STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS

BOARD OF COUNTY COMMISSIONERS OF MARTIN COUNTY

Petitioner,

vs.

CITY OF STUART, DOAH Case No. 97-4582GM

Respondent,

and

DEPARTMENT OF COMMUNITY AFFAIRS and HOSPICE FOUNDATION OF MARTIN & ST. LUCIE, INC.,

Intervenors.

/ BOARD OF COUNTY COMMISSIONERS

OF MARTIN COUNTY

Petitioner,

vs. DOAH Case No. 98-0794GM

CITY OF STUART and

DEPARTMENT OF COMMUNITY AFFAIRS,

Respondents.

/ BOARD OF COUNTY COMMISSIONERS

OF MARTIN COUNTY,

Petitioner,

vs. DOAH Case Nos. 98-5501GM

98-5503GM

DEPARTMENT OF COMMUNITY AFFAIRS and CITY OF STUART,

Respondents.

/

1000 FRIENDS OF FLORIDA, INC.,

vs.

DEPARTMENT OF COMMUNITY AFFAIRS DOAH Case No. 98-55lOGM and CITY OF STUART,

Respondents.

/

FINAL ORDER

This matter was considered by the Secretary of the Department of Community Affairs ("the Department") following receipt and consideration of a Recommended Order issued by an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings. A copy of the Recommended Order is attached hereto as Exhibit A.

BACKGROUND

This matter involves challenges pursuant to Section 163.3184(9), F.S., to comprehensive plan amendments adopted by the City of Stuart, designated amendments 97-S1, 97-1, 98-R1, and 98-ER1 by the Department of Community Affairs (the "Plan Amendments.")

The Department published its notice of intent to find the amendment "in compliance," as defined in Section 163.3184(1)(b),

F.S. Formal administrative proceedings were initiated by the timely filing of petitions after publication of the notice of intent. A formal hearing was conducted by Administrative Law Judge ("ALJ") Larry J. Sartin of the Division of Administrative Hearings. Following the hearing, the ALJ submitted his Recommended Order to the Department. The ALJ recommended that the Department enter a final order determining that all of the Plan Amendments are in compliance.

Petitioners Martin County and 1000 Friends of Florida, Inc., (hereinafter referred to as "the Petitioners") and Respondents City of Stuart and Department of Community Affairs, filed Exceptions to the Recommended Order. All of these parties filed responses to the exceptions filed by the other parties. In addition, the Department submitted a Motion for Official Recognition, the Petitioners submitted a Motion to Remand, and the City filed a Response to the Motion to Remand.

ROLE OF THE DEPARTMENT

Throughout the pendency of the formal administrative proceedings, the Department contended that the Plan Amendments are in compliance. After the ALJ issued his Recommended Order, the Department assumed two functions in this matter.

The attorney and staff who advocated the Department's position throughout the formal proceedings continued to perform that function by reviewing the Recommended Order and filing Exceptions and Responses to Exceptions urging that the Department find most of the Plan Amendments in compliance. The other role is performed by the Secretary of the Department and agency staff who took no part in the formal proceedings, and who have reviewed the entire record and the Recommended Order in light of the Exceptions and Responses.

Based upon that review, the Secretary of the Department must either enter a final order consistent with the ALJ's recommendations finding the Plan Amendments in compliance, or determine that the Plan Amendments are not in compliance and submit the Recommended Order to the Administration Commission for final agency action. Section 163.3184(9)(b), F.S.

THE PLAN AMENDMENTS

The cases involve amendments to the City of Stuart's future land use map ("FLUM") relating to parcels of land annexed by the City of Stuart in 1997 and 1998. Findings of fact 52, 61 & 76-

78. The annexations totaled almost 1,200 acres, and increased the geographic size of the City by 48 percent. Finding of fact

45. Most of the annexed property had been designated commercial or industrial under the Martin County Comprehensive Plan. Finding of fact 103. The FLUM amendments resulted in very little change in the land uses for the annexed parcels. The possible

intensity of use on the annexed parcels was reduced by the City's map amendments. Finding of fact 110.

