STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7438GM

)

ST. LUCIE COUNTY, )

)

Respondent, )

and )

)

BRIAN CHARBONEAU and KATHY )

CHARBONEAU, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on April 15 and 16, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Karen Brodeen, Assistant General Counsel

David J. Russ, Assistant General Counsel Andrea England, Assistant General Counsel Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: Daniel S. McIntyre, County Attorney St. Lucie County

2300 Virginia Avenue

Ft. Pierce, Florida 34982-5652

and

H. Michael Madsen, Esquire

Messer, Vickers, Caparello, Madsen, Lewis, Golman & Metz, P.A.

Post Office Box 1876 Tallahassee, Florida 32302-1876

For Intervenors: David A. Theriaque, Esquire

Apgar & Theriaque 820 East Park Avenue

Building F, Suite 100 Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether an amendment to the St. Lucie County Comprehensive Plan which was adopted by ordinance number 92-029 has rendered the St. Lucie County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?

PRELIMINARY STATEMENT

On or about September 22, 1992, the Board of County Commissioners of the Respondent, St. Lucie County, Florida, adopted ordinance number 92-029 amending the St. Lucie County Comprehensive Plan which the County had adopted, in accordance with the 1985 Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes.

Following review of St. Lucie County's plan amendment, the Petitioner, the Department of Community Affairs, determined that the plan amendment was not "in compliance", issued a Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance and published notice thereof.

On December 16, 1992, the Petitioner filed a Petition of the Department of Community Affairs with the Division of Administrative Hearings. The matter was assigned case number 92-7438GM and was assigned to the undersigned.

On January 22, 1993, the final hearing of this case was scheduled for April

15 and 16, 1993. At the request of the parties, the hearing was set for Tallahassee, Florida.

On February 17, 1993, Brian Charboneau and Kathy Charboneau filed a Petition for Leave to Intervene. The petition was granted by an Order Granting Intervention entered February 18, 1993.

On March 18, 1993, the Petitioner filed DCA's Motion for Leave to Amend Petition. The Petitioner requested leave to amend its petition to raise an issue concerning an alleged failure of the Respondent to comply with the notice requirements of Section 163.3184(15)(b)2, Florida Statutes (1992 Supp.). The Respondent filed St. Lucie County's Response in Opposition to the Department of Community Affairs' Motion for Leave to Amend. Following oral argument of the parties on April 7, 1993, an Order Denying DCA's Motion for Leave to Amend Petition was entered.

At the final hearing the Petitioner presented the testimony of Terry Virta, John Healey, Robert Pennock, Joe Schuster, Terry Hess, Arthur C. Nelson and Robert Gray. All of the Petitioner's witnesses except Mr. Virta were qualified as expert witnesses. Twenty-five exhibits were offered by the Petitioner and were accepted into evidence.

The Respondent presented the testimony of Terry Virta. Seventeen exhibits were offered by the Respondent for identification. St. Lucie exhibits 1-8, 10-

14 and 16-17 were accepted into evidence. St. Lucie exhibits 9 and 15 were not offered.

The Intervenors presented the testimony of Terry Virta and Howard M. Landers. Mr. Landers was qualified as an expert witness. The Intervenors did not offer any exhibits. The parties stipulated that the Intervenors have standing to participate in this proceeding.

At the conclusion of the final hearing, the Petitioner requested leave to conform the Petitioner's pleadings to the evidence that had been admitted. The Respondent and Intervenors objected to the request. A ruling on the request to conform was reserved and is discussed, infra.

A transcript of the final hearing was filed on May 17, 1993. Pursuant to an agreement of the parties approved by the undersigned at the conclusion of the final hearing, proposed recommended orders were due within thirty days of the filing of the transcript, or June 16, 1993. On June 10, 1993, the Petitioner filed St. Lucie County's Motion for Enlargement of Time requesting an additional seven days to file proposed recommended orders. An Order was entered granting this extension and informing the parties that proposed recommended orders were due on or before June 23, 1993.

On June 23, 1993, the Petitioner and the Respondent filed proposed recommended orders. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. The Intervenors filed a notice indicating their intent to rely upon the proposed recommended order of the Respondent.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto.

      
      

   2. The Respondent, St. Lucie County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan.

      
      

   3. The Intervenors, Brian Charboneau and Kathy Charboneau, are the owners of a parcel of real property located in the County, which is the subject of the comprehensive plan amendment that is the subject of this proceeding. The parties stipulated that the Intervenors have standing to participate in this proceeding.

      
      

2. General Description of the County.

   
   

   1. The County is a generally rectangular-shaped area located on the southeastern coast of Florida.

      
      

   2. The County is bounded on the east by the Atlantic Ocean, on the west by Okeechobee County, on the north by Indian River County and on the south by Martin County.

      
      

   3. Geographically, the County consists of approximately 600 square miles, or approximately 384,000 acres. Approximately 513 square miles, or

      approximately 328,320 acres, of the County are unincorporated and subject to land use planning by the County.

      
      

   4. The significant man-made features of the County include Interstate 95, the Florida Turnpike, State Highway 70 and the Fort Pierce International Airport. The airport is operated by the County.

      
      

   5. There are two incorporated areas within the County: Fort Pierce and Port St. Lucie. The majority of urban development within the County is located within these municipalities and consists mainly of detached, single-family residential dwellings and multifamily units.

      
      

   6. The estimated permanent population projected in the Plan for the County in 1990 was approximately 151,700. Including seasonal population, the estimated population for the County for 1990 was approximately 182,400.

      
      

   7. The majority of the County's land area is used for citrus production. The majority of the agricultural land use in the County is located within the County's unincorporated area, to the west of Interstate 95 and the Florida Turnpike, which both run generally north and south through the County.

      
      

   8. As a result of recent cold weather in areas of Florida north of the County, citrus production in the County has increased in recent years by approximately 35,500 acres between 1978 and 1992.

      
      

   9. Major natural divisions of the County are the Atlantic Coastal Ridge (including barrier islands), the Eastern Valley and the Osceola Plain.

      
      

3. Adoption of the County's Comprehensive Plan.

   
   

   1. On January 9, 1990, the County adopted a comprehensive plan pursuant to the Act (hereinafter referred to as the "Plan"). The Plan applies to, and governs growth within, the unincorporated area of the County. The Plan excludes areas within the municipalities of Fort Pierce and Port St. Lucie. (Unless otherwise specified, any further reference to the County constitutes a reference to only the unincorporated areas of the County subject to the Plan.)

      
      

   2. The Plan was based, in part, on an earlier comprehensive plan adopted by the County in 1975 pursuant to the former Local Government Comprehensive Planning Act.

      
      

   3. The goals, objectives and policies of the Plan and the Future Land Use Map of the Plan were adopted by the County by ordinance. Data and analysis submitted by the County to the Department with the Plan was not adopted by the County by ordinance.

      
      

   4. The Department reviewed the Plan and on March 21, 1990, filed a Statement of Intent to find the Plan not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. A notice of the Department's determination was published in a local newspaper.

      
      

   5. The Department determined that the Plan was not "in compliance", in part, because of a conclusion that the Plan allocated twice as much land area to residential land use categories as data concerning the expected population of the County for the year 2015 justified. The Department, therefore, concluded that the Plan was not based on data and analysis, and did not discourage the proliferation of urban sprawl.

   6. The County and the Department entered into settlement negotiations which resulted in the execution of a Stipulated Settlement Agreement in October of 1990 disposing of the Department's objections to the Plan. Pursuant to the agreement, the Department agreed that it would find the Plan "in compliance" if the County adopted certain remedial amendments to the Future Land Use Element of the Plan. The terms of the agreement were subsequently carried out. See DCA exhibit 4.

      
      

   7. The remedial amendments were adopted in part due to the Department's concern about the the proliferation of urban sprawl. This concern was addressed through the remedial amendments by adding certain development controls and requiring clustering of residential development on lands classified agricultural.

      
      

   8. The remedial amendments also included Policy 1.1.2.4 and Policy

      1.1.2.5. Policy 1.1.2.4 is quoted, infra, in finding of fact 123. Policy

      1.1.2.5 provides:

      
      

      Provide adequate buffering and/or setbacks between agriculture and non-agricultural uses to protect such agricultural uses from adverse impacts associated with enforcement of nonagricultural development or creation of nuisances by agricultural operations.

      
      

      DCA exhibit 4.

      
      

   9. The remedial amendments also include Objective 1.1.5 and related policies governing development within the Urban Service Area.

      
      

4. The Future Land Use Element of the Plan.

   
   

   1. The Future Land Use Element and the Future Land Use Map of the Plan reflect a long-term planning period of twenty-five years, ending with the year 2015.

      
      

   2. In the Introduction of the Future Land Use Element of the Plan (DCA exhibit 1 and St. Lucie County exhibit 1), there is a general description of the Future Land Use Element:

      
      

      The Future Land Use Element has been divided into a series of sections which analyze the existing patterns of development within the community, portray future patterns of develop- ment and recognize unique or special areas within the community that should be considered in future land use determinations. Integral to the success of the Comprehensive Plan are the Goals, Objectives, and Policies which

      will be used to direct the location and intensity of development for the variety of uses necessary for a healthy and diversified community.

      Page 1-1, St. Lucie County exhibit 1.

      
      

   3. The Future Land Use Element of the Plan includes the following "major development philosophy":

      
      

      Over the years, the County has been requested to approve development proposals that would permit the encroachment of urban uses in areas previously used for agricultural purposes.

      Many of these areas are outside of what may be considered the communities existing urban form or pattern. As discussed later in this element, the cost of providing the necessary community services to these development sites is becoming an increasing community concern.

      . . .

      
      

      Page 1-6, St. Lucie County exhibit 1. The Future Land Use Element of the Plan goes on to recognize the importance of citrus production:

      
      

      The major use of land within the unincorporated areas of the County is agriculture. Well

      over 60 percent of the County is presently used for the production of citrus, cash crops or ranching activities. These agricultural activities account for St. Lucie County being ranked among the top citrus producers in the State of Florida, contributing substantially to the local and regional economy.

      
      

      Page 1-11, St. Lucie County exhibit 1.

