STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY ) COMMISSIONERS OF PALM BEACH ) COUNTY, VILLAGE OF TEQUESTA ) and MARTIN COUNTY, )

)

Petitioners, )

)

vs. ) CASE NO. 95-5930GM

)

DEPARTMENT OF COMMUNITY ) AFFAIRS and TOWN OF JUPITER )

)

Respondents, )

)

and )

)

SHORES OF JUPITER ) HOMEOWNERS’ ASSOCIATION, ) INC., )

)

Intervenor. )

)

)

MARTIN COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2563GM

) DEPARTMENT OF COUMMUNITY ) AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this matter came on for hearing before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on August 26-28, 1996, and September 23-26, 1996, in West Palm Beach, Florida.

APPEARANCES

For Petitioner, Board of County Commissioners of Palm Beach County:

Paul R. Bradshaw, Esquire Bryant, Miller & Olive

201 South Monroe Street Tallahassee, Florida 32301

For Petitioner, Village of Tequesta:

Scott G. Hawkins, Esquire Post Office Box 3475

West Palm Beach, Florida 33402 For Petitioner, Martin County:

Gary K. Oldehof

Assistant County Attorney Martin County

2401 S.E. Monterey Road Stuart, Florida 33408

For Respondent, Department of Community Affairs:

Sherry A. Spiers Assistant General Counsel

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

For Respondent, Town of Jupiter:

Thomas J. Baird, Esquire 11891 U. S. Highway 1

North Palm Beach, Florida 33408

For Intervenor, The Shores of Jupiter Homeowners’ Association, Inc.:

David Russ, Esquire APGAR & PELHAM

909 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Amendment 95-2 to the Town of Jupiter Comprehensive Plan, as originally adopted by Ordinance 68-93 on October 3, 1995, and amended by Ordinance 13-96 on March 19, 1996, is “in compliance” as defined in Chapter 163, Part II, Florida Statutes (1995).

PRELIMINARY STATEMENT

The Town of Jupiter adopted an amendment to its comprehensive plan. The amendment, 95-2, was adopted on October 3, 1995, by Ordinance 68-93. On or about December 6, 1995, a petition challenging the amendment was filed by the Department of Community Affairs with the Division of Administrative Hearings.

The matter was designated case number 95-5930GM and was assigned to the undersigned.

The County Commissioners of Palm Beach County and the Shores of Jupiter Homeowners’ Association, Inc., intervened in case number 95-5930GM by Order entered January 8, 1996. The Village

of Tequesta was allowed to intervene in case number 95-5930GM by Order entered March 22, 1996.

The formal hearing of case number 95-5930GM was abated to give the parties an opportunity to settle their dispute. The Department of Community Affairs and the Town of Jupiter ultimately reached a stipulated settlement. Intervenors did not, however, enter into the settlement.

Upon the filing of the Stipulated Settlement Agreement, the abeyance of the matter was extended. Pursuant to the Stipulated Settlement Agreement, the Town of Jupiter modified Amendment 95-2 by Ordinance 13-96 on March 15 and 19, 1996. On or about April 20, 1996, the Department of Community Affairs caused a Notice of Intent to find the amendment in compliance to be published.

On or about May 2, 1996, Martin County filed a Petition in response to the April 20, 1996 Notice of Intent to find the modified amendment in compliance. The petition was filed with the Division of Administrative Hearing on May 23, 1996. The matter was designated case number 96-2563GM.

The Board of County Commissioners of Palm Beach County and the Village of Tequesta filed amended petitions in case number 95-5930GM in response to the modified amendment. The amended petitions were accepted by Order entered June 5, 1996.

By Order dated July 9, 1996, the parties in case number 95- 5930GM were realigned, the two cases were consolidated, the stay

was lifted and Martin County was allowed to intervene in case number 95-5930GM.

The final hearing of these cases was held on August 26-28, 1996, and September 23-26, 1996, in West Palm Beach. A transcript of the final hearing was filed on November 15, 1996. The transcript reflects the witnesses that testified at the final hearing and all exhibits accepted into evidence.

Proposed recommended orders were to be filed on or before December 4, 1996. Two short extensions of time were ultimately requested and granted. Proposed recommended orders were due on or before December 12, 1996. Petitioners filed a joint proposed recommended order on December 12, 1996. Respondents and Intervenor filed a joint proposed recommended order on December 12, 1996. The Department of Community Affairs also filed a separate recommended order.

The joint proposed recommended order filed by Respondents and Intervenor is 66 pages. The separate proposed order filed by the Department of Community Affairs is 6 pages. On December 16, 1996, Petitioners filed Petitioners’ Motion to Strike.

Petitioners requested that the joint proposed recommended order filed by Respondents and Intervenor be struck because it exceeds the page limit for proposed recommended orders imposed by Rule 60Q-2.031, Florida Administrative Code. A response to the motion was filed by Respondents and Intervenor. Petitioners have failed to explain how they are prejudiced by the length of the proposed

recommended order filed by Respondents and Intervenor. Petitioners’ Motion to Strike is, therefore, denied.

To the extent that the proposed orders of the parties contain proposed findings of fact not included or addressed in this Recommended Order, they have been rejected as cumulative, not supported by the weight of the evidence or irrelevant.

On December 30, 1996, Martin County filed a Notice of Filing Exhibit and Supplementing Record. Pursuant to this notice, Martin County filed Reports of the Treasure Coast Regional Planning Council dealing with the amendment that is the subject of these proceedings. The filing of these reports had been agreed to by the parties during the final hearing.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioners are all political subdivisions of the State of Florida.

   2. Petitioner, Board of County Commissioners of Palm Beach County (hereinafter referred to as “Palm Beach County”), is a county located on the southeast coast of Florida.

   3. Petitioner, Martin County, is a county located adjacent to, and north of, Palm Beach County. Part of Martin County’s boundary is located adjacent to the Town of Jupiter.

   4. Petitioner, the Village of Tequesta (hereinafter referred to as “Tequesta”), is a municipality located in Palm Beach County. Tequesta’s western boundary abuts the eastern boundary of the Town of Jupiter.

   5. Respondent, the Town of Jupiter (hereinafter referred to as “Jupiter”) is a municipality located in Palm Beach County. The plan amendment at issue in this proceeding was adopted by Jupiter. Jupiter has a population of approximately 39,000 people.

   6. Respondent, the Department of Community Affairs (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of, among other things, implementing Part II, Chapter 163, Florida Statutes, the Local Comprehensive Planning and Land Development Regulation Act (hereinafter referred to as the “Act”).

   7. Intervenor, the Shores of Jupiter Homeowners’ Association, Inc., is a not-for-profit Florida corporation. Intervenor represents the interest of the Shores of Jupiter residential development. The Shores of Jupiter is located in Jupiter.

2. The Geographic Area at Issue.

   
   

   1. The boundary of northeastern Palm Beach County which abuts the southwestern boundary of Martin County extends westerly from the Atlantic ocean for a couple of miles. The boundary then turns south for less than a mile before returning to the west.

   2. The area at issue in this proceeding consists of an area within the jurisdiction of four different local governments: Palm Beach County, Martin County, Jupiter and Tequesta.

   3. Jupiter and Tequesta are located in the northeast corner of Palm Beach County. See Palm Beach County exhibit 39.

   4. Tequesta is located in the extreme northeast corner of Palm Beach County. Part of the northern border of Tequesta abuts the southern boundary of Martin County.