The cases also involve the City's Evaluation and Appraisal Report (EAR) -based amendments, which included a "Future Annexation Area" map and a revised Intergovernmental Coordination Element (ICE). Findings of fact 85 to 90, and 171 to 172.

RULING ON MOTION FOR OFFICIAL RECOGNITION

The Department's litigation staff requested that official recognition be taken of a certification filed with the Secretary of State which indicates that Rule Chapter 9J-40, F.A.C., was repealed on September 24, 1999. The certification is an of official action of an executive department of the state of Florida, and may be officially recognized. §90.202(5), F.S. The Department's Motion was not opposed by any party.

The Motion for Official Recognition is GRANTED.

STANDARD OF REVIEW

The Administrative Procedure Act, Chapter 120, F.S., requires agencies to accept the ALJ's findings of fact and conclusions of law, except under certain limited circumstances.

Section 120.57(1)(1), F.S. (1999), provides the standard of review for findings of fact in the Recommended Order. It provides, in relevant part:

Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

The Department cannot reweigh the evidence considered by the ALJ. The Department cannot reject findings of fact made by the ALJ unless there is no competent substantial evidence in the record to support the findings. Heifitz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); and Bay_County School Board v. Bryan, 679 So.2d 1246 (Fla. 1st DCA 1996), construing a provision substantially similar to Section 120.57(1)(1), F.S. (Supp. 1998).

The Department also has limited authority to reject or modify the ALJ's conclusions of law. Section 120.57(1)(1), F.S. (1999), provides that:

The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or

interpretation of administrative rule is as or more reasonable than that which was rejected or modified.

The label assigned to a statement is not dispositive as to whether that statement is a conclusion of law or a finding of fact. Sapp v. Florida State Board of Nursing, 384 So. 2d 254 (Fla. 2d DCA 1980); Leapley v. Board of Regents, 423 So. 2d 431 (Fla. 1st DCA 1982); Heifetz v. Department of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985); Kinney v.

Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987). It is the true nature and substance of the ALJ's statement that controls an agency's authority to reject a finding of fact or modify a conclusion of law. J.J. Taylor Companies. Inc. v.

Department of Business and Professional Regulation, 724 So. 2d

192 (Fla. 1st DCA 1999).

RULINGS ON EXCEPTIONS TO FINDINGS OF FACT

Tax Base: City of Stuart Exception

The ALJ found that, "There has been a negative impact on Martin County's ad valorem tax base by the annexation of properties formerly under its jurisdiction." Finding of fact 7. The City contends that the ALJ implied that Martin County's general countywide ad valorem tax base will be negatively affected, but the evidence established that only the revenues attributable to municipal services taxing units will be reduced.

The City does not argue that finding of fact 7 is unsupported by competent substantial evidence, or that finding of fact 7 is incorrect. The City would prefer that the ALJ had given greater detail concerning the nature of the negative impact on the County's ad valorem tax base. Since finding of fact 7 is supported by competent substantial evidence, the Department cannot reject or modify finding of fact 7.

City of Stuart Exception is DENIED. Date of Adoption; DCA Exception 1

The Department contends that finding of fact 59 erroneously states that the City adopted a text amendment on December 7, 1999. The only record evidence concerning the date of adoption is that the amendment was adopted on December 8, 1999.

DCA Exception 1 is GRANTED by paragraph 1 A of the Order below.

"Best Available" Data: Joint Exception 3

The ALJ found that all of the Plan Amendments were supported by adequate data and analysis at the time of adoption. Finding of fact 96. The Petitioners contend that the FLUM amendments adopted in 1997 were not supported by adequate data and analysis, because some of the traffic data was collected after the date those amendments were adopted. The Petitioners point to the testimony of the City's transportation expert, Rick Hall, that some of the traffic counts and signal timing data were collected in the spring of 1998. Tr. 439 and 472.