      
      

   4. Sixteen general categories of future land use are identified and defined in the Future Land Use Element of the Plan:

      
      

      1. Agriculture: 5 and 2.5.

      2. Residential: Estate, Suburban, Urban, Medium, High.

      3. Residential/Conservation.

      4. Conservation-Public.

      5. Commercial.

      6. Industrial.

      7. Public Facilities.

      8. Transportation/Utilities.

      9. Historic.

      10. Mixed Use.

      11. Special District.

          
          

   5. The density of development for the residential categories established in the Plan are 1 unit per acre for Estate, 2 units per acre for Suburban, 5 units per acre for Urban, 9 units per acre for Medium and 15 units per acre for High.

      
      

   6. The density for residential use of the agriculture categories established in the Plan are 1 unit per 2.5 acres for Agriculture-2.5 and 1 unit per 5 acres for Agriculture-5.

   7. Population estimates contained in the Future Land Use Element of the Plan are based upon estimates of population of the University of Florida Bureau of Economic and Business Research. The Plan indicates that the County has determined that the University's "high" projections appear to reflect more accurate population projections for the County. The projections concerning population contained in the Future Land Use Element and in this Recommended Order are based upon those "high" projections.

      
      

   8. Based upon the Plan's data and analysis projections, it is estimated that the permanent population of the entire County was 135,715 in 1988 and 318,650 in 2015. With the seasonal population added, based largely on agriculture related increases in population, the population was estimated at 154,141 in 1988 and 382,380 in 2015. Thus, the estimated increase in the population for the entire County from 1988 to 2015 is 182,935 permanent residents and 219,522 permanent and seasonal residents.

      
      

   9. In the County alone, the permanent population is estimated to be 54,226 in 1988. For the year 2015, the estimated permanent population is 93,045. With the seasonal population added, the population for 1988 is estimated at 65,119 and 111,654 for the year 2015. Therefore, the estimated total increase in population for the year 2015 is 38,779 permanent residents and 46,535 permanent and seasonal residents.

      
      

   10. For the year 1988, the Future Land Use Element of the Plan includes an estimate that the existing acreage being used for residential purposes was 16,900 acres. The Plan's Housing Element includes an estimate of only 12,369 acres of residential land use in 1988.

       
       

   11. To determine projected residential land use needs for the year 2015, the Future Land Use Element provides the following:

       
       

       For the purpose of determining the future land use needs in the community, a ratio has been established which is based upon current (1988) development conditions. This ratio was determined by dividing the seasonal population of the County in 1988 by the estimated amount of land consumed by broad land use category type. . . .

       
       

       Page 1-22, St. Lucie County exhibit 1. Actually, the ratio was determined by dividing the permanent population of the County in 1988, and not the seasonal population, by the estimated amount of land being used for residential purposes.

       
       

   12. The ratio of population in 1988 to residential acreage use in 1988 results in an estimate of the historical, minimum amount of residential acreage used in the County per 1,000 residents. Thus, it is concluded in the Plan that

       312 acres (16,900 acres in residential use in 1988 divided by 54,226 permanent residents in 1988), or .312 acres per person have been used historically for residential purposes. Based upon the estimate of land in residential use in 1988 contained in the Housing Element of the Plan, the ratio is .228 (12,369 acres in 1988/54,226 1988 population).

       
       

   13. Applying the historical ratio of permanent residents per acre of residential acreage of .312 to the projected seasonal population in the year 2015 of 111,654, the Future Land Use Element of the Plan estimates that the total residential acreage needed by the year 2015 will be 34,836 acres: 111,654

       x .312 = 34,836. The estimated total residential acreage needed in the year 2015 based upon the estimated residential acreage in 1988 contained in the Plan's Housing Element is 25,457 acres: 111,654 x .228 = 25,457.

       
       

   14. If the historical ratio of permanent residents per acre of residential acreage of .312 is applied to the projected increase in permanent population by the year 2015 of 38,779, the additional residential acreage needed by the year 2015 will only be 12,099 acres. Based upon this analysis, there will be a need for a total of 28,999 acres of residential land for permanent residents by the year 2015 (16,900 1988 acres + 12,099 projected need). Using the Plan's Housing Element ratio of .228 and the projected increase in permanent population results in a conclusion that there will be a need for an additional 8,841 acres of residential land.

       
       

   15. Based upon the projected population growth in permanent and seasonal residents for the year 2015 (46,535 increase in seasonal population) and applying the Plan's historical ratio of residential acres per 1,000 people (.312), the projected additional acreage needed for residential use by the year 2015 is 14,518 acres. Based upon this analysis, there will be a need for a total of 31,418 acres of residential land for the seasonal population by the year 2015 (16,900 1988 acres + 14,518 projected need).

       
       

   16. Applying the Plan's historical ratio of residential acres per 1,000 people to determine projected additional residential acreage need and using the projection of acreage in residential use in 1988 contained in the Housing Element, there is a need for only 26,887 total acres of residential land (12,369 1988 acres + 14,518 projected need).

       
       

   17. In the Plan, the County applied the historical residential ratio of

       .312, which is based upon 1988 permanent population, to the total projected 2015 permanent and seasonal population of 111,535 and concluded that there is a need for a total of 34,836 acres for residential use in 2015. This amounts to a total of 17,936 additional acres (34,836 - 16,900). Based upon the calculations contained in findings of fact 33 through 37, the Plan's projection of additional residential acreage is incorrectly high. Whether the Plan's higher estimate of need is used does not, however, appreciably affect the following determinations. Therefore, for purposes of this Recommended Order, the Plan's incorrect estimate of additional residential acreage needed will be used.

       
       

   18. The Future Land Use Map of the Plan reflects the County's conclusion that there are approximately 70,989 acres of land in the County available for residential use, not including potential residential development of land designated for agricultural use of one dwelling per 2.5 acres or per 5 acres, and excluding land involved in three amendments to the Plan, including the subject amendment. The 70,989 acres includes acreage already in residential use in 1988 (16,900 acres) and vacant acreage available for residential use through the year 2015.

       
       

   19. It is estimated in the Plan that there are 2.34 people per dwelling unit in the County.

       
       

   20. The remedial amendments to the Plan the County agreed to adopt did not remove any of the 70,989 acres of land allocated on the Future Land Use Map for residential use, modify densities, or modify the agricultural classifications of the Future Land Use Map.

   21. The Plan designates a portion of the County as an Urban Service Area. The Urban Service Area is depicted on the Future Land Use Map of the Plan.

       
       

   22. The Urban Service Area is generally described, in pertinent part, as follows:

       
       

       . . . . This area represents the preferred regions for development at urban intensities. The area indicated is the most likely to have centralized water and wastewater services provided by either a municipal utility or a privately operated regional enterprise. The intent of the urban service area designation is to restrict the negative impacts of a sprawling low density development pattern and the fiscal burden that pattern of development has on the ability of the community to meet its service needs.

       
       

       The Urban Service Area is not designed to be a permanent or static limitation on growth. Rather, it is intended to indicate the areas of the County that can reasonably be expected to be provided with necessary community services during the fiscal planning periods of this plan [to 2015].

       . . . .

       
       

       Page 1-40, St. Lucie County exhibit 1.

       
       

   23. The western boundary of the Urban Service Area runs generally north and south along the western boundary of Fort Pierce and Port St. Lucie. The eastern boundary is the Atlantic Ocean.

       
       

   24. Future Land Use Objective 1.1.4 and Policies 1.1.4.1 through 1.1.5.9 deal with the Urban Service Area. Objective 1.1.4 of the Future Land Use Objective provides:

       
       

       In coordination with the other elements of this plan, future development shall be directed to areas where the provision of urban and community services/facilities can be ensured.

       
       

       Page 1-59, St. Lucie County exhibit 1. In pertinent part, the Policies related to Objective 1.1.4 provide the following:

       
       

       Policy 1.1.4.1

       
       

       Encourage the location of urban land use intensities, through the development of density bonus and incentive programs in the Land Development Regulations, to those areas that lie within the defined urban service boundary before encouraging/supporting the conversion of property in the agricultural and suburban areas to higher intensity urban

       uses, but still keeping all development authorizations in line with the adopted levels of service within this plan.

       
       

       Policy 1.1.4.2

       
       

       Require that new development be designed and planned in a manner which does not place an unanticipated economic burden upon the ser- vices and facilities of St. Lucie County.

       
       

       Policy 1.1.4.3

       
       

       Encourage the use of cluster housing and planned unit development techniques to conserve open space and environmentally sensitive areas, through the incorporation of the following into the County's Land Development Regulations:

       1. The establishment of minimum acreage requirements necessary to support a viable mixed use community providing sufficient design flexibility to allow innovation and creativity in all forms of planned unit developments;

       2. The establishment of minimum open space ratios of 30 percent or greater in all planned unit developments including within the PUD documents assurances on the part of the developer that such areas will remain as open space to protect existing native habitat, to provide for minimum setback needs from adjacent uses, and to provide active and passive recreational as well as visual amenities.

       3. The establishment of minimum open space standards;

       4. The establishment of provisions ensuring the long term preservation of remaining open spaces;

       5. The establishment of a mixed use district combining residential, commercial, recreational, educational, and other income producing uses providing significant functional and physical integration among uses;

       6. The establishment of minimum standards for the provision of on-site shopping, job opportunities and internal trip capture; and,

       7. The establishment of specific requirements to provide efficient, centralized infrastructure (potable water and sanitary sewer). Include specific restrictions on the use of septic tanks, individual wells, and package plants in planned unit developments.

          Policy 1.1.4.4

          
          

          Provide for the calculation of gross residential density on lands that lie above the mean high water elevation. Provide for the ability to transfer/cluster of residential density from wetland and other sensitive or unique environmental habitats to upland

          areas on contiguous property.

          
          

          Pages, 1-59 through 1-62, St. Lucie County exhibit 1.

          
          

   25. The Plan indicates that the Urban Service Area is likely to have centralized water and wastewater services provided. There is no firm commitment in the Plan, however, to provide central water and sewer services for development within the Urban Service Area.