   5. Jupiter is located primarily to the south of Tequesta. Most of Jupiter and Tequesta are separated by the Loxahatchee River (hereinafter referred to as the “River”). The River also has two branches separating Jupiter and Tequesta. See Palm Beach County exhibit 39.

   6. The northernmost portion of Jupiter abuts the Martin County-Palm Beach County boundary where the boundary turns to the south and then back to west.

   7. Most of the area at issue is comprised of residential subdivisions. Jupiter’s current and projected land uses are primarily residential. Land uses in Jupiter in 1995 and projected for 2000 in the Data and Analysis for the Jupiter Comprehensive Plan (hereinafter referred to as the “Plan”), suggest that residential uses and projected residential land uses of vacant land to be developed by the year 2000 will predominate in Jupiter.

   8. There is a relatively large tract of undeveloped land, referred to as “Section 28” during the formal hearing, which is not now used for residential purposes. Section 28 is located in the west, north-west portion of Jupiter. Section 28 abuts Martin County where the boundary of Palm Beach County and Martin County turn back to an east-west direction after the north-south turn.

   9. Section 28 is located to the east of Interstate 95 and the Sunshine Parkway, west of the River, north of Indiantown Road and south of the Martin County line.

3. Existing Transportation Corridors.

   
   

   1. The roads that are at issue in this proceeding are depicted on Palm Beach County exhibit 1. The road identified in red as Roosevelt Street is conceptual only. The depicted connection of Island Way and Northfork Drive is also conceptual.

   2. To the western boundary of Jupiter and the area at issue in this proceeding is located Interstate 95 and the Sunshine Parkway. Both roads begin a turn from a northerly direction to the northwest.

   3. The main corridor along the eastern portion of Jupiter located to the west of the North Fork of the River is Loxahatchee River Road. Loxahatchee River Road runs to the north from the intersection with Center Street and then follows the northwestern route of the North Fork of the River to the boundary of Martin County. The road continues into Martin County and connects with Island Way.

   4. Loxahatchee River Road functions as a county collector road. This means that it carries a high volume of traffic and is intended to connect and lead traffic from one set of local street connections to another.

   5. Loxahatchee River Road is bordered by unincorporated subdivisions, including Whispering Trails, Imperial Woods, Fox Run and Eagle’s Nest.

   6. Loxahatchee River Road is a two-lane road. It has been used for a number of years as a traffic corridor between Palm Beach and Martin Counties. It is poorly designed for this purpose. Its design pre-dates contemporary transportation planning. Houses face onto the road and have direct driveway access to the road. These houses are not protected from the road by a buffer.

   7. To the west of Loxahatchee River Road and to the east of I-95, the main north-south road corridor is made up of Longshore Drive and Northfork Drive (hereinafter referred to as the “Northfork/Longshore Corridor”). The Northfork/Longshore Corridor is a two-lane road.

   8. Longshore Drive runs in a generally northern direction from Central Boulevard until it connects with Northfork Drive. Northfork Drive continues in a generally northern direction. It parallels a portion of the boundary of Martin and Palm Beach Counties which runs north-south.

   9. The Northfork/Longshore Corridor is bordered by residential subdivisions, including the Shores of Jupiter, Northfork, The Preserve and Cypress Cove. All of these subdivisions were annexed by Jupiter in March, 1993.

   10. Northfork Drive was designed to accommodate a thoroughfare. Residents are buffered from the road and face away from it. Traffic from residents along Northfork Drive is directed to limited access roads to Northfork Drive.

   11. Northfork Drive terminates about a quarter of a mile south of the portion of the boundary of Martin and Palm Beach Counties that runs east to the Atlantic Ocean and where the boundary turns to the south.

   12. Approximately a quarter of a mile north of the termination point of Northfork Drive is the southern termination point of Island Way. Island Way is located in Martin County. An

       unpaved right-of-way separates the southern terminus of Island Way and the northern terminus of the Northfork/Longshore Corridor.

   13. In the south, the main east-west corridor is Indiantown Road and Center Street. Indiantown Road is a primary commercial area for residents of the area at issue. Residents in the area use the Northfork/Longshore Corridor and Loxahatchee River Road to access these commercial areas.

   14. The road system of the area at issue is dominated by the River and its tributaries. The River creates a physical barrier to travel by the residents of the area. Due to this barrier, Central Boulevard, Church Street and Roebuck Road, which all connect with the Northfork/Longshore Corridor and Loxahactchee River Road, provide the primary routes for residents of the area to access Indiantown Road.

4. Transportation Planning for the Area.

   
   

   1. A number of factors have caused difficulties in planning for the traffic needs of the area at issue in this proceeding. The area is constricted by the River, the area is under the jurisdiction of four local governments, all of which are involved in this proceeding, and the north-south jog in the boundary of Palm Beach and Martin Counties has the potential to create greater traffic impacts between the two counties.

   2. The fact that the area is primarily residential and largely existing development also contributes to the problem.

      Most motor vehicle trips generated in the area involve travel to and from residents in the area to destinations outside the area. The fact that the development already exists makes it difficult to establish a comprehensive internal grid street system with a continuous and unfragmented regional road network. Future planned developed will only add to this problem.

   3. The projected development of Section 28 could significantly add to the traffic problems of the area. Section

      28 is bounded on the west by I-95 and the turnpike. Traffic generated in the area will have to travel north into Martin County or south and east through Jupiter. Roads required for travel into Martin County from Section 28 do not exist.

   4. Prior to 1993 the Northfork/Longshore Corridor was located in unincorporated Palm Beach County. In 1986 Palm Beach County undertook a transportation study for northern Palm Beach County. Public meetings were conducted and studies were undertaken to evaluate roadway corridors for the area necessary to accommodate existing and future traffic. The evaluation included a consideration of the needs of traffic moving between Palm Beach and Martin Counties.

   5. As a result of Palm Beach County’s study, it was ultimately concluded that three intercounty thoroughfares were needed for the area: (a) Loxahatchee River Road; (b) Longshore Drive(connected to Northfork Drive, connected to Island Way); and

      (c) a new corridor, the “Western Corridor”. Loxahatchee River

      Road and the Northfork/Longshore Corridor were added to the Palm Beach County Thoroughfare Identification Map.

   6. Loxahatchee River Road was already being utilized as an intercounty traffic corridor despite design limitations for such use.

   7. Hearings were conducted by Palm Beach County in November, 1987, at which the use of Longshore Drive was considered as a possible second corridor. The Jupiter transportation planner at the time presented a report comparing possible thoroughfare alignments, including the suggestion that Longshore Drive be connected to a thoroughfare to be constructed through the area where Northfork Drive was ultimately constructed and that the thoroughfare be connected with Island Way. Palm Beach County accepted this suggestion.

   8. The Western Corridor, if constructed, would run through Section 28 and probably connect Indiantown Road with Island Way. The exact route for such a corridor has not been decided. Nor has right-of-way for the corridor be acquired or funding for the corridor been set aside.

   9. The Loxahatchee River Road and the Northfork/Longshore Corridor were added to Palm Beach County’s Thoroughfare Right-of- Way Identification Map (hereinafter referred to as the “TIM”). Although the TIM is not used to identify capital improvements, it

      is used by Palm Beach County in the Traffic Circulation Element of Palm Beach County’s comprehensive plan as a land use planning tool.

5. Annexation of the Shores of Jupiter.

   
   

   1. Palm Beach County suggested in 1989 that the various municipalities in the county should look at areas which could be annexed into the municipality while promoting the efficient delivery of urban services.

