STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WINDWARD PASSAGE, LTD., a )

Florida Limited Partnership, )

)

Petitioner, )

)

vs ) CASE NO. 95-3915GM

) DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Respondent, )

and )

)

MARTIN COUNTY, )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on February 12, 1996, in Stuart, Florida.

APPEARANCES

For Petitioner: W. Jay Hunston, Jr., Esquire

515 North Flagler Drive

19th Floor, Northbridge Tower West Palm Beach, Florida 33401

For Respondent: Bridgett Ffolkes

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Intervenor: Robert K. Guthrie

Martin County Attorney Gary K. Oldehoff Assistant County Attorney

Martin County Administrative Center 2401 South East Monterey Road Stuart, Florida 34997

STATEMENT OF THE ISSUE

The issue in this case is whether an amendment to the Martin County Comprehensive Plan is "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

On or about May 23, 1995, Intervenor, Martin County, adopted an amendment to the Martin County Comprehensive Plan by Ordinance No. 461. The amendment was transmitted to, and reviewed by, Respondent and determined to be "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes. Petitioner, Windward Passage, Ltd., a Florida Limited Partnership, filed a Petition Challenging Determination of Compliance with Respondent.

On August 8, 1995, Respondent filed the Petition with the Division of Administrative Hearings and requested assignment of the matter to a Hearing Officer. The Petition was designated case number 95-3915GM and was assigned to the undersigned.

Martin County filed a Motion to Intervene on September 19, 1995.

Intervention was granted by an Order entered October 5, 1995.

At the final hearing Petitioner presented the testimony of Walter J. Mackey, Jr. (identified as "Robert J. Mackey, Jr." in the transcript of the final hearing), Joe R. Price and Robert E. Basehart. Petitioner also offered fifteen exhibits. Three of the exhibits were offered as rebuttal exhibits. All of Petitioner's exhibits were accepted into evidence except Petitioner's exhibits 13 and 14. A ruling on exhibits 13 and 14 was reserved.

Respondent did not call any witnesses or offer any exhibits.

Intervenor did not call any witnesses. Intervenor offered nine exhibits.

Intervenor's exhibits were accepted into evidence.

Seven joint exhibits were accepted into evidence.

A transcript of the final hearing was filed on March 8, 1996. By agreement of the parties proposed recommended orders were required to be filed on or before March 18, 1996. All three parties filed proposed orders. 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.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Windward Passage, Ltd. (hereinafter referred to as "Windward"), is a Florida limited partnership.

      
      

   2. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act").

      
      

   3. Intervenor, Martin County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County, pursuant to the Act, has adopted a comprehensive plan.

      
      

2. Windward's Standing.

   1. Windward owns real property located in the County. Windward owns a parcel located to the east and south of the parcel of real property which is the subject of the amendment at issue in this case.

      
      

   2. Representatives of Windward attended the transmittal and adoption hearings on the amendment which is the subject of this proceeding. Comments were offered by Windward's representatives during these hearings.

      
      

3. General Description of the County.

   
   

   1. The County is located on the east coast of Florida. It is bounded on the south by Palm Beach County, on the north by St. Lucie County, on the west by Lake Okeechobee and on the east by the Atlantic Ocean.

      
      

   2. The County has a population of approximately 114,000.

      
      

4. The County's Comprehensive Plan.

   
   

   1. On or about February 20, 1990, the County adopted by Ordinance 373 the Martin County Comprehensive Growth Management Plan (hereinafter referred to as the "Plan"), in accordance with the Act.

      
      

   2. The Plan contains all elements required by the Act, including a Future Land Use Element and a Future Land Use Map.

      
      

   3. The Plan has been determined to be "in compliance" with the Act.

      
      

   4. The Future Land Use Element of the Plan establishes several land use categories, including Estate Density Residential, a residential category, and Institutional Recreation, a public use category.

      
      

5. The Subject Property and the Surrounding Area.

   
   

   1. On or about March 24, 1992, the County purchased a parcel of real property (hereinafter referred to as the "Subject Property").

      
      

   2. The Subject Property is located in the east-central portion of the County in a community known as Hobe Sound.

      
      

   3. Prior to its purchase the Subject Property was used for a number of purposes, including a boat ramp. The dilapidated boat ramp and a boat basin in a deep water cove exists on the Subject Property.