       
       

   26. Policy 1.1.5.1 of the Plan provides that urban development activities are restricted to the Urban Service Area. The Policy also provides that "urban development activities" include "any residential development activity in excess of two units to the gross acre . . ." for purposes of the Policy.

       
       

   27. The densities of Policy 1.1.5.1 for residential development are more dense than what is generally considered as an "urban density".

       
       

   28. The land located outside of the Urban Service Area is classified almost exclusively as Agriculture-2.5 or Agriculture-5. There are a few areas which abut the Urban Service Area boundary line which are classified for residential use, including a few small parcels which were in existence prior to adoption of the Plan.

       
       

   29. The Plan does not indicate the current or future existence of urban development within the Urban Service Area.

       
       

   30. A wide range of development densities and intensities are provided for in the Plan for the Urban Service Area. With regard to development in the Urban Service Area, the Plan provides, in part, the following:

       
       

       It is the position of St. Lucie County that in order to permit the mechanics of the free market system to operate openly, there must be a choice in where to locate future development. Offering the possibility of various development areas, when located within the defined urban service area, is not supportive of a pattern of urban sprawl.

       
       

       Page 1-24, St. Lucie County exhibit 1.

       
       

5. Amendments to the Plan.

   
   

   1. Since the determination that the Plan was "in compliance", the Plan has been amended three times, including the subject amendment.

      
      

   2. One amendment amended the Future Land Use Map to redesignate the future land use of approximately 2.1 acres of land from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Furlong Amendment").

   3. Another amendment amended the Future Land Use Map to redesignate the future land use of approximately 9.57 acres of land from Residential Urban to Commercial (hereinafter referred to as the "Hayes Amendment").

      
      

   4. Finally, the subject amendment amends the Future Land Use Map to redesignate the future land use of approximately 164 acres of land owned by the Intervenors from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Charboneau Amendment").

      
      

6. The Charboneau Amendment.

   
   

   1. On September 22, 1992, the Board of County Commissioners of the County adopted Ordinance No. 92-029 approving the Charboneau Amendment.

      
      

   2. The Charboneau Amendment, as adopted by the County, is effective only if it is ultimately determined that the amendment is "in compliance".

      
      

   3. After review of the Charboneau Amendment, the Department determined that it was not "in compliance". This determination was reflected in a notice which the Department caused to be published and in the Department's Statement of Intent of November 11, 1992.

      
      

   4. The Charboneau Amendment modifies the future land use classification of the Charboneau Property from Agriculture-2.5 to Residential Estate.

      
      

   5. Agriculture-2.5 allows residential use of the property of no more than one unit per 2.5 acres. Residential Estate would allow residential development of the property of one unit per acre.

      
      

7. The Charboneau Property and the Surrounding Area.

   
   

   1. The subject parcel consists of approximately 164 acres of land (hereinafter referred to as the "Charboneau Property"). The Charboneau Property is generally rectangular shaped with several parcels of land in the southern portion of the parcel which are not included in the Charboneau Amendment. Those "out parcels" retain their future land use designation of Agriculture-2.5 in the Plan and on the Future Land Use Map.

      
      

   2. The Charboneau Property represents approximately five one-hundredths of one percent of the 328,230 acres of unincorporated land in the County.

      
      

   3. The northeastern portion of the Charboneau Property consists of cleared land used for grazing a small number of cattle. The remainder of the property is not being actively used for agriculture or other purposes and is covered by pine flatwood and palmettos.

      
      

   4. The Charboneau Property is located in approximately the geographic center of the County. It is outside, but on the fringe, of the major development areas of the County.

      
      

   5. The Charboneau Property is bounded generally on the east by Gentile Road, a two-lane dirt road running north from State Road 70. State Road 70, also known as Okeechobee Boulevard, is located to the south of the Charboneau Property. State Road 70 is a major east-west arterial road. It connects the Florida Turnpike and Interstate 95 area, which are located within the Urban

      Service Area to the east of the Charboneau Property, with Fort Pierce. Access to the Charboneau Property is off Gentile Road.

      
      

   6. The Charboneau Property is located to the west and outside of the Urban Service Area designated by the Plan. Prior to the adoption of the Charboneau Amendment, the parcel of property generally contiguous to the eastern boundary of the Charboneau Property was also located outside the Urban Service Area. The boundary of the Urban Service Area had been located contiguous to the eastern boundary of the adjacent parcel. The adjacent parcel and the Charboneau Property are separated by Gentile Road.

      
      

   7. In conjunction with the adoption and transmittal to the Department of the Charboneau Amendment, the Board of County Commissioners of the County initiated, directed and ratified a relocation of the Urban Service Area boundary approximately 1,000 feet to the west. This placed the Urban Service Area boundary at Gentile Road. This modification in the Urban Service Area was consistent with the Plan, which allows a modification of the boundary of the Urban Service Area of up to 1,500 feet without plan amendment.

      
      

   8. As a consequence of the modification of the Urban Service Area, most of the eastern boundary of the Charboneau Property is contiguous to, but still outside, the Urban Service Area.

      
      

   9. On the northern boundary of the Charboneau Property is a canal. The canal is approximately thirty feet wide, although the width of the water in the canal is less. The canal is approximately six feet deep.

      
      

   10. To the north and northeast of the canal are citrus groves in active agricultural production. The property (hereinafter referred to as the "Coca- Cola Property"), is owned by Coca-Cola. The Coca-Cola Property is classified as Agriculture-2.5 in the Plan.

       
       

   11. Except for certain small pockets of property which border on the Charboneau Property which are described, infra, the property to the north, northwest and west of the Charboneau Property are used predominantly for citrus. Most of this property consists of large tracts of corporate-owned land.

       
       

   12. To the north of the Coca-Cola Property are also large tracts of property owned by government agencies. To the northeast of the Coca-Cola Property is a tract owned by the University of Florida which is used for citrus research. To the northwest of the Coca-Cola Property is a tract owned by the United States Department of Agriculture. The County also operates a livestock farm in the area.

       
       

   13. To the northwest of the Charboneau Property and to the west of the portion of the Coca-Cola Property abutting the northern boundary of the Charboneau Property is a parcel of property known as Fort Pierce Gardens. Fort Pierce Gardens is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. The future land use classification of Fort Pierce Gardens is Agriculture- 2.5.

       
       

   14. The lots in Fort Pierce Gardens range in size from one acre to five acres. There are a few houses already constructed and a few more houses under construction in Fort Pierce Gardens. Development of Fort Pierce Gardens is less than half complete.

   15. Adjacent to the western boundary of the Charboneau Property is a tract known as Pine Hollow Subdivision. Pine Hollow Subdivision is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. It is approximately the same size as the Charboneau Property. The future land use classification of the parcel is Agriculture-2.5.

       
       

   16. Pine Hollow Subdivision consists of 110 platted lots that are being developed in phases. The first phase consists of thirty lots which are still under development. A County maintained road has been constructed in phase one. Development of the other phases has not begun. The remaining portion of the tract has three rough-cut dirt roads. The subdivision is less complete than Fort Pierce Gardens. Lots in Pine Hollow Subdivision are slightly larger than one acre. Homes in the subdivision will use wells and septic tanks.

       
       

   17. To the west of Pine Hollow Subdivision and Fort Pierce Gardens is a large area of land used for citrus. These lands are designated Agriculture-2.5 and Agriculture-5.

       
       

   18. To the south and southwest of the Charboneau Property is a parcel of property with an airstrip which has been used by crop-dusting airplanes. The airstrip is oriented in a southeast-to-northwest direction. The airstrip and the parcel of land to the south of the Charboneau Property and north of State Road 70 is designated Agriculture-2.5 on the future land use map.

       
       

   19. The airstrip is not currently being used for crop-dusting aircraft. Improvements have recently been made to the airstrip, however, which evidence an intent to use the airstrip in the future for crop dusting activities. Hearsay evidence corroborates this finding.

       
       

   20. The land to the south of the Charboneau Property and south of State Road 70 is in use for citrus production. The parcel between the Charboneau Property and State Road 70 is named Walsh Farms. The property to the south and southeast of State Road 70, while currently used for citrus production, is designated Residential Suburban on the Future Land Use Map, allowing development of two dwelling units per acre. This property is, however, located inside the Urban Service Area.

       
       

   21. To the east of Gentile Road is a parcel of property approximately the same size, north to south, and about half the size, east to west, as the Charboneau Property. This parcel has been developed as what was characterized as rural ranchette. There are approximately eighteen large lots of four to five acres up to ten to twenty acres. The lots in the parcel (hereinafter referred to as the "Ranchette Property"), have single-family homes constructed on them and the lots also have some citrus and horses. The evidence, however, failed to prove that the Ranchette Property was being used for commercial agricultural purposes. The parcel is designated Agriculture-2.5 on the Future Land Use Map.

       
       

   22. One parcel of approximately 2.5 acres located within the Ranchette Property was the subject of the Furlong Amendment.

       
       

   23. To the immediate east of the Ranchette Property, bounded on the south by State Road 70 and on the east, in part, by the Florida Turnpike, is an area designated as Residential Suburban on the Future Land Use Map. The area, which lies within the Urban Service Area, is largely undeveloped at this time except for a development known as Hidden Pines.

   24. Hidden Pines is a vested subdivision. Hidden Pines consists of lots of approximately one acre. The homes on these lots are served by wells and septic tanks. The subdivision is nearly completely built-out.

       
       

   25. Approximately 1.3 miles to the east of the Charboneau Property is the center of an area immediately to the north of where the Florida Turnpike and Interstate 95 cross. From this point, the Florida Turnpike travels to the northwest, and closest to the Charboneau Property, from the crossing with Interstate 95. Interstate 95 travels to the northeast, and furthermost from the Charboneau Property, from the crossing. Immediately to the north of the crossing State Road 70 intersects the Florida Turnpike and Interstate 95 in a generally east-west direction. The western boundary of this area is approximately two-thirds of a mile from the southeast corner of the Charboneau Property.

       
       

   26. There is an interchange of the Florida Turnpike immediately to the north of the crossing and just to the south of State Road 70. There is also an interchange of Interstate 95 to the north of the crossing at State Road 70.