   2. Jupiter looked at unincorporated areas surrounding it as possible areas to annex, consistent with Palm Beach County’s suggestion. Jupiter looked at areas which might be annexed also in order to comply with its own Plan, which was adopted in 1990.

   3. As part of its consideration of areas which it considered desirable to annex, Jupiter routinely sent letters to communities explaining the benefits of annexation by Jupiter. Jupiter also addressed concerns expressed about annexation by businesses and residents of areas it was considering.

   4. Since 1990, Jupiter annexed approximately 50 different properties.

   5. Among the areas considered for annexation by Jupiter were subdivisions located along Northfork Drive, including the Shores of Jupiter. Discussions between Intervenor and Jupiter about annexation of the Shores of Jupiter began in 1992.

   6. Intervenor made it clear to Jupiter that it would consider supporting annexation only in Jupiter supported its

      efforts to avoid the connection of the Northfork/Longshore Corridor to Island Way. Counsel for Jupiter informed the then Town Manager of Intervenor’s position in a memorandum dated July 23, 1992:

      The Shores does not want a through road or “T” intersection at the northern boundary of the Northfork subdivision . . ., which allows Longshore Drive to be extended into Martin County. The Shores is intractable on this issue. Anything less than the Town’s vigorous support of the Shores in this regard will doom the annexation unless the Town supports to the fullest extent the prevention of Longshore Drive’s extension into Martin County. Consequently, if there is to be another corridor in northern Palm Beach County, The Shores would only support the “western corridor.” . . .

      See Palm Beach County exhibit 28.

      
      

   7. As a solution to Intervenor’s concerns, Jupiter’s attorney suggested the following solution:

      The proper vehicle for the Town to address the concerns of The Shores is through the Town’s comprehensive plan. Of course, the Town’s comprehensive plan can only be applied to The Shores, Northfork, Shorewood and Cypress Cove subdivisions and the Longshore Drive corridor, if these areas are within the municipal jurisdiction of the Town.

      Nevertheless, the Town Council can publicly describe its intention to adopt appropriate goals, objectives and policies it proposes to adopt as part of amendments to its comprehensive plan to address the concerns of The Shores. It may also be appropriate for the Town to address corridor planning issues, in particular, appropriate alignments, if any, of a “western corridor” in the Transportation Element Plan. Finally, the Town should consider including the alignment of a “western corridor” as part of its western interchange planning study.

   8. In a letter dated February 16, 1993, the Mayor of Jupiter, the Honorable Karen J. Golonka, informed residents of the Shores of Jupiter of a special referendum election on the issue of annexation of the Shores of Jupiter into Jupiter. Mayor Golonka suggested that residents vote “Yes” on the referendum and gave the “top three reasons” why Jupiter believed annexation would be in the best interest of residents of the Shores of Jupiter. In addition to the improved law enforcement protection and the protection of property values, Mayor Golonka informed residents that, while members of the Palm Beach County commission were supporting the connection of the Northfork/Longshore Corridor to Island Way, Jupiter was opposed to the connection. Mayor Golonka indicated that Jupiter had adopted Resolution 47-92 expressing the following:

      • the Town’s opposition to making Longshore Drive a major arterial, and

      • the Town’s intention, if the annexation is successful, is to amend our Comprehensive Plan to ensure that Longshore Drive remains the treelined collector street seen today.

        
        

        Palm Beach County exhibit 7.

        
        

   9. Resolution 47-92 had been adopted by Jupiter in September of 1992 because Intervenor had asked Jupiter to take a formal position on the question of the Northfork/Longshore Corridor connection with Island Way.

   10. In March, 1993, a dual referendum was conducted concerning the annexation of certain areas, including the Shores of Jupiter.

   11. The Shores of Jupiter was subsequently annexed by Jupiter.

   12. While the position taken by Jupiter with the Intervenor prior to the adoption of the amendment at issue in this proceeding does not conclusively prove that the amendment is not “in compliance” with the Act due to the lack of adequate data and analysis to support the amendment, the evidence did prove that Jupiter had already decided to take a position similar to the position established in the amendment without determining whether adequate data and analysis for that position existed.

6. The Challenged Amendment Adopted Through Ordinance 68-93.

   
   

   1. Subsequent to the annexation of the Shores of Jupiter, Jupiter proposed an amendment to its Plan which included, among other things, a proposed Policy 1.4.4 providing, in part, that “[t]he Town will discourage any connections of Northfork Drive to Island Way or any other road or roadway corridor located in Martin County.”

   2. The plan amendment proposed by Jupiter (hereinafter referred to as the “Original Plan Amendment”) was not transmitted to the Department until September of 1994.

   3. Following its review of the Original Plan Amendment in October, 1994, the Department issued its Objections,

      Recommendations and Comment Report (hereinafter referred to as the “First ORC”). The Department raised several objections to the Original Plan Amendment. Among other things, the Department objected on the basis of the lack of supporting data and analysis, lack of specificity of the proposed policies, lack of intergovernmental coordination and the creation of internal inconsistencies in Jupiter’s Plan.

   4. Jupiter responded to the First ORC on October 9, 1995. In response to the objections raised by the Department with regard to Policy 1.4.4, Jupiter responded that it intended to change the policy to provide that the policy to discourage the connection of Northfork Drive would only apply in the absence of a “demonstrated need “for the connection. See Palm Beach County exhibit 33. Jupiter also informed the Department that the data and analysis that supported Policy 1.4.4 consisted of a 1994 traffic planning study, the Joint Local Government Traffic Engineering Study (hereinafter referred to as the “Joint Traffic Study”), and Jupiter’s analysis of the Joint Traffic Study. While Jupiter suggested that it relied upon other “data and analysis”, the response to the Department’s First ORC only indicates that Jupiter relied upon the Joint Traffic Study.

   5. On October 3, 1995, following a public hearing, Jupiter adopted Ordinance 68-93 and the Original Plan Amendment therein.

   6. On December 1, 1995, the Department issued a Notice of Intent to Find Not in Compliance Jupiter’s Original Plan

      Amendment. A Statement of Intent describing numerous inconsistencies found by the Department between the Original Plan Amendment and the Act was entered with the notice.

7. Petition for Formal Hearing, Settlement Negotiations and Adoption of the Remedial Amendment.

   
   

   1. On or about December 6, 1995, a petition challenging Jupiter’s Original Plan Amendment was filed by the Department with the Division of Administrative Hearings. The matter was designated case number 95-5930GM and was assigned to the undersigned.

   2. Palm Beach County and the Shores of Jupiter Homeowners’ Association, Inc., were allowed to intervene in case number 95- 5930GM by Order entered January 8, 1996. Tequesta was allowed to intervene in case number 95-5930GM by Order entered March 22, 1996.

   3. The formal hearing of case number 95-5930GM was abated to give the parties an opportunity to settle their dispute. The Department, Jupiter and the Shores of Jupiter ultimately reached a stipulated settlement. Palm Beach County and Tequesta did not, however, enter into the settlement.

   4. Upon the filing of the Stipulated Settlement Agreement, the abeyance of case number 95-5930GM was extended. Pursuant to the Stipulated Settlement Agreement, Jupiter modified Amendment 95-2 by Ordinance 13-96 on March 15 and 19, 1996.

   5. On or about April 20, 1996, the Department of Community Affairs caused a Notice of Intent to find Amendment 95-2

      (hereinafter referred to as the “Remedial Amendment”), in compliance to be published.