As the ALJ stated in conclusions of law 212,

212. All data available to a local government in existence at the time of the adoption of a plan amendment may be relied upon to support an amendment in a de novo proceeding. Id. See also Zemel v. Lee County, et al., 15 FALR 2735 (Department of Community Affairs Final Order 1993). Analysis which may support an amendment,

however, need not be in existence at the time of the adoption of a plan amendment. Id.

Data which existed at the time of the adoption of a plan amendment may be subject to new or even first time analysis at the time of an administrative hearing challenging a plan amendment.

If the traffic data cited by the Petitioners was essential to support the 1997 FLUM amendments, the Petitioners' exception would be well taken.

However, it appears that the 1998 traffic data was not used to support the 1997 FLUM amendments. Mr. Hall's testimony indicates that he performed two traffic analyses for the City.

One was a traffic facilities analysis of the trips which could be generated by the annexed parcels and the impact those trips might have on the surrounding road system. This analysis used data on potential trip generation from-the Florida Department of Transportation and the County's MPO that was in existence when the 1997 FLUM amendments were adopted. Tr. 435. The second analysis was a level of service analysis of the entire City for the EAR-based amendment update of the City's Capital Improvements Element. Tr. 435-447. This second analysis utilized the 1998 traffic data, which was available prior to the adoption of the EARbased amendments to the Capital Improvements Element.

Joint Exception 3 is DENIED.

Data and Analysis for the Intergovernmental Coordination Element: Joint Exception 6

The ALJ determined that, "The evidence failed to prove that there were inadequate data and analysis concerning the effectiveness of existing intergovernmental coordination mechanisms." Finding of fact 134. The Petitioners contend that there is no evidence in the record regarding any data and analysis concerning the effectiveness of existing intergovernmental coordination mechanisms.

However, the record does include such data and analysis.

City of Stuart Exhibit 22 consists of correspondence between the City and the County concerning coordination of the FLUM amendments at issue in this case. Several witnesses testified concerning the effectiveness of the existing coordination mechanisms. Testimony of Robert Pennock, Kim Delaney and Dave Collier.

Joint Exception 6 is DENIED.

RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW

1998 Version of Stuart Comprehensive Plan: Joint Exception 10 Since these consolidated cases involve four sets of plan

amendments which were adopted by the City on different dates, the ALJ was faced with the question of choosing the version of the City's Plan to apply to each of the four sets of plan amendments. The ALJ chose to base his compliance recommendation on the version of the City's Plan as amended by all four of the plan amendment sets. Conclusions of law 193 to 196. Thus, the ALJ issued a single compliance recommendation for the Plan Amendments as a whole.

The Petitioners contend that the ALJ should have judged each set of plan amendments based upon the version of the City's Plan which was in effect prior to the adoption of the Plan Amendments. For example, the 1997 FLUM amendments could be found not in compliance because of a deficiency in the text of the City's Plan, even though that deficiency was cured by the later- adopted Remedial amendments or EAR-based amendments.

Formal administrative proceedings, in general, are not limited to circumstances which existed prior to the formal hearing.

An agency's free-form action is regarded as preliminary, irregardless of its tenor. The petition for a formal 120.57(1) hearing, as

in this case, commences a de novo proceeding.

§120.57 proceedings "are intended to formulate final agency action, not to review action taken earlier and preliminarily." Florida Department of Transportation v.

J.W.C. Co.. Inc., 396 So.2d 778, 785 (Fla.

1st DCA 1981) (citations omitted).

See also Moore v. HRS, 596 So.2d 759 (Fla. 1st DCA 1992), and Hamilton County Board of Countv Commissioners v. DER, 587 So.2d 1378, 1387 (Fla. 1st DCA 1991). Unlike the "best available data" requirement discussed above, the Act and Rule 9J-5, F.A.C., contain no limitation on considering changes in law after the adoption of a plan amendment.