       
       

   27. State Road 70 becomes a six-lane arterial road to the east of the Florida Turnpike. There are no level of service deficiencies on this portion of State Road 70.

       
       

   28. The area within and immediately outside the area north of the crossing, west of Interstate 95 and east of the Florida Turnpike, is designated as the Okeechobee Road/I-95 Mixed Use Activity Area. The area may be used for varied, compatible commercial uses and residential use up to fifteen dwelling units per acre.

       
       

   29. The Mixed Use Activity Area is currently being developed. There are hotels, motels, gas stations, restaurants and an outlet mall already in existence in the area. Another outlet mall is being constructed. Reynolds Industrial Park, consisting of approximately 200 acres, is being developed.

       
       

   30. To the northeast of the Charboneau Property and the Coca-Cola Property to the east of Gentile Road is an area designated Residential Estate. This area is within the Urban Service Area and currently is undeveloped. Part of the property is used for citrus production.

       
       

   31. In summary, the area to the west of the Urban Service Area, including the Charboneau Property, is designated for agricultural uses except for Fort Pierce Gardens and Pine Hollow Subdivision. Fort Pierce Gardens and Pine Hollow Subdivision are isolated islands of development within an area actively used for agriculture purposes.

       
       

8. Insufficient Data and Analysis to Justify an Increase in Residential Acreage by the Designation of the Charboneau Property As Residential Estate.

1. In the Department's Statement of Intent, it was concluded that the Charboneau Amendment is not "in compliance" based upon the lack of data and analysis to support the conversion of the Charboneau Property from Agriculture-

   2.5 to Residential Estate with a designated density of one dwelling per acre.

   
   

2. Currently, the Agriculture-2.5 classification of the Plan allows one dwelling unit per 2.5 acres, or a total of approximately 65 residential units on the Charboneau Property. The Plan, however, requires that any non-agricultural

   development of over twenty units within an Agriculture-2.5 classification must maintain open space of at least 80 percent of the project site in order to retain some viable agricultural use of the property.

   
   

3. Residential Estate does not require clustering of units or open space. A total of approximately 163 residential units, one per acre with no open space, or a maximum of an additional 98 residential units can be constructed on the Charboneau Property if the Charboneau Amendment is approved.

   
   

4. When the Charboneau Amendment was submitted to the Department for review, the County failed to provide any data or analysis in support of a potential increase in residential units of 98 units or the change in classification of the appropriate use of the Charboneau Property from agricultural to residential. For example, no analysis of the number of acres in the County which are available for development at one unit per acre was performed by the County.

   
   

5. The data and analysis of the Plan and, in particular, the Future Land Use Element and the Future Land Use Map, allocate a total of 54,089 acres for new residential development in the County through the year 2015 to accommodate the need for residential property for projected increases in population (70,989 total acres available - 16,900 acres in use in 1988). If the acreage used for residential purposes in 1988 evidenced by the Housing Element is used, the Plan allocates a total of 58,620 acres for new residential development (70,989 total acres available - 12,369 acres in use in 1988).

   
   

6. Based upon the Plan, there is a need for only 17,936 additional acres of residential property to accommodate projected population increases through the year 2015. See finding of fact 38. With 54,089 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 17,936 additional acres, there are 3.01 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan.

   
   

7. If the Housing Element historical ratio of use is used, there are only 13,088 acres of residential property needed to accommodate projected population increases through the year 2015. With 58,620 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 13,088 additional acres, there are 4.47 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan.

   
   

8. Applying the historical ratio of residential use to only the projected additional permanent population indicates a need for an additional 12,099 acres for residential use by the year 2015. Finding of fact 35. This projection represents 4.47 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (54,089 projected acres/12,099 projected need).

   
   

9. Applying the historical ratio of residential use based upon the Housing Element of the Plan to only the projected additional permanent population indicates a need for an additional 8,841 acres for residential uses by the year 2015. Finding of Fact 35. This projection represents 6.63 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (58,620 projected acres/8,841 projected need).

10. Although approved by the Department, the evidence in this case proved that the Plan contains a designation of sufficient land in the County through the year 2015 to more than adequately meet the reasonably anticipated need for residential property. In fact, the Plan over-allocates land well in excess of any reasonable expectation of the amount of property needed to meet such needs. Even based upon the Plan's projections, the County has allocated more than 3 times the land needed to meet the County's own projections for the need for residential land for the year 2015. While the existing provisions of the Plan are not subject to review, when asked to consider an amendment providing for an increase in residential property, the existence of excessive residential property should not be ignored. In this case, to ignore the realities of the excessive allocation of land for residential purposes in the County contained in the Plan and approve the classification of additional property as residential, would simply exacerbate an already existing excessive allocation.

    
    

11. The conclusion that there is excessive land available for residential purposes already contained in the Plan is supported by the population per unit in the County of 2.34. If it is assumed that the 54,089 acres of land available for residential development in the County are developed at a low density of one unit per acre, there will be adequate residential land available for an additional 126,568 people: 54,089 acres, or 54,089 units, x 2.34 people per unit = 126,568 people. Based upon a projected permanent and seasonal population increase by the year 2015 of 46,535 people, there is available for residential use 2.71 times the acreage available to meet future residential needs. In light of the fact that residential property may be developed at much higher densities pursuant to the Plan, assuming development of one unit per acre is conservative, and the number of people that may be accommodated is much higher than 126,568 people.

    
    

12. Although not reflected in the Plan, there has been a removal of some property classified as residential property from residential use since the adoption of the Plan. The County has acquired 94 single-family homes on 100 acres designated for Residential Estate use. The 100 acres are located to the east of the Ft. Pierce International Airport and were acquired for noise abatement purposes. The homes on the property have been demolished. An additional 90 homes on land classified Residential Urban will also be acquired and demolished.

    
    

13. The State of Florida, through the Conservation and Recreation Lands Program, Chapter 253, Florida Statutes, has also acquired property known as the Avalon tract. The property is located on Hutchinson Island, in the northeast corner of the County. This property had been designated Residential Urban and could have contained approximately 450 units.

    
    

14. Even with the removal of the property near the airport and the Avalon tract from the residential property inventory, the Plan contains an excessive allocation of property for residential needs through the year 2015.

    
    

15. Based upon the foregoing, data and analysis has not been submitted by the County to justify an increase in residential property or property which may be developed at an increased density. There is already an over-allocation of property for residential land use and, even with the reductions of property near the airport and the Avalon tract, the addition of the Charboneau Property will only result in a Plan with greater over-allocation of land for residential purposes or increased densities.

    1. Proliferation of Urban Sprawl.

       
       

16. Pursuant to Section 163.3177(6)(a), Florida Statutes, and Rule 9J- 5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl".

    
    

17. The ill effects of urban sprawl include inequitable distribution of the costs of development and of providing services, inefficient use of land, unnecessary destruction of natural resources, loss of agricultural lands and increased commuting costs and the resulting pollution.

    
    

18. In November 1989, the Department published a Technical Memorandum which describes the Department's policy concerning the definition of "urban sprawl". The Department's policy has been further refined and is reflected in proposed amendments to Chapter 9J-5, Florida Administrative Code. In particular, proposed Rule 9J-5.003(140) and 9J-5.006(6), Florida Administrative Code, are consistent with, and represent, the Department's policy concerning urban sprawl.

    
    

19. The Department's policy concerning the definition of "urban sprawl", as set out in the proposed rules and as contained in the November 1989 Technical Memorandum, is consistent with the definition of "urban sprawl" most commonly employed by professional planners.

    
    

20. The Department's proposed rules concerning urban sprawl do not have the effect of law. They have not yet been finally adopted. The proposed rules have not been relied upon, however, by the Department or the undersigned as "law" in this case. The proposed rules concerning urban sprawl have only been relied on as an expression of the Department's policy.

    
    

21. The Department's policy concerning urban sprawl, as evidenced in the November 1989 Technical Memorandum, and as modified by the Department's proposed rules, is reasonable.

    
    

22. The Department's definition of "urban sprawl" contained in the November 1989 Technical Memorandum is:

    
    

    . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or

    more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development.

    
    

23. The Department's definition of "urban sprawl" as evidenced by the proposed rules is as follows:

    
    

    (140) "Urban sprawl" means urban development or uses which are located in rural areas or areas of interspersed rural and generally low-

    intensity urban uses, and which are characterized by:

    1. The premature or poorly planned conversion

       of rural land to other uses; or

    2. The creation of areas of urban develop- ment or uses which are not functionally related to adjacent land uses; or

    3. The creation of areas of urban develop- ment or uses which fail to maximize the use of existing public facilities and the use of areas within which public services are being provided.

    Urban sprawl typically manifests itself in one or more of the following patters: (1) leapfrog or scattered development; (2) ribbon or strip commercial or other development; and

    (3) large expanses of predominantly low intensity and single-use development.

    
    

    Page 21, DCA exhibit 18.

    
    

24. There are several indicators as to when a plan amendment does not discourage the proliferation of urban sprawl. The indicators, which are memorialized in the Department's proposed amendment to Rule 9J-5.006(6)(g), Florida Administrative Code, are whether a plan amendment:

    
    

    1. Promotes or allows substantial areas of the jurisdiction to develop as low intensity or single use developments in excess of demonstrated need.

    2. Promotes or allows significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are suitable for development but can

       be expected to remain undeveloped for the balance of the planing period.

    3. Promotes or allows urban development to occur in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments but which are bordered on either side by rural land uses, typically following highways or surface water shorelines such as rivers, lakes and coastal waters.

    4. Fails to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, endangered or threatened species habitat or habitat of species of special concern, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems.

    5. Fails to protect agricultural areas and activities, including silviculture. This includes active agricultural and silvicultural activities as well as passive agricultural activities and dormant unique and prime farm- lands and soils.

    6. Fails to maximize use of existing public

       facilities and services.

    7. Fails to maximize use of future public facilities and services.

    8. Increases disproportionately the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, storm- water management, law enforcement, education, health care, fire and emergency response, and general government.