   6. On or about May 2, 1996, Martin County filed a petition in response to the April 20, 1996 Notice of Intent to find the Remedial Amendment in compliance. The Petition was filed with the Division of Administrative Hearing on May 23, 1996. Martin County’s petition was designated case number 96-2563GM.

   7. Palm Beach County and Tequesta filed amended petitions in response to the Remedial Amendment. The amended petitions were accepted by Order entered June 5, 1996.

   8. By Order dated July 9, 1996, the parties in case number 95-5930GM were realigned, the two cases were consolidated, the stay was lifted and Martin County was allowed to intervene in case number 95-5930GM.

8. The Remedial Amendment.

1. The Remedial Amendment adopted by Jupiter and found in compliance by the Department includes an addition to the Traffic Circulation Element of Jupiter’s Plan. The Remedial Amendment adds Goal 4, Objective 4.1 and eight policies to implement the Goal and Objective to the Traffic Circulation Element of the Plan.

2. The Remedial Amendment adopted by Jupiter provides the following, with modifications to the Original Plan Amendment noted:

   Neighborhood Protection

   
   

   The Town of Jupiter recognizes the need for a traffic circulation system that serves the needs of its residents, provides roadways with the least amount of congestion, promotes business and economic development of the community, and protects existing and proposed residential neighborhoods. The construction of new roads or expansion of existing roads should be accomplished in a manner that minimizes any impacts on the Town’s residential neighborhoods.

   
   

   The Town can minimize the impacts of road construction or expansion through such means as : diverting the flow of through traffic away from streets that serve existing neighborhoods, discouraging future thoroughfare or traffic circulation plans which encourage nonresidential or non- resident use of neighborhood streets, requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan, and coordinating/cooperating with all appropriate governmental agencies to ensure new or expanded roadways will not adversely affect the Town’s residential areas.

   
   

   With respect to intergovernmental coordination/cooperation, the Town should work closely with both Palm Beach County and Martin County adjacent local governments and any other appropriate governmental entities to ensure that future transportation planning, roadway construction, and development approvals are supportive of efforts to protect and enhance existing and proposed residential neighborhoods.

   
   

   GOAL 4: To accommodate a variety of regional, intercounty, intracounty, and local travel demands in ways that minimize traffic congestion; encourage pedestrians; reduce the overall amount of travel for daily goods and services; and protect the integrity of existing neighborhoods.

   Objective 4.1: The Town of Jupiter will continue to study and evaluate whether or not an additional intercounty or intracounty transportation corridor for the area west of Loxahatchee River Road, east of I-95, and north of Indiantown Road is desired or needed in this geographic area; and assuming such a corridor is necessary, shall coordinate/cooperate with adjacent local governments and any other appropriate and governmental entities to identify the appropriate thoroughfare route of that corridor.

   
   

   Policy 4.1.1 The Town of Jupiter, in

   coordination/cooperation with Palm Beach County, Martin County, the Village of Tequesta, the Metropolitan Planning Organization, and other appropriate governmental agencies, shall encourage and participate in long range transportation planning efforts that protect existing or proposed residential neighborhoods by locating new or expanded roadways in a manner that does not adversely affect such neighborhoods.

   Policy 4.1.2 The Town of Jupiter, to the

   extent possible, shall encourage the construction of new roads and the expansion of existing roads in a manner that protects existing or proposed residential neighborhoods by diverting or eliminating the flow of non-resident or through traffic, and requiring that the functional classification of local roadways may not be changed without amending the Comprehensive Plan.

   Policy 4.1.3 The Town Shall rReview planning

   and other data generated by the Town’s western interchange study and other appropriate sources to determine whether or not the County’s western corridor should be aligned with Island Way or other right-of- way in Martin County west of The Shores.

   Policy 4.1.4 The Town shall

   coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods.

   Coordination/cooperation may

   include mediation.

   
   

   Policy 4.1.5 In the event an additional

   intercounty or intracounty roadway serving Palm Beach County and Martin County via Island Way or other right-of- way is necessary, this corridor’s route shall be aligned to a north-south route west of the present Jupiter Community Park.

   Policy 4.1.6 If an additional intercounty

   or intracounty corridor is constructed, the Town shall coordinate/cooperate with adjacent local governments to not align the corridor so as to not adversely impact existing residential neighborhoods.

   
   

   Policy 4.1.7 The Town shall

   coordinate/cooperate with Palm Beach County, Martin County, the Village of Tequesta, and any other affected governmental agencies to establish an overall vehicular circulation plan, including any additional north-south transportation corridors needed to alleviate existing or anticipated traffic congestion.

   Policy 4.1.8 The Town shall

   coordinate/cooperate with Martin County, Palm Beach County, the Village of Tequesta, and any other affected governmental agencies to discourage the creation of intercounty or intracounty traffic circulation patterns that provide ingress and egress to residential or nonresidential developments in Martin County solely through the Town of Jupiter and Palm Beach County. [Additions indicated by underlined words and eliminated words struck through].

3. Pursuant to the Remedial Amendment, Jupiter essentially modified the Original Plan Amendment, found to be not in compliance by the Department, by:

   1. Changing the term “cooperate” to “coordinate/cooperate”;

   2. Indicating that Jupiter will involve “adjacent local governments and any other appropriate governmental entities” in its efforts; and

   3. Modifying Policy 4.1.4 (formerly numbered Policy 1.4.4) as follows:

   The Town shall coordinate/cooperate with adjacent local governments and affected neighborhoods to further the Town’s policy to discourage any connection of Northfork Drive to Island Way or to any other road or roadway corridor located in Martin County that cannot be justified with respect to based on demonstrated need. ‘Demonstrated need’ is determined by coordinated analysis of the existing and planned road network with and without the connection, maintenance of level of service standards over the planning timeframe, and consideration of other traffic, roadway and land use alternatives, balanced along with the Town’s policy to protect residential neighborhoods.

   Coordination/cooperation may include

   mediation. [Additions indicated by underlined words and eliminated words struck through].

   
   

   1. The Adequacy of Data and Analysis.

      
      

4. The data and analysis submitted by Jupiter in support of the Original Plan Amendment and found to be inadequate by the Department consisted of the Joint Traffic Study and Jupiter’s analysis thereof. No additional data and analysis has been provided by Jupiter.

5. The Department, while disagreeing with Jupiter and Intervenor as to the relevancy and adequacy of the Joint Traffic Study, suggested at hearing that the Remedial Amendment is

   supported by data contained in the Plan. In particular, the Land Use Intergovernmental Coordination and Traffic Circulation Elements.

6. The stated purpose of the Joint Traffic Study was to:

   
   

   . . . determine existing traffic patterns crossing the Martin/Palm Beach Count Line in the vicinity of Jupiter and Tequesta for todays travel and to make a reasonable projection of probable future traffic patterns when the area reaches build-out that the engineering professionals of the affected jurisdictions could agree upon. Elected officials would then be able to look at regional roadway issues and needs required to meet the projected levels of traffic.

   Joint Exhibit 7

   
   

7. The Joint Traffic Study was a collaborative effort of the local governments involved in these proceedings.

8. In order to understand whether the Joint Traffic Study provides data and analysis which can be relied upon to support the Remedial Amendment, it must be understood what portion of the Remedial Amendment is at issue.

