 110
Stuart, Florida 34996-3319
Carl Coffin, Esquire City of Stuart
121 Southwest Flagler Avenue Stuart, Florida 34994-2139
Colleen M. Castille, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
David L. Jordan, Acting General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee Florida 32399-2100
Johnathan A. Ferguson, Esquire Ruden, McClosky, Smith, Schuster
& Russell, P.A.
145 Northwest Central Park Plaza Suite 200
Port St. Lucie, Florida 34986-2482
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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 2003 | Agency Final Order | |
| Sep. 26, 2003 | Agency Final Order | |
| Jul. 01, 2003 | Recommended Order | School siting and public facility plan amendments adopted by Martin County were subject to fair debate and therefore "in" compliance with applicable provisions of Chapter 16, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. |