    9. Fails to provide a clear separation bet- ween rural and urban uses.

    10. Fails to promote and support infill development and the redevelopment of existing neighborhoods and communities.

    11. Fails to encourage an attractive and functional mix of uses.

    12. Results in poor accessibility among linked or related land uses.

    13. Results in loss of significant amounts of functional open space.

    
    

    Pages 38-40, DCA exhibit 18

    
    

25. Pursuant to the settlement agreement between the County and the Department which led to the determination that the Plan was in compliance, objectives and polices were added by the County to the Plan to insure that the Plan discouraged the proliferation of urban sprawl.

    
    

26. The Plan, by directing that development primarily take place within the Urban Service Area, evidences an intent on the part of the County to discourage urban sprawl. See page 1-40 of St. Lucie County exhibit 1 and finding of fact 43.

    
    

27. Applying the indicators of urban sprawl to the Charboneau Amendment leads to the conclusion that the Charboneau Amendment does not discourage urban sprawl:

    
    

    1. The Charboneau Amendment allows the development of 164 acres of land as a low-density, single-use development of one dwelling unit per acre despite the lack of need for any additional residential development in the County.

       
       

    2. It allows urban development in rural areas at a significant distance from existing urban areas while leapfrogging over less dense and undeveloped land within the Urban Service Area more suitable for such development.

       
       

    3. It allows urban development in an area that is primarily used for agricultural purposes and, consequently, fails to protect agricultural areas.

       
       

    4. It fails to maximize the use of existing or future public facilities and services by allowing urban development outside of the Urban Service Area. At some time in the future, the residents of the Charboneau Property can reasonably be expected to expect public facilities and services.

    5. It will increase disproportionately the costs in time, money and energy of providing and maintaining facilities and services because the Charboneau Property is located outside the Urban Service Area.

       
       

    6. It fails to provide a clear separation between rural and urban

       uses.

       
       

    7. It fails to promote and support infill development and

       redevelopment.

       
       

28. The Charboneau Amendment does not, by itself, create urban sprawl. No development of the Charboneau Property will occur simply because the

    Charboneau Amendment is found to be "in compliance" until development orders are issued by the County. These facts do not, however, support the suggestion that the Plan will not fail to discourage urban sprawl as a result of the Charboneau Amendment. The Charboneau Amendment, even though contrary to Objective 1.1.2 and the Policies thereunder which discourage urban sprawl, if found in compliance, will cause the Plan to contain provisions which not only fail to discourage urban sprawl. It will cause the Plan to include provisions which encourage urban sprawl.

    
    

    1. Inconsistency with Objective 1.1.2 of the Plan.

       
       

29. Rule 9J-5.005(5), Florida Administrative Code, requires that comprehensive plan elements be consistent with each other and that future conditions maps reflect the goals, objectives and policies of the plan elements.

    
    

30. The Department has alleged, and proved, that the Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 of the Future Land Use Element of the Plan and, therefore, creates an inconsistency within the Future Land Use element.

    
    

31. Objective 1.1.2 of the Plan provides the following:

    
    

    Provide in the land development regulations provisions for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban service boundary and promote retention of agricultural activities, preserve natural resources and maintain native vegetative habitats.

    
    

32. Policy 1.1.2.4 of the Plan provides the following:

    
    

    The County shall include in its land development regulations a site assessment process to evaluate the potential conversion of existing

    or designated agricultural land uses to non- agricultural land uses in a rational and orderly manner. such provision shall require as a condition to such conversion that the Board of County Commissioners affirmatively find that the proposed non-agricultural use:

    1. is compatible with adjacent land uses;

    2. maintains the viability of continued agricultural uses on adjacent lands;

    3. contains soils suitable for urban use as

       defined by the St. Lucie County soil survey;

    4. is suitable with existing site-specific land characteristics;

    5. is consistent with comprehensive develop- ment plans;

    6. will have available the necessary infrastructure concurrent with the anticipated demands for development; and,

    7. will avoid the extension of the urban services boundary to create any enclaves, pockets, or finger areas in serpentine patterns.

       
       

33. Policy 1.1.2.4 was added to the Plan as part of the settlement entered into between the Department and the County during the review of the Plan.

    
    

34. Based upon data contained in the Plan, there were approximately 211,428 acres out of a total of 330,402.7 acres in the County in 1988 devoted to agricultural use. This amounts to approximately 63.9 percent agricultural use.

    
    

35. The area outside the Urban Service Area is:

    
    

    . . . recognized for first being appropriate for the production of citrus, cash crops, or ranching activities. . . .

    
    

36. Based upon the entire area to the west of the Urban Service Area, including the Charboneau Property and the property surrounding the Charboneau Property, the conversion of the Charboneau Property from Agriculture-2.5 to Residential Estate would create an incompatible use of the Charboneau property.

    
    

37. This conclusion is reinforced by consideration of the general impact of the conversion of agriculture lands to non-agriculture lands throughout the State of Florida. Of the State's 10.9 million acres of land, approximately 150,000 to 200,000 acres of farm land are lost to other uses yearly. Contributing to this problem is the fact that, as one parcel is converted to non-agricultural uses, the adjacent property values increase and farmers become discouraged. This impact contributes to the premature conversion of agricultural land.

    
    

38. To reduce the impact on adjacent agricultural lands caused by the conversion of agricultural land, a clear demarcation between rural and urban land uses should be designated. The Urban Service Area of the Plan serves this purpose in the County

    
    

39. Although the evidence failed to prove that agricultural lands adjacent to the Charboneau Property will no longer be used for agricultural purposes upon the conversion of the Charboneau Property or that such a phenomenon has occurred in the County in the past, concern over such impacts are evidenced and recognized by Objective 1.1.2 and Policy 1.1.2.4. of the Plan.

    The Charboneau Amendment ignores these concerns. It is, therefore, concluded that the Charboneau Amendment will detract from the continued viability of property outside the Urban Service Area for agricultural uses.

    
    

40. Policy 1.1.2.4 requires that a development "maintain the viability of continued agricultural uses on adjacent lands." The Charboneau Amendment, even

    if the domino impact of the conversion of other acreage from agricultural uses may not occur, does not maintain such viability.

    
    

41. The Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 because it allows the conversion of agricultural property in an agricultural area (with two parcels of existing, inconsistent uses), outside the Urban Service Area and at a density that is considered an urban density:

    
    

    1. The conversion of the Charboneau Property to urban uses is not compatible with adjacent land uses.

       
       

    2. The conversion of the Charboneau Property to urban uses does not maintain the viability of continued agricultural uses on adjacent lands.

       
       

    3. The Charboneau Property contains soils that are approximately equally suited for agricultural purposes or residential purposes. Wells and septic tanks are used on subdivisions in the area and similar soils exist in areas being used for the cultivation of citrus.

       
       

42. The Charboneau Amendment is consistent with other portions of Policy 1.1.2.4.

    
    

43. While Objective 1.1.2 and Policy 1.1.2.4 of the Plan specifically only require that the County adopt land development regulations to govern the conversion of agricultural lands, the Objective and Policy also contain substantive provisions which must be contained in those regulations. Therefore, even though the Charboneau Amendment may not specifically impact the County's compliance with the requirement that it "adopt land development regulations," the substance of the Charboneau Amendment is inconsistent with the substantive requirements of the Objective and the Policy of the Plan and would create an inconsistency in the Plan if found to be "in compliance."

    
    

    1. Inconsistency with the State Comprehensive Plan.

       
       

44. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes.

    
    

45. Goal 16 of the State Comprehensive Plan and Policies 1 and 2 of Goal

    16 are as follows:

    
    

    (16) LAND USE.--

    1. Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate

       growth in an environmentally acceptable manner.

       . . . .

    2. Policies.--

    1. Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce.

    2. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting

    water supplies, resource development, and fish and wildlife habitats.

    
    

    Section 187.201(16), Florida Statutes.

    
    

46. Converting the Charboneau Property to a non-agricultural classification outside the Urban Service Area is inconsistent with Policy 1 of Goal 16.

    
    

47. The existence of the inconsistent uses of Fort Pierce Gardens and Pine Hollow, which were allowed because of their existence before the effective date of the Plan, does not justify further exceptions in the area outside the Urban Service Area designated for rural land uses. The existence of a nonconforming use does not justify further nonconforming uses.

    
    

    1. Inconsistency with the Treasure Coast Regional Comprehensive Policy Plan.

    
    

48. The Treasure Coast Regional Planning Council has adopted a Regional Comprehensive Policy Plan (hereinafter referred to as the "Regional Plan").

    
    

49. The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for St. Lucie, Indian River, Martin and Palm Beach Counties.

    
    

50. In its Statement of Intent, the Department has alleged that the Charboneau Amendment is inconsistent with Regional Plan Policy 16.1.2.2.

    
    

51. Goal 16.1.2 of the Regional Plan provides, in part, the following:

    
    

    Land use within the Region shall be consistent with State, regional, and local Future Land Use Maps. . . .

    
    

    Goal 16.1.2 of the Regional Plan goes on to provide for a Regional Future Land Use Map and defines the land use categories to be included in the regional map.

    
    

52. Policy 16.1.2.2 of the Regional Plan provides the following policy statement concerning Goal 16.1.2:

    
    

    Future land use maps of government comprehen- sive plans shall be based upon surveys, and data regarding the amount of land required

    to accommodate anticipated growth, the projected population, the character of undeveloped land, the availability of public services, the ability of government to provide adequate levels of service, and the need for

    redevelopment.

    
    

    The provisions of Policy 16.1.2.2 are also contained in Section 163.3177(6)(a), Florida Statutes.

53. As found in more detail, supra, the Charboneau Amendment is inconsistent with Policy 16.1.2.2 because of a lack of data necessary to support an increase in residential land or increased density in the County and because it fails to promote redevelopment by infill or revitalization within the Urban Service Area.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

54. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

    
    

    1. Motion to Conform Pleadings.

       
       

55. At the conclusion of the final hearing, the Department requested leave to conform the pleadings to the evidence that had been admitted. The Respondent and Intervenors objected to the request. A ruling on the request to conform was reserved.

    
    

56. The Department did not specify the issues the Department believes were not included in the pleadings. Nor has the Department addressed its request to conform in its proposed recommended order.