9. The Remedial Amendment reflects several policy choices of Jupiter. For example, the Remedial Amendment reflects the policy of Jupiter of protecting the character of its neighborhoods. See, e.g., Objective 4.1. The data of the Plan is sufficient to support this broad, general policy.

10. Policy 4.1.4 of the Remedial Amendment also reflects a policy choice of Jupiter that the connection of Northfork Drive and Island Way, or any similar connection, should be discouraged.

    This policy choice reflects a conclusion that such a connection is not necessary or, if necessary, the detriments to the surrounding neighborhoods of the Northfork/Longshore Corridor will outweigh the need for the connection. Neither the Plan nor the Joint Traffic Study support these conclusions.

11. Policy 4.1.5 and 4.1.8 also go beyond establishing a general policy of protecting neighborhoods. Policy 4.1.5 reflects a policy of Jupiter that if there is a need to connect Island Way with a corridor in Palm Beach County it should be accomplished through construction of a Western Corridor. Policy

    4.1.8 reflects a policy that no ingress and egress should be allowed through any neighborhood in Jupiter.

12. While a general policy of protecting neighborhoods may be supported by the Plan, the application of Policies 4.1.4,

    4.1.5 and 4.1.8 requires more than a mere assumption that the connection of Northfork Drive to Island Way will result in detriments that outweigh any benefits of the connection, that the Western Corridor is THE method of connection between Martin and County and Palm Beach County which should be pursued, and that under no circumstances should ingress and egress be allowed through any neighborhood. Such conclusions require more.

13. Jupiter has recognized that plan provisions which control land use and development activities and those addressing specified minimum criterion of the law must be supported by the highest level of data and analysis. Jupiter suggests, however,

    that the Remedial Amendment is merely an “aspirational provision, one which projects more subjective community-desired-outcomes and is not intended to satisfy one of the mandated minimum criteria areas”. Jupiter argues, therefore, that the Remedial Amendment “demands a less rigorous foundation in data and analysis.” While Jupiter may be correct that the policy choice of the Remedial Amendment concerning general neighborhood protection is aspirational, it is not correct as to the other policy choices concerning the need for the connection of Northfork Drive and Island Way, the need for the Western Corridor or the need to prevent all ingress and egress road in Jupiter. Those policy choices directly reflect land use and development activities as they relate to transportation.

14. Simply assuming that the connection of Northfork Drive and Island Way and that ANY road providing ingress and egress through a Jupiter neighborhood will be harmful to the neighborhoods that border the Northfork/Longshore Corridor ignores the possibility that the connection could be beneficial to other areas of Jupiter due to reductions in traffic in those areas. It also ignores the possibility that steps can be taken to minimize any detrimental impacts. It also ignores the possibility that there may be an insignificant increase in traffic as a result of the connection and/or that the impacts of any increase in traffic may be eliminated through design modifications of the Corridor.

15. Likewise, Jupiter’s assumption that the only way of resolving the need for north-south connector roads between Martin and Palm Beach Counties or within north Palm Beach County should only be accomplished by a Western Corridor ignores other solutions that will better serve the residents of the areas involved.

16. Jupiter’s assumption or intuition also fails to take into account the impact of its policy choices on other governments. For example, the impact on the residents surrounding Church Street if the connection is not made is reflected in the Joint Traffic Study. Jupiter’s assumption allows it to ignore this possible impact.

17. The Joint Traffic Study is deficient for a number of reasons. First, the Joint Traffic Study does not reflect current conditions in the area studied. At the time the Original Plan Amendment was submitted, Jupiter also submitted a land use change for a 183 acre tract of land known as the Weiser Tract. The submittal reflected a change of 158 acres from industrial use to residential use. The Joint Traffic Study had been prepared a year and a half prior to this proposed change and, therefore, does not take this significant modification into account.

18. The modification of the land use of the Weiser Tract could have a significant impact on traffic and, therefore, the conclusions and information contained in the Joint Traffic Study.

19. Because of the land use modification not reflected in the Joint Traffic Study, the Joint Traffic Study cannot be said to constitute the best available data to support the Remedial Amendment.

20. The Joint Traffic Study purports to project or forecast traffic volumes in the area as a result of the build-out of land uses reflected in the comprehensive plans of the local governments involved in the study. In fact, however, the data gathered for the study was data on development and zoning, not projected plan build-out. The evidence failed to prove that development and zoning reflects projected plan build-out. Therefore, it cannot be concluded that the data contained in the Joint Traffic Study was collected and applied in a professionally acceptable manner.

21. The methodology utilized for the Joint Traffic Study also does not support its use as data and analysis to support Jupiter’s policy choice concerning the connection of Northfork Drive and Island Way. The Joint Traffic Study was not intended to provide a formal transportation analysis of alternatives from which one of the local governments involved would elect one alternative.

22. While the Joint Traffic Study may utilize a methodology used by traffic planning engineers on an everyday basis, the evidence failed to prove that traffic planning engineers would use it for the purpose that Jupiter has used it. For Jupiter to

    rely on the Joint Traffic Study to conclude that the connection of Northfork Drive and Island Way is not necessary and that the policies reflected in Policies 4.1.5 and 4.1.8 are necessary, it would be necessary for the Joint Traffic Study to include an alternative analysis or the data to perform such an analysis. It does not. Such an analysis should compare construction costs and environmental impacts of alternative traffic alignments. Such a study should also include short and long-range projections for traffic conditions, land use data, level-of-service standards and functional classifications for area roads, or existing level-of- service standards.

23. Jupiter’s analysis of the Joint Traffic Study is also inadequate. The Joint Traffic Study discusses four different scenarios. Jupiter, however, elected to only utilize two of those scenarios.

24. As to the existing Plan, the portions of the Plan relied upon by Jupiter and the Department, while recognizing the importance of the coordination of issues related to roads and traffic safety, do not support the specific objective of the Remedial Amendment to discourage the connection of specific roads, the location of the Western Corridor or the prevention of roads of ingress and egress in Jupiter. Nor do the provisions of Plan which provide an inventory of pertinent agencies and provide that the agencies should be contacted and worked with on common problems.

25. While data and analysis support the other provisions of the Remedial Amendment, data and analysis does not support Policies 4.1.4, 4.1.5 and 4.1.8.

    1. Conditional Policy or Self-Amending Policy.

       
       

26. Policy 4.1.4 provides that the general policy of Jupiter is (in cooperation/coordination with other agencies) to discourage the connection of Northfork Drive and Island Way UNLESS there is a “demonstrated need” for the connection. It has been suggested by Petitioners that this provision creates a self- amending policy--a policy that may change without the need to follow the amendment procedures required in the Act.

27. In support of this position Petitioners have argued that if demonstrated need is found by Jupiter to have been shown, the policy to discourage automatically ceases to be the policy of Jupiter even though the amendment process of the Act has not been fulfilled--that the policy of discouragement becomes “inoperative”.

28. A self-amending policy is one which changes as the result of an event that is unknown and unspecified at the time the policy is adopted. Typically, a self-amending policy is one that provides that certain things will occur if some other event, such as the amendment of a law by another jurisdiction, takes place. For example, if the policy is “X” unless law “Z” is modified, then the policy will be whatever law “Z” requires even though law “Z” may be amended in the future. Because it cannot

    be known how law “Z” may be amended in the future, policy “X’s” reliance on law “Z” is self-amending.. Obviously, that is not the type of policy at issue in this proceedings.