      
      

   4. The Subject Property was purchased pursuant to a program known as the County's "Lands for You Program" for use as a resource-oriented park with a public boat ramp. The Lands for You Program is a program for acquiring properties for public recreation or conservation use.

      
      

   5. The Subject Property was reviewed by a committee established by the County as part of the Lands for You Program and determined to be suitable for public recreational uses.

      
      

   6. The Subject Property consists of approximately 31.7 acres. The Subject Property is rectangular in shape. It measures approximately 660 feet, north to south, and 2,000 feet, east to west.

   7. The Subject Property is bounded on the east by a channel of water that connects with the Intercoastal Waterway, on the west by Gomez Avenue, on the north by a single-family subdivision known as Bahia Sound and on the south by property owned by Windward.

      
      

   8. Between the channel of water that bounds the Subject Property on the east and the main channel of the Intercoastal Waterway is an island known as Corset Island. Corset Island is undeveloped.

      
      

   9. The Intercoastal Waterway is bounded on the east by Jupiter Island. The portion of Jupiter Island immediately adjacent to the Subject Property consists of the St. Lucie Inlet Preserve.

      
      

   10. To the west of the Subject Property are developed and undeveloped single-family parcels, an agricultural nursery (on Gomez Avenue) and the Florida East Coast Railroad.

       
       

   11. Immediately to the north of Bahia Sound is a County park known as Pecks Lake Park. Pecks Lake Park is also bounded on the east by the Intercoastal Waterway and on the west by Gomez Avenue.

       
       

   12. Windward's property abutting the Subject Property on the south consists of approximately 22.5 undeveloped acres. It is generally the same shape as the Subject Property. This portion of the property is approximately

       500 feet, north to south.

       
       

   13. Windward also owns Corset Island. Corset Island consists of approximately 28 acres of undeveloped land.

       
       

   14. Windward acquired its property in approximately 1981.

       
       

   15. Windward's property is designated Estate Density Residential on the Future Land Use Map of the Plan.

       
       

   16. The eastern 300 to 500 feet of the Windward property and most of Corset Island consists of wetland mangroves. Corset Island also consists of undevelopable wetlands.

       
       

   17. To the south of Windward's property are developed (subdivisions of single-family homes) and undeveloped tracts of real property. Further south are developed single-family subdivisions located on canals.

       
       

   18. There are a number of docks located on canals and along the Intercoastal Waterway throughout the area surrounding the Subject Property. Essentially every developed subdivision to the north and south of the Subject Property has a community dock for a number of boats. There is also a boat ramp located on a developed area known as Governor's Landing to the south of the Subject Property.

       
       

   19. Boating is an adjunct of home ownership throughout the area to the north and south of the Subject Property.

       
       

   20. There is a large docking facility to the north of Peck's Lake Park.

       
       

6. The Challenged Amendment.

   1. On May 23, 1994, the County adopted an amendment to the Plan, Amendment 94-E (hereinafter referred to as the "Challenged Amendment").

      
      

   2. The Challenged Amendment modifies the Future Land Use Map, Map 10, of the Plan by changing the future land use designation of the Subject Property from "Estate Density Residential" to "Institutional Recreation."

      
      

   3. Section 4-4 of the Plan establishes goals, objectives and policies concerning the Future Land Use Map of the Plan. Section 4-4 includes Goal M, Objective 1, Policy e(1) and (2), defining "Residential Estate Densities" future land use designations. The designations are essentially the same, except for allowed densities. Residential Estate Densities "are primarily assigned to established stable residential areas "

      
      

   4. Section 4-4 of the Plan includes Goal M, Objective 1, Policy h, defining the "Institutional Recreation" designation:

      
      

      h. Policies (Institutional Development)

      . . . .

      (1) Recreational - Recreational lands are designed for activity-based and resource- based recreational uses and typically contain recreational facilities and substantial access improvements. Lands assigned the [Recreation category may be developed only as public recreation areas]. . . . [Lands acquired by the County for Recreational uses shall be reclassified to the Institutional-Recreation land use designation during the next plan amendment cycle]. [Emphasis added].