    
    

57. This proceeding was initiated by the Department pursuant to Section 163.3184(10), Florida Statutes (1992 Supp.). Proceedings are instituted pursuant to Section 163.3184(10), Florida Statutes (1992 Supp.), by the filing with the Division of Administrative Hearings of the Department's notice of intent to find a plan amendment not in compliance. Following the filing of the Department's notice of intent, Section 163.3184(10), Florida Statutes, provides:

    
    

    No new issue may be alleged as a reason to find a plan or plan amendment not in compli- ance in an administrative pleading filed more than 21 days after publication of notice un- less the party seeking that issue establishes good cause for not alleging the issue within that time period. . . .

    
    

58. Pursuant to the foregoing, the Department was prohibited from amending its notice of intent to add issues 21 days after publication of the notice of intent in this case. The Department's request to conform was made well in excess of 21 days after publication of the notice of intent in this case. To allow the Department to conform the pleadings to the evidence presented during the formal hearing could have the effect of circumventing this prohibition.

    
    

59. Based upon the foregoing, the Department's motion to conform the pleadings is denied.

    
    

    1. Burden of Proof.

       
       

60. In proceedings instituted pursuant to Section 163.3184(10), Florida Statutes, the burden of proof is placed on the Department to prove by a preponderance of the evidence that the plan or plan amendment is not in compliance.

61. As to determinations of internal consistency, the local government's determination is presumed correct unless the Department proves that the government's determination is not fairly debatable.

    
    

    1. General Legal Principles.

       
       

62. Plan amendments are subject to review by the Department under the Act. The purpose of such review is to determine whether the plan amendment is "in compliance". Section 163.3184(8), Florida Statutes (1992 Supp.).

    
    

63. The term "in compliance" defined in Section 163.3184(1)(b), Florida Statutes (1992 Supp.), as:

    
    

    1. "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II.

       
       

64. Section 163.3187, Florida Statutes (1992 Supp.), provides the manner in which a comprehensive plan may be amended:

    
    

    1. Amendments to comprehensive plans adopted pursuant to this part may be made not more than two times during any calendar year, except:

       . . . .

    2. Comprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to s. 163.3177(2). . . .

    3. . . . . Each governing body shall also transmit copies of any amendments it adopts

    to its comprehensive plan so as to continually update the plans on file with the state land planning agency.

    . . . .

    
    

65. Section 163.3177, Florida Statutes (1992 Supp.), describes the "[r]equired and optional elements of comprehensive plan[s]" and the "studies and surveys" upon which they must be based. Section 163.3177, Florida Statutes (1992 Supp.), specifies eleven elements which must be included in every comprehensive plan.

    
    

66. Section 163.3177(2), Florida Statutes (1992 Supp.), provides:

    (2) Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be economically feasible.

    
    

67. Chapter 9J-5, Florida Administrative Code, was adopted by the Department pursuant to the Act and sets out the "minimum criteria" for review of

    comprehensive plans and plan amendments to determine whether they are "in compliance".

    
    

68. The State comprehensive plan is contained in Chapter 187, Florida Statutes. The appropriate regional policy plan in this case is the Treasure Coast Regional Comprehensive Policy Plan.

    
    

69. In determining whether a plan amendment is "in compliance" the determination must be based upon a consideration of the comprehensive plan in its entirety, including any amendments thereto. Department of Community Affairs

    v. Lee County, 12 FALR 3755, 3756-57 (Fla. Admin. Comm. 1990).

    
    

70. The County has argued that the determination of consistency is limited to a determination of consistency between elements of the Plan. The County in effect suggests that there is no bar to internal inconsistencies within an element. This argument is rejected.

    
    

71. The County has also argued that the Charboneau Amendment's modification of the Future Land Use Map does not necessarily create a conflict within the Plan because the development of the Charboneau Property is contingent on obtaining appropriate development orders which must be issued consistent with the Plan. This argument is also rejected. The Future Land Use Map is an integral part of the Plan. It creates a visual representation of the Plan's goals, objectives and policies. If the County were correct that it should be presumed that the actual development of the Charboneau Property will be consistent with the Plan, why then modify the Future Land Use Map in such a way that reflects a use of the Charboneau Property which is inconsistent with the Plan.

    
    

    1. The Department's Determination of Noncompliance.

       
       

72. The Department concluded in its Statement of Intent to Find Comprehensive Plan Amendment not in Compliance that the Charboneau Amendment is not in compliance for the following reasons:

    
    

    1. The Charboneau Amendment modification of the classification of the Charboneau Property from Agriculture to Residential Estate is not supported by data and analysis as required by Rule 9J-5.006(2)(c), Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes.

       
       

    2. The Charboneau Amendment encourages the proliferation of urban sprawl contrary to Rule 9J-5.006(3)(b)7, Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes.

       
       

    3. The process for conversion of lands classified Agriculture is described in Future Land Use Objective 1.1.2 and Policy 1.1.2.4 and, therefore, the Charboneau Amendment is contrary to Objective 1.1.2 and Policy 1.1.2.4. Rule

       9J-5.005(5), Florida Administrative Code.

       
       

    4. The Charboneau Amendment is inconsistent with Goal 16 (Land Use) and Policy (b)1., of the State comprehensive plan. Rule 9J-5.021, Florida Administrative Code.

       
       

    5. The Charboneau Amendment is inconsistent with Policy 16.1.2.2 of the Treasure Coast Comprehensive Regional Policy Plan.

73. To the extent that the Department has argued that the Charboneau Amendment is in conflict with other provisions of statute, rules or the regional plan, the Department's arguments have been given no weight.

    
    

    1. Data and Analysis.

       
       

74. The specific data and analysis which the Department concluded was not provided to support the Plan as amended by the Charboneau Amendment is the data and analysis required by Section 163.3177(6)(a), Florida Statutes (1992 Supp.), and Rule 9J-5.006(2)(c), Florida Administrative Code. Specifically, the Department concluded that the conversion of the Charboneau Property from an Agriculture classification to a Residential classification and the increased density were not supported by data and analysis.

    
    

75. Section 163.3177(6)(a), Florida Statutes (1992 Supp.), requires the following:

    
    

    . . . . The future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount

    of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land;

    the availability of public services; and the need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with character of the community. . . .

    
    

76. Rule 9J-5.006(2)(c), Florida Administrative Code, requires that a local government's determination concerning future land uses be based upon:

    
    

    1. An analysis of the amount of land needed to accommodate the projected population, including:

    1. The categories of land use and their densities or intensities of use,

    2. The estimated gross acreage needed by category, and

    3. A description of the methodology used;

    
    

77. The facts in this case proved that the Charboneau Amendment is not supported by data and analysis sufficient to justify the conversion of additional land in the County from Agriculture to Residential or to increase the density of residential and urban use of land in the County. This conclusion is based upon a consideration of the land available for residential use through the year 2015, residential lands removed from residential use since adoption of the Plan, the projected population growth in the County and the land needed to accommodate growth, the character of undeveloped land, especially land available for future residential use, the availability of public services primarily in the Urban Service Area and the need for redevelopment in the Urban Service Area.

    
    

78. The conclusion that there is insufficient data and analysis is based upon the entire "area" and not just the Charboneau Property. See Section 163.3171(2), Florida Statutes (1991), and Section 163.3164(2), Florida Statutes.

79. As argued by the County, this determination has been made based upon reality. The reduction in residential acreage which has occurred in the County but is not yet reflected in the Plan has been considered. The over-allocation of available land to meet future growth in the County based upon the County's own projections contained in the Plan, and the fact that the over-allocation will exist even after the losses in residential property which has occurred in the County, is also part of the reality that must be, and has been, considered.

    
    

80. Based upon the weight of the evidence, it is concluded that the Charboneau Amendment is not supported by data and analysis as required by Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(2)(c), Florida Administrative Code.

    
    

    1. Urban Sprawl.

       
       

81. Pursuant to Section 163.3177(6)(a), Florida Statutes, and Rule 9J- 5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl".

    
    

82. The Department has provided a definition of "urban sprawl" by policy. The definition is reflected in a November 1989 Technical Memorandum and proposed rules of the Department. While the County's argument that the proposed rule may not be applied in this proceeding as "law" is correct, the proposed rule, based upon the testimony at hearing, may be relied upon as a reflection of the Department's otherwise valid and reasonable policy.

    
    

83. Based upon the Plan, as amended by the Charboneau Amendment, and an application of the indicators of urban sprawl, it is concluded that the Charboneau Amendment will not discourage the proliferation of urban sprawl. On the contrary, the Charboneau Amendment encourages urban sprawl.

    
    

    1. Inconsistency with Objective 1.1.2 and Policy 1.1.2.4.

       
       

84. Rule 9J-5.005(5), Florida Administrative Code, specifies that plans be internally consistent:

    
    

    (5) Internal Consistency.

    1. The required elements and any optional elements shall be consistent with each other. All elements of a particular comprehensive plan shall follow the same general format . . . . Where data are relevant to several elements, the same data

       shall be used, including population estimates and projections.

    2. Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan.

    
    

85. One of the mandatory elements which must be included in each plan is the Future Land Use Element. Section 163.3177(6)(a), Florida Statutes (1992 Supp.). Pursuant to Chapter 9J-5, Florida Administrative Code, each plan must include, among other things, goals, objectives and policies relating to each element, procedures for monitoring and evaluation of the plan and required maps showing future conditions.

86. The Plan includes a process and criteria to be followed in determining whether agricultural lands should be designated with other classification in the future. The procedure and criteria are contained in Objective 1.1.2 and Policy 1.1.2.4 of the Plan.

    
    

87. The Charboneau Amendment, based upon findings of fact 120-134, is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 of the Plan. The inconsistency is contrary to the minimum requirements of Rule 9J-5.005(5), Florida Administrative Code.

    
    

    1. The State Comprehensive Plan and the Treasure Coast Regional Comprehensive Policy Plan.

       
       

88. The State comprehensive plan is found in Chapter 187, Florida Statutes, and constitutes a "direction-setting document" providing "long-range policy guidance for the orderly social, economic, and physical growth of the state. Section 187.101, Florida Statutes (1991).