29. A conditional policy, which Jupiter suggests Policy

    
    

    1. contains, is one which may change if certain clear contingencies or alternatives, described at the time of adoption of the Policy, are provided. For example, a policy that allows a general residential density but provides that, if land is to be used for affordable housing, a different density will be allowed, is an example of a conditional policy.

30. The policy at issue in this proceeding is not a self- amending policy. It sets out a clear general policy: to discourage the connection of Northfork Drive and Island Way. And it sets out specific conditions for changing that policy: the showing of demonstrated need, which is further defined by the policy.

31. The evidence failed to prove that Policy 4.1.4 is a self-amending policy.

    1. Unbridled Discretion?

       
       

32. Petitioners have suggested that Policy 4.1.4, in particular, the portion of the Policy providing for the determination of whether there is a “demonstrated need” for a connection of Northfork Drive and Island Way, vests unbridled discretion in Jupiter.

33. In support of this position, Petitioners have pointed to the failure of Policy 4.1.4 to specify the following:

    a) the specific office or person that will make the determination; and

    (b) the specific time(s) when the determination will be made.

34. Petitioners have also argued that the Policy fails to specify sufficient objective criteria to be considered in determining whether there has been a showing of demonstrated need and argue that Jupiter is not capable of performing the balancing of need against its policy to protect its neighborhoods.

35. As to the lack of specificity as to which office or person will perform the needs analysis, a reading of the Plan, with the Remedial Amendment, makes it clear that the ultimate responsibility rests with Jupiter and its governing body. Whether the alleged need is raised from within or without Jupiter need not be specified. The Act does not require more than that Jupiter be ultimately responsible.

36. As to when the analysis will or may be performed, the lack of specificity would not be fatal in and of itself if the policy to discourage were supported by data and analysis. If the general policy to discourage the connection were supported by data and analysis, then the needs analysis could be performed at any time. Having failed to provide data and analysis to support

    the general policy, the lack of specificity as to when an initial determination of need will take place is contrary to the Act.

37. The evidence also failed to prove that the definition of “demonstrated need” is inadequate. The “demonstrated needs” analysis specified by the Policy is similar to the type of analysis that would be required for Jupiter to make the policy choices concerning the lack of need for the connection of Northfork Drive and Island Way. Had it performed such an analysis before adopting the Remedial Amendment, there might have been sufficient data and analysis to support its policy choices.

38. Finally, the question of whether Jupiter is capable of carrying out the balancing of demonstrated need and its neighborhood protection policy involves the application of the Policy. This is not an issue of whether the language of the Policy is “in compliance” with the Act.

    1. The Use of the Term “Discourage”.

       
       

39. Evidence was presented by Petitioners to suggest that the term “discourage” as used in Policy 4.1.4 is vague and, therefore, violative of the Act.

40. The term “discourage” is not a technical term. Therefore, it should be given its plain ordinary dictionary meaning.

41. Whether the term, as defined in its ordinary sense, is so vague as to be violative of the Act must be determined in the context of the policy in which it is used.

42. In this matter, the lack of specificity as to what specific actions Jupiter will take to “discourage” the connection of Northfork Drive and Island Way does not render Policy 4.1.4 so vague as to be violative of the Act.

43. What is violative of the Act is the policy choice of Jupiter to “discourage” the connection without first adequately considering whether this particular connection should be discouraged.

    
    

    1. Inconsistency with Palm Beach County’s Thoroughfare Identification Map.

       
       

44. Palm Beach County’s charter gives it control over the levels of service allowable on certain collector and arterial roads within the county, even if they are within the boundary of municipalities. This provision allows Palm Beach County to comprehensively plan a countywide transportation network.

45. Palm Beach County’s responsibility for a comprehensive countywide transportation network is reflected in its comprehensive plan. In particular the plan includes a concurrency management system and a thoroughfare identification map (hereinafter referred to as the “TIM”). The TIM reflects the collector and arterial roads over which Palm Beach County exercises transportation authority.

46. The purpose of the TIM is to identify right-of-way required to carry out Palm Beach County’s provision of a countywide transportation network.

47. The TIM has reflected the connection of Northfork Drive and Island Way as part of the countywide transportation network since 1989.

48. Jupiter suggests that the use of the word “discourage” rather than the more absolute language contained in the Original Plan Amendment, eliminates any inconsistency with the TIM. Jupiter has also suggested that all the TIM does is identify right-of-way and the Remedial Amendment does nothing to eliminate that right-of-way. Jupiter’s position concerning the TIM is rejected.

49. The use of the term “discourage” does not eliminate the fact that Jupiter is taking the position in its Plan that Northfork Drive and Island Way should not be connected. Until demonstrated otherwise, this is the stated policy of Jupiter. The TIM on the other hand reflects a decision of Palm Beach County that the connection may be necessary for the benefit of the countywide transportation network.

50. The narrow view of the purpose of the TIM, that it only is intended to protect right-of-way, ignores the broader purpose for which right-of-way is being protected: to insure that Palm Beach County can carry out its countywide transportation network plans. Policy 4.1.4 is inconsistent with that purpose.

    1. Impact of the Remedial Amendment on Petitioners.

    
    

51. The Petitioners are all local governments that adjoin Jupiter.

52. Palm Beach County has responsibility in the area at issue to insure that the road system in Palm Beach County is in place to accommodate growth as it occurs, to have an appropriately planned system that will handle growth and to maintain the system once it is in place.

53. The Remedial Amendment eliminates one of the possible corridors which Palm Beach County has identified as necessary to carry out its responsibility. It also specifies the location of the Western Corridor as a means of solving north-south corridor needs and eliminates alternatives involving ingress and egress to Jupiter.

54. The use of the Northfork/Longshore Corridor connected to Island Way could be accomplished at a cost of approximately

    $200,000.00 plus the cost of acquiring the right-of-way.

    
    

55. The cost of constructing the Western Corridor, which has been suggested as an alternative to the connection with Island Way of Northfork Drive would be 6 to 7 million dollars.

56. There would be other costs that may be incurred to raise the levels of service on other roads if Northfork Drive is connected with Island Way.

57. The impact of the Remedial Amendment on Palm Beach County could result in delays in its ability to meet its responsibility to meet the needs for improvements in the road system of the area due to increased growth. The Remedial Amendment could also eliminate consideration of the connection

    and cause the need to pursue more costly alternative road corridors necessary to meet growth in the area.

58. The Remedial Amendment could have the same impact on Martin County and Tequesta. Without the connection the area involved will have an additional traffic burden what will fall on the roads of Martin County, Palm Beach County and Tequesta, requiring the improvement of facilities in those jurisdiction.

59. The evidence, while not proving the specific costs, does suggest that there will be a need for the road system of the area to handle greater and greater amounts of traffic due to increased growth in the future. The road system of the area will have to be improved to meet that increased traffic. The Remedial Amendment eliminates an alternative method of handling the increased traffic and, therefore, requires that the increased traffic be handled by infrastructure which will have to be provided by one or more of the Petitioners.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

60. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.57(1) and 163.3184, Florida Statutes.

    1. Standing.

       
       

61. Proceedings challenging proposed plan amendments pursuant to Section 163.3184, Florida Statutes, may be

    participated in by any “affected person”. Section 163.3184(9) and (10), Florida Statutes.

62. An “affected person” is defined in Section 163.3184(1)(a), Florida Statutes, in pertinent part, as follows:

    “Affected person” includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction. . . .

    [Emphasis added].