      
      

   5. The Challenged Amendment allows the County to develop the Subject Property for use as a park with a public boat ramp, which is the intended use of the Subject Property. The Challenged Amendment does not, however, require that the Subject Property be used only for a public boat ramp or even specifically provide that the Subject Property will include a public boat ramp.

      
      

   6. The Challenged Amendment was not initiated by application. Instead, the Challenged Amendment was adopted pursuant to Section 1-11, B. of the Plan:

      
      

      . . . . The Martin County Board of County Commissioners or the Local Planning Agency may, [by resolution], at any time, initiate a request to amend, modify, add to or change

      the Comprehensive Growth Management Plan . . . .

      [Emphasis added].

      
      

7. The Department's Review of the Challenged Amendment.

   
   

   1. On or about December 20, 1994, the County transmitted the Challenged Amendment to the Department.

      
      

   2. The Department received a request on behalf of Windward to review the Challenged Amendment. The Department complied with the request.

   3. The Department completed its review on or about April 20, 1995. The Department advised the County by letter that it had no objections to the Challenged Amendment.

      
      

   4. Subsequent to the adoption of the Challenged Amendment by the County, the Department caused to be published a Notice of Intent finding the Challenged Amendment in compliance.

      
      

   5. Windward timely filed a petition challenging the Department's determination.

      
      

8. Zoning Modification of the Subject Property.

1. The Ordinance adopting the Challenged Amendment also changes the zoning of the Subject Property.

   
   

2. The Ordinance provides that the Subject Property will have "a zoning district change from A-1A (Agricultural District) to PS (Public Service)."

   
   

3. While the modification in zoning was accomplished in the same Ordinance adopting he Challenged Amendment, the modification does not modify the Plan in any way.

   
   

4. The Challenged Amendment, the modification of the Plan itself, does not deal with zoning of the Subject Property.

   
   

   I. Alleged Incompatibility of the Subject Property's Land Use Designation with the Surrounding Area; Alleged Lack of Data and Analysis.

   
   

5. Windward alleged that the Challenged Amendment is inconsistent with the surrounding area and that the County lacked sufficient data and analysis to conclude that the Challenged Amendment is consistent with the surrounding area. In attempting to support this contention, Windward addressed the use of the Subject Property as a park with a boat ramp.

   
   

6. The Challenged Amendment subject to review by the Department does not provide for the development of the Subject Property as a park with a boat ramp. Therefore, Windward's proof concerning consistency of a boat ramp with the surrounding area is not relevant to a determination of whether the Challenged Amendment is consistent with the surrounding area or whether the County had sufficient data and analysis to conclude that the Challenged Amendment is consistent with surrounding land uses.

   
   

7. The Challenged Amendment subject to review by the Department consists of only a change in the land use designation of the Subject Property. That change involves the designation the Subject Property pursuant to the Plan as "Institutional Recreation". Pursuant to the Challenged Amendment, the Subject Property may be used consistent with the definition of the "Institutional Recreation" land use definition contained in Section 4-4, Goal M, Objective 1, Policy h of the Plan.

   
   

8. The evidence presented in this case failed to prove that the designation of the Subject Property as "Institutional Recreation" is inconsistent with surrounding land uses or that the County lacked data and analysis to determine that the designation is consistent with surrounding land uses.

9. The County was provided with minutes of a meeting of the Martin County Local Planning Agency and Planning and Zoning Board held on December 8, 1994. Use of the Subject Property for Institutional Recreation purposes (and as a park with a boat ramp) was considered and discussed at this meeting.

   
   

10. The County was also provided with a copy of a report titled the "South County Boat Ramp Location Analysis Report". This report was prepared by the County's Park Development Division and considered the use of four different parcels, including the Subject Property, for the construction of a boat ramp. The report contained information concerning the Subject Property and the surrounding area pertinent to the County's decision to redesignate the Subject Property from a residential use to "Institutional Recreation."

    
    

11. A document titled "Detailed Analysis", prepared by County growth management staff, was also provided to the County. The report described existing uses and future land use designations for the surrounding area.

    
    

12. The documents provided to the County included a number of maps and aerial photographs of the Subject Property and the surrounding area. Those photographs alone support a conclusion that the use of the Subject Property for recreation-boating purposes is consistent with the surrounding area.