    
    

89. The applicable regional policy plan is the 1987 Regional Policy Plan of the Treasure Coast Regional Planning Council. See Section 186.508, Florida Statutes (1992 Supp.), and Rule 29K-5.001, Florida Administrative Code.

    
    

90. In order to be considered consistent with the State plan and the applicable regional plan, the Plan, as amended, must be "compatible with" and "furthers" those plans. "Compatible with" means "not in conflict with" and "furthers" means "to take action in the direction of realizing." Section 163.3177(10)(a), Florida Statutes (1992 Supp.).

    
    

91. The evidence in this case proved that the Plan, as amended by the Charboneau Amendment, is inconsistent with Goal 16 and Policy (b)1 of the State plan because of the lack of data and analysis to support the increased densities and uses of the Charboneau Property.

    
    

92. The evidence also proved that the Plan, as amended by the Charboneau Amendment, is inconsistent with Regional Policy 16.1.2.2 of the Treasure Coast Comprehensive Regional Policy Plan.

    
    

93. The County has argued essentially that the Charboneau Amendment's impact on the State plan and the regional plan are diminimus. The County's argument is rejected.

    
    

    1. Administrative Res Judicata.

       
       

94. The County has argued that the doctrines of res judicata and collateral estoppel apply in this case. In particular, the County has argued that the Department objected to the Plan as originally proposed by the County on the basis of the over-allocation of land to meet the projected needs for residential development in the County. The County suggests that the settlement of that dispute resolved the issue of over-allocation for all purposes and may not again be raised in this proceeding unless there has been a material change in circumstances.

    
    

95. No authority has been cited, nor is the undersigned aware of any such authority, that would support the application of the doctrines of res judicata or collateral estoppel in this matter.

96. The County has also argued that the determination in this case must be made based upon the entire Plan, as amended by the Charboneau Amendment, and not just on the Charboneau Amendment, and that the consideration of the Charboneau Amendment must be based upon reality. The undersigned agrees. Therefore, the reality that the Plan over-allocates land for residential purposes and that the Charboneau Amendment will only exacerbate that over- allocation has not been ignored.

    
    

    1. Conclusion.

    
    

97. Based upon the foregoing, it is concluded that the Charboneau Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes (1992 Supp.).

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding

that the St. Lucie Comprehensive Plan as amended by ordinance number 92-029, the

Charboneau Amendment, is not in compliance, within the meaning of Section 163.3184(1)(b), Florida Statutes (1992 Supp.).

DONE AND ENTERED this 3rd day of August, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-7438GM

The Department and the County have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Intervenors did not file a proposed recommended order.

The Department's Proposed Findings of Fact I.

1. Accepted in 1.

2. Accepted in 2.

3. Accepted in 3.

II.

1. Accepted in 13.

2. Accepted in 15 and hereby accepted.

3. Accepted in 16.

4. Accepted in 18-19.

5. Accepted in 22 and 25.

6. Accepted in 52-55.

7. Accepted in 42-43 and 45.

8. Accepted in 43, 46-48 and 50. 9A ccepted in 51.

III.

1. Accepted in 55-57, 59 and 61.

2. Accepted in 58.

3. Accepted in 65-68.

4. Accepted in 70.

5. Accepted in 73-74.

15-16 Accepted in 75-76.

1. Accepted in 77.

2. Accepted in 78-80.

3. Accepted in 81.

4. Accepted in 83-84.

5. Accepted in 85-88.

6. Hereby accepted.

7. Accepted in 89.

   
   

   IV.

   
   

8. Hereby accepted.

9. Accepted in 95 and 106.

10. Accepted in 27 and 93.

11. Accepted in 26 and 94.

12. Accepted in 94.

13. Accepted in 30 and hereby accepted.

14. Accepted in 31.

15. Accepted in 32-33 and 35.

16. Accepted in 38-39.

17. Accepted in 96 and 99-100.

18. Accepted in 99-101 and 106.

19. Accepted in 95 and 106.

36-45 Hereby accepted. See 132. V.

1. Hereby accepted.

2. Accepted in 122-123.

3. Accepted in 125.

4. Accepted in 25, 27, 93 and hereby accepted.

5. Accepted in 128.

6. Accepted in 129 and 132.

7. Accepted in 136.

8. Accepted in 137-138.

9. Accepted in 71.

10. Hereby accepted.

11. See 71 and hereby accepted.

57-59 Accepted in 132.

1. Accepted in 120.

2. Accepted in 132.

   
   

   VI.

   
   

3. Accepted in 107.

4. Accepted in 108.

5. Accepted in 107 and hereby accepted.

6. Accepted in 109-110.

7. Accepted in 117.

8. Accepted in 114.

9. Accepted in 115.

69-76 Accepted in 118.

1. Accepted in 119.

2. Accepted in 14, 101 and 119.

3. Accepted in 101 and hereby accepted.

VII.

80 See 142.

1. Accepted in 143.

2. Accepted in 144.

83-85 Not relevant. The issue to which these facts relate was

not raised in the Department's notice of intent.

VIII.

86-88 Accepted in 136.

89 Accepted in 137.

90. Not relevant. The issue to which these facts relate was not

raised in the Department's notice of intent.

The County's Proposed Findings of Fact

1. Accepted in 4-5.

2. Accepted in 6.

3. Accepted in 12.

4. Accepted in 7.

5. Accepted in 8.

6-7 Hereby accepted.

1. Accepted in 9 and 29.

2. Accepted in 10-11.

3. Accepted in 13-14.

4. Accepted in 8 and hereby accepted.

5. Accepted in 42-44 and 46.

6. Accepted in 43, 47 and 67.

7. Accepted in 28, 31 and 34-35.

8. Accepted in 39.

9. Accepted in 16-17.

10. Accepted in 18-19.

11. Accepted in 19-21 and 41.

12. Accepted in 20-21.

13. Hereby accepted.

14. Accepted in 55 and 62.

15. Accepted in 55 and 94.

16. Not relevant.

17. Accepted in 58.

18. Accepted in 92, 94 and hereby accepted.

19. Accepted in 64-65.

20. Accepted in 65 and hereby accepted.

21. Accepted in 67.

22. Accepted in 63. 30 See 132(c).

1. Hereby accepted.

2. Hereby accepted. See 132.

3. Accepted in 85 and 88.

4. Accepted in 89 and hereby accepted.

5. Accepted in 87.

6. Accepted in 81-82.

7. Accepted in 83-84 and hereby accepted.

8. Accepted in 75-76.

9. Accepted in 73-74.

10. Accepted in 90.

11. Accepted in 69-70. The second sentence is not supported by

    the weight of the evidence.

12. Accepted in 71-72.

13. Accepted in 78-80. The last sentence is not supported by the

    weight of the evidence.

14. Accepted in 78-79. The last sentence is not relevant.

15. Accepted in 80.

16. Although generally correct, not relevant.

17. Not supported by the weight of the evidence. See 130.

18. Not supported by the weight of the evidence.

19. What one employee of the Department did is not relevant. See 103-105.

20. Accepted in 103.

21. Accepted in 104.

22. Accepted in 122.

23. See 132 and 134. The next to the last sentence is not

    supported by the weight of the evidence.

24. Accepted in 123.

25. See 20 and 134. 56 See 134.

57 a-b Not supported by the weight of the evidence. See 132. 57 c See 132(c).

57 d Accepted in 133 and hereby accepted.

57 e-f Accepted in 133.

1. g Not supported by the weight of the evidence.

2. Accepted in 109 and 113.

3. Accepted in 118 and hereby accepted.

4. Accepted in 107 and 116. The last sentence is not supported

   by the weight of the evidence.

5. The first sentence is hereby accepted. The remainder of this paragraph is not supported by the weight of the evidence.

6. Not supported by the weight of the evidence. See 119.

7. Not supported by the weight of the evidence. See 103-106.

8. See 109 and 119. The last sentence is not supported by the

   weight of the evidence.

9. Hereby accepted.

10. Accepted in 136. 67 See 134.

1. Not supported by the weight of the evidence. See 137-138.

2. Accepted in 141 and 143.

3. Accepted in 143.

4. Not supported by the weight of the evidence.

5. Hereby accepted.

6. Not supported by the weight of the evidence.

COPIES FURNISHED:

Kareen Brodeen

Assistant General Counsel Cristina Echarte Brochin Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Daniel McIntryre County Attorney St. Lucie County

2300 Virginia Avenue

Fort Pierce, Florida 34982

H. Michael Madsen, Esquire Lauchlin T. Waldoch, Esquire Post Office Box 1876 Tallahassee, Florida 32302

David A. Theriaque, Esquire 820 East Park Avenue Building F, Suite 100 Tallahassee, Florida 32301

The Honorable Judy Culpepper

Chairman, Board of County Commissioners St. Lucie County

Fort Pierce, Florida 34982

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

BEFORE THE ADMINISTRATION COMMISSION

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioners,

vs.

CASE NO. ACC-93-063

ST. LUCIE COUNTY, DOAH No. 92-7438GM

Respondent,

and

BRIAN CHARBONEAU and KATHY CHARBONEAU,

Intervenors.

/

FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Administration Commission ("Commission") on November 23, 1993, in Tallahassee, Florida, pursuant to Section 163.3184(10), Florida Statutes, for consideration of a Determination of Plan Amendment Not in Compliance issued by the Department of Community Affairs ("the Department") and pursuant to a Recommended Order issued by the Division of Administrative Hearings in the above referenced proceeding. Based on a review of the record in this matter, the Commission voted to adopt the Findings of Fact and Conclusions of Law in part as further indicated herein. The Recommended Order dated August 3, 1993 is hereby incorporated into this Final Order as Exhibit "A". It is hereby determined that the St. Lucie County Comprehensive Plan Amendment, adopted by ordinance 92-029, the Charboneau amendment, is not in compliance, within the meaning of Section 163.3184(1)(b), Florida Statutes (1992 Supp.), the 1985 Local Government Comprehensive Planning and Land Development Regulation Act ("the Act"). /1

SUMMARY OF PROCEEDINGS

On or about September 22, 1992, the Board of County Commissioners of St.