    
    

63. Petitioners have alleged that they are affected persons because they are adjoining local governments and the Remedial Amendment will “produce substantial impacts on the increased need for publicly funded infrastructure”. ”. None of the Petitioners alleged, or attempted to prove, that they otherwise came within the definition of an “affected person”.

64. The burden of proof with regard to standing was on the Petitioners. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, So.2d 412 (Fla. 4th DCA 1974).

65. The evidence proved that Petitioners are all “adjoining local governments.” Petitioners also proved that the Remedial Amendment will produce substantial impacts on the increased need for publicly funded infrastructure.

66. Jupiter has suggested that the proof concerning the impact on Petitioners was too speculative to conclude that there will in fact be a need for infrastructure as a result of the Remedial Amendment. Jupiter is correct to a certain extent. The evidence did not prove that there would in fact be a specific increase in the need for infrastructure of all three Petitioners as a result of the Remedial Amendment.

67. The difficulty with Jupiter’s position, however, is that the data and analysis to support the Remedial Amendment does not exist. In particular, data and analysis to support taking a position that the connection of Island Way and Northfork Drive should be avoided, that any north-south connector road should be the Western Corridor and that under no circumstance should there be a road providing ingress and egress to Jupiter has not been provided. Without such data and analysis, it cannot be determined what the specific impact of these policy choices may be.

68. The evidence, while not proving the specific costs, does suggest that there will be a need for the road system of the area to handle greater and greater amounts of traffic due to increased growth in the future. The evidence also proved that the road system of the area will have to be improved to meet that increased traffic. Finally, the evidence proved that the Remedial Amendment eliminates an alternative method of handling the increased traffic and, therefore, requires that the increased

    traffic be handled by infrastructure of one or more of Petitioners. That is sufficient to concluded that Petitioners are affected persons.

    1. Burden and Standard of Proof.

    
    

69. 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 788(Fla. 1st DCA 1981).

70. Section 163.3184, Florida Statutes, places the burden of proof on the person challenging a plan amendment. Therefore, in this proceeding the burden of proof was on Palm Beach County, Tequesta and Martin County.

71. The standard of proof is a more difficult issue. Section 163.3184, Florida Statutes, establishes different standards of proof depending on whether a plan amendment is determined by the Department to be “in compliance” or to be “not in compliance”.

72. Where the Department determines that a plan amendment is not in compliance, Section 163.3184(10), Florida Statutes, establishes the following with regard to the standard of proof:

    . . . The local government’s determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government’s determination that elements of its plans are

    related to and consistent with each other shall be sustained if the determination is fairly debatable.

    
    

73. If the Department determines that a plan amendment is in compliance, Section 163.3184(9), Florida Statutes, provides the following with regard to the standard of proof:

    [T]he local plan or plan amendment shall be determined to be in compliance if the local government’s determination of compliance is fairly debatable.

    
    

74. In this matter, the Original Plan Amendment was determined to be not in compliance. The Department, however, after negotiations with Jupiter, ultimately found the Remedial Amendment to be in compliance. Section 163.3184(16)(f)1 and 2, Florida Statutes, provide the solution to the standard of proof should apply under these circumstances.

75. Pursuant to Section 163.3184(16)(f)1, Florida Statutes, proceedings initiated after a determination of non- compliance which are subsequently settled by the Department and the local government are generally to be governed by Section 163.3184(9), Florida Statutes. Section 163.3184(16)(f)2, Florida Statutes, provides an exception, however, for “any of the issues raised by the state land planning agency in the original subsection (10) proceeding [which] are not resolved by the compliance agreement amendments . . . .” [Emphasis added].

76. In this proceeding, Jupiter, the Department and Intervenor all argue that all issues raised by the Department have been “resolved” by the Remedial Amendment and, consequently,

    the standard of proof is the standard established pursuant to Section 163.3184(9), Florida Statutes.

77. While Petitioners do not dispute the fact that issues that have been “resolved” are subject to the standard of proof of Section 163.3184(9), Florida Statutes, they have argued that there are several possible interpretations of what constitutes “resolved”. The interpretations range from one that would required a complete review by the Administrative Law Judge of whether changes in a remedial amendment bring the amendment into compliance, to one that would result in a conclusion that any issue originally raised by the Department in its initial determination has been resolved by the Department’s subsequent conclusion that the remedial amendment has brought the plan amendment into compliance. Petitioners suggest that, pursuant to the most appropriate interpretation of the term, “the compliance agreement must, at a minimum, expressly and specifically address the same subject matter raised by the objection”.

78. The Department, Jupiter and Intervenor take a different position concerning the interpretation of the term “resolved.” It is their position that “resolved” means:

    eliminated from contention between the Department and the other party or parties to the agreement, even if an objective observer might quarrel with whether or not the agreeing parties (1) had provided sufficient evidence that an objection should no longer be maintained or (2) had changed plan or plan amendment language enough to address the issue concretely.

79. After consideration of the arguments of the parties, it is concluded that an issue is “resolved” if the issue was initially raised by the Department in its statement of intent as a basis for its determination that a plan amendment is not in compliance, the Department and the local government subsequently enter into a compliance agreement, the local government adopts remedial amendments consistent with that compliance agreement and the Department subsequently issues a notice of intent finding the remedial amendment in compliance.

80. Applying the foregoing interpretation to the term “resolved” to this matter, it is concluded that all of the issues raised by Petitioners in case number 95-5930GM have been “resolved”. All of the issues raised by Petitioners were issues initially raised by the Department in finding the Original Plan Amendment not in compliance and all of those issues were subsequently eliminated by the adoption of the Remedial Amendment to the satisfaction of the Department.

81. The standard of proof in this proceedings is, therefore, the standard established under Section 163.3184(10), Florida Statutes. Petitioners must prove it is not “fairly debatable” that the Remedial Amendment is “in compliance”.

82. Petitioners must demonstrate beyond reasonable debate or legitimate controversy that he Remedial Amendment is not in compliance. B & H Travel Corp. v. Department of Community

    Affairs, 602 So.2d 1362 (Fla. 1st DCA 1992), review denied, 613

    
    

    So.2d 1; Machado v. Musgrove, 519 So.2d 629 (Fla. 3rd DCA 1987).

    
    

    1. The Petitioners’ Challenge--The Remedial Amendment is Not “In Compliance”.

       
       

83. Whether the Remedial Amendment is “in compliance” is the issue in this matter. 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, 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.

    
    

84. Petitioners have suggested that the Remedial Amendment is not in compliance because data and analysis supporting the Remedial Amendment was not provided by Jupiter, Jupiter exceeded its authority under the Act to adopt the Remedial Amendment, the Remedial Amendment is a “self-amending” provision, it contains internal inconsistencies, including the requirement that intergovernmental coordination be provided and is inconsistent with the applicable regional and state plans.

    1. Data and Analysis.

       
       

85. All goals, objectives and policies of a plan are required by the Act to be “clearly based” on “relevant” and “appropriate” data. Section `163.3177(1) and (8). See also Rule 9J-5.005(2), Florida Administrative Code, which provides that to be based upon data “means to react to it in an appropriate way and to the extent necessary. . . .” Data relied upon by a local

    government must be the “best available” data “collected and applied in a professionally acceptable manner.”

86. The evidence in this case proved that the data and analysis relied upon by Jupiter and the Department is insufficient to support the policy choice of Jupiter that Northfork Drive and Island Way would cause detriment to the neighborhoods surrounding Northfork Drive contrary to Jupiter’s neighborhood protection policies or that, if such detriment would occur, that the benefits to be derived from such a connection would not outweigh the detriment.