    
    

13. The County was also provided with maps that show subdivisions and development within approximately a 2-3 mile radius, a future land use map indicating the variety of land uses and designations within an approximately 1- mile radius, and a tax map indicating subdivisions and ownership in the immediate area.

    
    

14. Based upon the information considered by the County, it cannot be concluded that the designation of the Subject Property as "Institutional Recreation", even if a boat ramp is ultimately built on the site, is not compatible with the surrounding the Subject Property or that the County lacked sufficient data and analysis to so conclude. There is already a park used for recreation purposes in the area. Providing access to, and recreational uses of, the water on the Subject Property is consistent with the existing access to, and recreational uses of, the water by residents in the surrounding area.

    
    

    J. Consistency of the Challenged Amendment with the Plan.

    
    

15. The Plan provides for the Lands Acquisition Selection Program as a means of evaluating and selecting sites for public recreational uses, including boat ramps. The evidence failed to prove that the selection of the Subject Property was inconsistent with the Program.

    
    

16. The Plan provides that property purchased by the County is to be designated as "Institutional" during the next Plan amendment cycle. Section 4- 4, Goal M, Objective 1, Policy h. The Challenged Amendment is consistent with this requirement.

    
    

17. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the Plan.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

18. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1995).

    
    

    1. Burden of Proof.

       
       

19. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

20. In this proceeding, the burden of proof is placed on Windward by Section 163.3184(9), Florida Statutes, to prove to the exclusion of "fair debate" that the Challenged Amendment is not "in compliance".

    
    

    1. Windward Failed to Meet Its Burden of Proof.

    
    

21. In order to prevail in this proceeding, Windward was required to prove that the Challenged Amendment is not "in compliance." Section 163.3184(9), Florida Statutes.

    
    

22. The terms "in compliance" are defined in Section 163.3184(1)(b), Florida Statutes:

    
    

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

    
    

23. Windward has suggested that the Challenged Amendment is not "in compliance" for essentially two reasons: (a) the Challenged Amendment was not adopted in compliance with Section 163.3189, Florida Statutes; and (b) there is inadequate data and analysis to support the Challenged Amendment because the designation of the Subject Property is inconsistent with the surrounding area.

    
    

24. As to Windward's position concerning the procedure followed by the County in adopting the Challenged Amendment, the evidence failed to prove that the Challenged Amendment was not adopted consistent with the provisions of the Plan.

    
    

25. As to Windward's position concerning the compatibility of the land use designation of the Subject Property with land uses in the surrounding area, Windward failed to meet its burden of proof. The evidence presented by Windward dealt primarily with the question of whether the use of the Subject Property as a "public park with a boat ramp" is a use that is supported by data and analysis and a use that is consistent with the surrounding area land uses.

    
    

26. The difficulty with Windward's position is that it ignores how the Challenged Amendment actually modifies the Plan: it changes the land use designation of the Subject Property to "Institutional Recreation". Section 4-4, Goal M, Objective 1, Policy h, of the Plan defines the "Institutional Recreation" designation as follows:

    h. Policies (Institutional Development)

    . . . .

    (1) Recreational - Recreational lands are designed for activity-based and resource-based recreational uses and typically contain recreational facilities and substantial

    access improvements. Lands assigned the [Recreation category may be developed only as public recreation areas]. [Lands

    acquired by the County for Recreational uses shall be reclassified to the Institutional- Recreation land use designation during the next plan amendment cycle]. [Emphasis added].

    
    

27. Neither the Challenged Amendment's designation of the Subject Property as "Institutional Recreation" nor the definition of "Institutional Recreation" establish the Subject Property as a park and/or a boat ramp.

    
    

28. While it is true that the County considered the use of the Subject Property as a park with a boat ramp and likely will utilize the Subject Property for that purpose, the review by the Department and the issue in this case should be limited to whether the Challenged Amendment (a redesignation of the land use of a parcel of property), and not its ultimate use, is "in compliance".

    
    

29. It is the change in the land use designation of the Subject Property which Windward was required to prove was, beyond fair debate, not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. Windward failed to meet its burden.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Community

Affairs concluding that Windward Passage, Ltd., has failed to prove that the Challenged Amendment is not "in compliance" and dismissing the Petition filed by Windward Passage, Ltd.