Lucie County adopted ordinance number 92- 029 amending the St. Lucie County Comprehensive Plan that the County had adopted, in accordance with the Act.

Following review of St. Lucie County's plan amendment, the petitioner, the Department of Community Affairs, determined that the plan amendment was not in

compliance with the Act and issued a Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance and published notice thereof.

The Department forwarded its petition to the Division of Administrative Hearings and a hearing officer was assigned. Brian Charboneau and Kathy Charboneau filed a Petition for Leave to Intervene on February 17, 1993, and an order granting that petition was entered February 18, 1993. Final hearing was held in Tallahassee on April 15 and 16, 1993.

The plan amendment which is the subject of this proceeding relates to one parcel consisting of approximately 164 acres of land. The amendment was adopted to change the current land use of the subject property from Agriculture-2.5, which allows residential dwelling unit density at the rate of one dwelling per

2.5 acres, to Residential Estate, which allows dwelling unit density at the rate of one dwelling per acre of land. The county included language within its ordinance that the amendment would only be effective if determined to be in compliance by the state land planning agency or the Administration Commission.

The northeastern portion of the subject property is cleared land currently being used for grazing, and the remainder of the property is covered by pine flatwood and palmettos. The property is located to the west and outside the Urban Service Area designated by the County's Comprehensive Plan. The properties in the general location of the Charboneau property are designated for agricultural uses except for two residential subdivisions which are nearby the subject property.

The hearing officer determined that the amendment to the Comprehensive Plan is inconsistent with the stated objectives and policies of the existing St.

Lucie Comprehensive Plan because it allows the conversion of agricultural property in an agricultural area, outside the Urban Service Area, at a density that is considered an urban density. The hearing officer further found that the conversion of the property to urban uses is not compatible with adjacent land uses and that the conversion to urban uses does not maintain the viability of continued agricultural uses on adjacent lands and will not discourage the proliferation of urban sprawl.

We find the hearing officer's conclusions to be persuasive and find that these recommendations are supported by The Local Government Comprehensive Planning and Land Development Regulation Act, but decline to enter an order which would impose sanctions upon the county.

By our decision, we are not holding that the Act prevents the review of an amendment to a comprehensive plan consisting of 164 acres or less, or that the Commission lacks the authority to conclude that an amendment involving a relatively small parcel of a county or municipality may generate a proscriptive order for sanctions in the future. It is clear that the legislative scheme for amendment review does not provide any exception or exemption from the compliance review and decision process based on the size, location or character of the property. In fact, the Act specifically focuses on amendments directly related to proposed small scale development activities, defined as a land use change of

10 acres or less, and merely allows these small scale amendments to be submitted to the Department of Community Affairs following only one public hearing without having gone through the proposed amendment stages. Clearly, the Act does not exempt amendments from scrutiny, regardless of size.

RULING ON PETITIONERS EXCEPTIONS

Petitioner's single exception to the Recommended Order involves Conclusions of Law 146 through 150 regarding the petitioners motion to conform the pleading to the evidence presented. Petitioner admits that no material additional issues were presented by consent of the parties. We therefore decline to adopt the recommended order with respect to the hearing officer's legal opinion on this issue.

RULING ON THE COUNTY'S EXCEPTIONS

Exception B. Denied. In this exception, it is alleged that the hearing officer utilized the incorrect standard in concluding that the subject land use amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 of the County's existing Comprehensive Plan. The County argues that the hearing officer applied the preponderance of the evidence standard rather than the fairly debatable standard. From an examination of the record as a whole we conclude that the record supports the hearing officer's finding and conclusions under the fairly debatable standard. The County also urges us to consider the hearing officer's recommended order to be faulty based on the application of a second inappropriate legal standard. Specifically, the exception states that the hearing officer failed to recognize the distinction between comprehensive planning and development permitting. We find this allegation to be without merit and conclude that the hearing officer's application of Objective 1.1.2 and Policy 1.1.2.4 of the County's existing Comprehensive Plan was proper.

Exception C. Denied. The County concludes that since the Comprehensive Plan that had earlier been approved by the Department included more acreage for residential development than the plan as amended, the Department is estopped from claiming that the amended plan with less acreage encourages urban sprawl. The record supports the finding of the hearing officer to the effect that the land area as well as its placement is relevant to the issue of compliance with the Act. To allow otherwise would be to eliminate the structure of the Act.

The exception is therefore denied.

Exception D. Denied. The County concludes that the analysis of compliance with the Act should disregard the effect of the amendment standing alone, and examine only whether the entire plan now examined as a whole, along with the amendment, is in compliance with the Act. This claim is not based on any stated precedent, but instead is argued by the County as their interpretation of the Act. Contrary to the position of the County we conclude as a matter of law that the Act contemplates the examination of plan amendments standing alone, as well as the analysis of the whole plan after amendment. See, Department of Community Affairs v. Metro Dade County, AC Case No. ACC-92-001 (Adm. Comm. April 14, 1993); Cooper v. City of St. Petersburg Beach, 14 FALR 3589 (Adm. Comm. July 21, 1992). We find that the exception is not supported by the law, and deny the same.

Exception E. Denied. The County asserts that the provisions of Rule Chapter 9J-5 were applied to the analysis of the amendment in this case when the clear intent of the proposed rule states that it is not to have the effect of causing plans or plan amendments adopted prior to the effective date of the rule, to be found not in compliance. Chapter 9J-5, F.A.C., as it is currently in effect, includes requirements to discourage the proliferation of urban sprawl. Prior to the proposed revisions to Chapter 9J-5 regarding urban sprawl, the Department developed a policy to discourage such activity. That policy was refined in the proposed 9J-5 revisions. The County's argument that the

Administration Commission should ignore current Department policy is not persuasive. This exception is denied.

ORDER and SANCTIONS for NONCOMPLIANCE

The Commission hereby adopts the findings of fact in the hearing officer's recommended order and conclusions of law numbered 145, and 151 through 188, (the recommended order is Exhibit "A" attached hereto), to the extent that the hearing officer concluded that the Charboneau Amendment, as adopted by ordinance 92-029, is not in compliance, within the meaning of Section 163.3184(1)(b), Florida Statutes (1992 Supp.).

Pursuant to Section 163.3184(11), Florida Statutes, if th Administration Commission issues a final order which determines a plan or plan amendment to be not in compliance, the Commission must specify remedial actions which would bring the plan amendment into compliance and may also specify sanctions to be imposed in the event the County decides to amend its plan regardless of the finding of noncompliance. Since we choose to allow the county to apply its discretion as to the need for this amendment, we decline to adopt any sanctions or state any remedial actions to be taken by the County in the event that this amendment is made effective. However, should the County proceed to make this amendment effective, we strongly urge the County during its evaluation and review process to closely scrutinize its future land use needs and growth patterns based on projected population and future growth needs.

Any party to this order has the right to seek judicial review of the order pursuant to section 120.68, F.S., by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Secretary of the Commission, David K. Coburn, Office of Planning and Budgeting, Executive Office of the Governor, Room 2105 Capitol Building, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of the day this order is filed with the Clerk of the Commission.

DONE and ordered this 23rd day of November 1993, in Tallahassee, Florida.

Teresa B. Tinker, for DAVID COBURN, Secretary Administration Commission

FILED with the Clerk of the Administration Commission this 23rd day of November, 1993.

Patricia P. McCray

CLERK, Administration Commission

ENDNOTE

/1 Although the hearing officer concluded in paragraph 188 that the Charboneau Amendment is not in compliance, he recommended that the Administration Commission enter a final order finding that the St. Lucie County Comprehensive Plan, as amended by ordinance 92-029, is not in compliance. Pursuant to Section 163.3184(10) and (11), Florida Statutes, the Administration Commission's final order shall state whether the plan or amendment, whichever was the subject of final hearing, is in compliance. The "not in compliance" determination in this instance only applies to the Charboneau Amendment and does not render the Comprehensive Plan to be not in compliance. This revision of the hearing officer's recommended order (page 56 of the order) does not alter our support of the findings of fact and conclusions of law approved by the terms of this final order.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to the parties listed below this 23rd day of November 1993.

Teresa B. Tinker, for DAVID COBURN, Secretary Administration Commission

Honorable Lawton Chiles Honorable Tom Gallagher Governor Treasurer

The Capitol, PLO5 The Capitol, PLII Tallahassee, Fl 32399-0001 Tallahassee, Fl 32399-0001

Honorable Robert Butterworth Honorable Betty Castor Attorney General Commissioner of Education

The Capitol, PL01 The Capitol, PL08 Tallahassee, Fl 32399-0001 Tallahassee, Fl 32399-0001

Honorable Bob Crawford Honorable Jim Smith Commissioner of Agriculture Secretary of State The Capitol, PL10 The Capitol, PLO2

Tallahassee, Fl 32399-0001 Tallahassee, Fl 32399-0001

Honorable Gerald Lewis L. Michael Madsen, Esquire Comptroller Lauchlin T. Waldoch, Esquire

The Capitol, PLO9 Post Office Box 1876 Tallahassee, Fl 32399-0001 Tallahassee, Fl 32302

Gregory C. Smith, Esquire Daniel Mclntryre Assistant General Counsel County Attorney The Capitol, 209 St. Lucie County

Tallahassee, Fl 32399 2300 Virginia Avenue

Fort Pierce, Fl 34982

Karen Brodeen, Esquire David A. Theriaque Assistant General Counsel 820 East Park Avenue Dept. of Community Affairs Building F, Suite 100 2740 Centerview Drive Tallahassee, Fl 32301

Tallahassee, Fl 32399-2100

Brian and Kathy Charboneau Florida Administrative Commercial Materials Handling Law Reports

3208 Industrial 31st St. P.O. Box 385

Fort Pierce, FL 34946 Gainesville, FL 32602

Larry J. Sartin Hearing Officer

Div. of Admin. Hearings 1230 Apalachee Parkway Desoto Building Tallahassee, FL 32399-1500

Docket for Case No: 92-007438GM

Orders for Case No: 92-007438GM