87. The evidence also proved that data and analysis to support the policies of Policy 4.1.5 and 4.1.8 has not been provided by Jupiter.

88. Because of the lack of data and analysis for support, Policies 4.1.4, 4.1.5 and 4.1.8 of the Remedial Amendment are not in compliance to the extent that it adopts such a policy.

89. Jupiter’s reliance on the decision in Department of Community Affairs v. City of Fort Myers, ER FALR 92:063 (Fla. Admin. Comm. April 8, 1992), is misplaced. The Remedial Amendment is distinguishable from the plan amendment at issue in that case.

    1. Scope of Jupiter’s Authority to Amend its Plan.

       
       

90. Petitioners have argued that Jupiter lacks the authority to adopt the Remedial Amendment to the extent that

    Jupiter is attempting to prevent improvements to Northfork Drive. The evidence in this case failed to support this argument.

91. In support of their position, Petitioners point out that municipalities only have planning authority pursuant to the Act over areas within their jurisdiction. See Section 163.3171(1), Florida Statutes. Petitioners suggest that the Remedial Amendment is an attempt by Jupiter to deprive Palm Beach County of its authority over Northfork Drive and is, therefore, outside its jurisdiction and is inconsistent with its authority under the Act.

92. Petitioners’ argument is premised on its assertion that Palm Beach County has authority over the maintenance of levels of service on Northfork Drive pursuant to its charter. Petitioners’ argument is also premised on its position that the Remedial Amendment prevents Palm Beach County from exercising any authority it may have over Northfork Drive.

93. The difficulty with Petitioners position is that the Remedial Amendment does not prevent Palm Beach County from exercising its authority over Northfork Drive. The Remedial Amendment only sets out a policy to prevent or discourage the connection of Northfork Drive. While preventing the connection of Northfork Drive to Island Way may eliminate the need for improvements to Northfork Drive, it does not stop Palm Beach County from making whatever improvements it believes are necessary on Northfork Drive as it currently exists.

    1. Self-Amending Amendment.

       
       

94. Petitioners have argued that the Remedial Amendment is not in compliance because it allows Jupiter to amend its plan in the future without complying with the requirements of the Act as to how plans may be amended. Petitioners assert that the Remedial Amendment contains a “self-amending” provision and is not, therefore, in compliance with Section 163.3189, Florida Statutes.

95. The Remedial Amendment does not contain a self- amending provision. It provides for a change in policy but only if an established, defined, condition takes place. The condition involves the application of established criteria. If “demonstrated need” is shown, the policy of discouraging the connection will end.

96. The evidence failed to prove that the Remedial Amendment contains a self-amending policy in violation of Section 163.3184, Florida Statutes.

    1. Internal Inconsistency.

       
       

97. Section 163.3177(2), Florida Statutes, and Rule 9J- 5.005(5)(a) and 9J-5.109(3), Florida Administrative Code, require consistency between elements of a plan. These provisions have been correctly interpreted by the Department to require consistency within an element.

98. In this matter, Policy 4.1.4 of the Remedial Amendment, to the extent that it reflects a decision to oppose

    the connection of Northfork Drive and Island Way, and policies

    
    

    1. and 4.1.8 are inconsistent with other provisions of the Remedial Amendment and the Plan.

99. The Remedial Amendment contemplates continued study and cooperation with other jurisdictions to determine and meet the needs for roadways in the area. Policies 4.1.4, 4.1.5 and 4.1.8, however, reach conclusions about what is necessary without the data and analysis required to support those conclusions. These provisions are inconsistent with the rest of the Remedial Amendment.

100. Policies 4.1.4, 4.1.5 and 4.1.8 are also inconsistent with Goal 1 of the Traffic Circulation element of the Plan which requires Jupiter to establish a means to coordinate transportation-related issues with Palm Beach County and Martin County. Those policies are also inconsistent with Objective 3.3 and Policy 3.3.1 of the Plan which require Jupiter to protect and maintain rights-of-way continued in the TIM.

     1. Intergovernmental Coordination.

     
     

101. Section 163.3161(4), Florida Statutes, provides the following with regard to governmental coordination:

     It is the intent of this act to encourage and assure cooperation between and among municipalities and counties and to encourage and assure coordination of planning and development activities of units of local government with the planning activities of regional agencies and state government in accordance with applicable provisions of law.

102. Section 163.3177(6)(h)l, Florida Statutes, requires that plans under the Act contain an intergovernmental coordination element. See also, Rule 9J-5.015, Florida Administrative Code.

103. Unlike the plan amendment involved in the Ft. Myers case, the Remedial Amendment does not take a position which is contrary to the position of other local governments. No position has yet been taken by other local governments for Jupiter to oppose. Instead, Jupiter has taken a position to prevent other local governments, and even Jupiter itself, from considering possible alternatives for solving the traffic problems which the area will undoubtedly face in the future. They have taken this position without the data and analysis to support their decision.

104. Jupiter’s policy concerning how the problem should be resolved--by completing the Western Corridor and not connecting Northfork Drive and Island Way--prevents intergovernmental coordination on this issue contrary to its Plan and the Act. Policies 4.1.4, 4.1.5 and 4.1.8 are, therefore, not in compliance.

     1. Consistency with the Regional Policy Plan.

        
        

105. While the Petitioners offered, without objection, the report of the Treasure Coast Regional Planning Council concerning the Remedial Amendment into evidence, there was no evidence to support a finding that those objections are correct or that the

     Regional Planning Council believes that the deficiencies apply to the Remedial Amendment.

106. Petitioners failed to meet their burden of proof with regard to inconsistencies with the regional plan.

     1. Consistency with the State Comprehensive Plan.

     
     

107. Chapter 187, Florida Statutes, is the state comprehensive plan. The Act requires plan amendments be consistent with the state comprehensive plan. Section 163.3184(1)(b), Florida Statutes.

108. The evidence failed to prove that the Remedial Amendment is inconsistent with the state plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Administration Commission enter a Final Order finding Policies 4.1.4, 4.1.5 and 4.1.8 not in compliance with the Act.

DONE AND ENTERED this 24th day January, 1997, in Tallahassee, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1997.

COPIES FURNISHED:

Paul R. Bradshaw, Esquire Bryant, Miller & Olive

201 South Monroe Street Tallahassee, Florida 32301

Barbara Alterman Assistant County Attorney

Palm Beach County Attorney’s Office Post Office Box 1989

West Palm Beach, Florida 33402

Scott G. Hawkins, Esquire Post Office Box 3475

West Palm Beach, Florida 33402

Gary K. Oldehoff Assistant County Attorney Martin County

2401 S.E. Monterey Road Stuart, Florida 33408

Sherry A. Spiers Assistant General Counsel

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Thomas J. Baird, Esquire 11891 U. S. Highway 1

North Palm Beach, Florida 33408

Thomas G. Pelham, Esquire David Russ, Esquire

APGAR & PELHAM

909 East Park Avenue Tallahassee, Florida 32301

Bob Bradley

Executive Office of the Governor Administration Commission

1601 The Capitol

Tallahassee, Florida 32399

Barbara Leighty, Clerk

Growth Management and Strategic Planning Administration Commission

2105 The Capitol

Tallahassee, Florida 32399

Gregory Smith, Esquire Administration Commission

209 The Capitol

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-005930GM

Orders for Case No: 95-005930GM