DONE and ENTERED this 19th day of April, 1996, 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 19th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3915GM

The parties 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.

Windward's Proposed Findings of Fact 1-5 Not relevant.

1. See 12. The second sentence is not relevant.

2. Not relevant.

8-11 Hereby accepted.

1. Accepted in 17.

2. Accepted in 18-19 and 21.

3. See 4-5 and 23. Whether "residents" opposed the Challenged Amendment is not relevant.

4. Accepted in 5, 39 and 41-42. 16 See 4-5.

17-18 Argument. See 37.

1. Argument and conclusion of law.

2. See 37. Not relevant.

21-25 Not supported by the weight of the evidence.

26-28 The County and Department did not have the burden of proof in this case. Not supported by the weight of the evidence.

29-35 Not supported by the weight of the evidence. 36-37 Not relevant.

38 The County and Department did not have the burden of proof in this case. Not supported by the weight of the evidence.

39-40 Not supported by the weight of the evidence.

The Department's Proposed Findings of Fact

1. Accepted in 1 and 4.

2. Accepted in 2.

3. Accepted in 3.

4. Accepted in 6 and hereby accepted.

5. Accepted in 6.

6. Accepted in 8.

7. Accepted in 9.

8. Accepted in 11.

9. Accepted in 32-33.

10. Accepted in 17-19.

11. Accepted in 12 and 15-16.

12. Accepted in 58.

13. Accepted in 20-23 and hereby accepted.

14. Accepted in 38.

15. Accepted in 39.

16. Accepted in 39-40.

17. Accepted in 40.

18. Hereby accepted.

19. Accepted in 32. 20-21 Accepted in 47.

Martin County's Proposed Findings of Fact

1. Accepted in 1 and 4.

2. Accepted in 5.

3. Accepted in 2.

4. Accepted in 3.

5. Accepted in 6 and hereby accepted.

6. Accepted in 6.

7. Hereby accepted.

8. Accepted in 7.

9. Accepted in 8.

10. Hereby accepted.

11. Accepted in 9 and 11.

12. Accepted in 32-33.

13. Accepted in 36.

14. Accepted in 12 and 17-18.

15. Accepted in 17-18.

16. Accepted in 17.

17. Accepted in 12.

18. Accepted in 15-16. 19-20 Accepted in 14.

21-22 Hereby accepted.

1. Accepted in 13 and 18.

2. Accepted in 21.

3. Accepted in 18 and 22.

4. Accepted in 23.

27-28 Accepted in 28.

1. Accepted in 18-19 and 24.

2. Accepted in 20.

3. Accepted in 21.

4. Hereby accepted. 33-34 Accepted in 29.

1. Accepted in 23-24.

2. Accepted in 25.

3. Accepted in 23-24.

4. Accepted in 26. 39-40 Accepted in 27.

1. Accepted in 23.

2. Accepted in 12 and 15.

3. Accepted in 16. 44-45 Hereby accepted.

46 Accepted in 38. 47-48 Accepted in 39.

1. Accepted in 40.

2. Hereby accepted.

3. Accepted in 32.

4. Accepted in 44. 53-56 Not relevant.

57 Hereby accepted. See 47. 58-59 Accepted in 48-50.

60-62 Accepted in 51-56.

1. Hereby accepted.

2. Accepted in 52. 65-66 Not relevant.

1. Accepted in 29-31 and 54.

2. Accepted in 54.

3. Accepted in 56.

4. Accepted in 21, 28 and hereby accepted.

5. Hereby accepted.

6. Not relevant.

7. Accepted in 57.

8. Accepted in 35. 75-78 Not relevant.

79 Hereby accepted.

COPIES FURNISHED:

W. Jay Hunston, Jr., Esquire

515 N. Flagler Drive

19th Floor - Northbridge Tower West Palm Beach, Florida 33401

Brigette Ffolkes Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Robert K. Guthrie Martin County Attorney Gary K. Oldehoff

Assistant County Attorney

Martin County Administrative Center 2401 S. E. Monterey Road

Stuart, Florida 34997

James F. Murley Secretary

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Stephanie M. Gehres General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 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.

Docket for Case No: 95-003915GM

Orders for Case No: 95-003915GM