If the Department were to accept the Petitioner's theory in this case, the Department would find the 1997 FLUM amendments not in compliance, and send the case to the Administration Commission. § 163.3184(9), F.S. The Administration Commission would issue a final order requiring the City to undertake remedial actions. §163.3184(11), F.S. However, the City has already adopted amendments which, in the opinion of the ALJ, cure any deficiencies which might have existed for the 1997 FLUM amendments. As the Department has previously concluded in Responsible Growth Management Coalition v. Department of Community Affairs, (Department of Community Affairs Final Order No. DCA 99-GM-012, January 26, 1999), there is no reason to direct a local government to take remedial action which it has already taken.

Joint Exception 10 is DENIED.

Planning for Annexation: Joint Exception 1 Throughout the administrative proceeding before the ALJ, the Petitioners contended that planning must precede annexation. The Petitioners argued that the FLUM amendments at issue in this case are not in compliance because the City's comprehensive plan does not address the need for annexation, and does not address intergovernmental coordination for annexations. The ALJ concluded that:

1. The Act or Chapter 171, Florida Statutes, do not require that planning take place before annexation. In fact, Chapter 171, Florida Statutes, seems to contemplate that planning may take place after annexation. If the area annexed was subject to a county land use plan and county zoning or subdivision regulations, these regulations remain in full force and effect until the municipality adopts a comprehensive plan

   amendment that includes the annexed area. Section 171.062(2), Florida Statutes. Thus, Chapter 171, Florida Statutes, specifically allows a municipality to annex property and remain subject to the county's growth management provisions until the municipality completes its planning pursuant to the Act.

   
   

2. Martin County and 1000 Friends have argued in their Joint Proposed Order that Section 163.3171, Florida Statutes, requires prior planning because this section of the Act requires that a municipality "exercise authority under this act for the total area under its jurisdiction." (Emphasis added). That is, however, exactly what the City did in this case: it exercised authority under the Act for the annexed parcels "under its jurisdiction." The

annexed parcels did not come under the City's jurisdiction until after they had been annexed. Conclusions of law 214 and 215.

The ALJ's conclusion of law is correct. Joint Exception 1 is DENIED.

Annexations after December 31.1999; DCA Exception 3

The ALJ stated in paragraph 143 that, "Nothing in the Act or the rules promulgated thereunder requires intergovernmental coordination on annexations." The Department's litigation staff asserts that this finding ignores §l63.3177(4)(a), F.S., which requires coordination with the comprehensive plans of adjacent jurisdictions, and § 163.3177(6)(h), F.S., which requires intergovernmental coordination for annexation not later than December 31, 1999.

Section 163.3177(4)(a), F.S., does not mention annexation, and therefore does not refute paragraph 143.

The ALJ recognized the §163.3177(6)( 1), F.S., planning requirements for annexation in conclusions of law 216, and 246 to

257. As the Recommended Order, the Department's Exception, and the City's Response to the Exception all state, the

§163.3177(6)(h), F.S., planning requirements for annexation are not required to be adopted until December 31, 1999. The ALJ's statement in finding of fact 143, which is written in the present tense, is correct.

DCA Exception 3 is DENIED.

Intergovernmental Coordination; Joint Exception 5

The ALJ concluded, and all parties apparently agree, that the Plan Amendments do not comply with the Intergovernmental Coordination Element (ICE) requirements of §163.31 77(6)(h), F.S. Finding of fact 145. The ALJ concluded that the City did not have to comply with the ICE requirements in § 163.3177(6)(h), F.S., because that statute sets a deadline for adoption of the ICE requirements by December 31, 1999, which has not yet passed. Findings of fact 146 to 148 and conclusions of law 246 to 254.

The Petitioners contend that the ALJ erred for two reasons.

First, the Petitioners argue that Rule 9J-40, F.A.C., required the City to comply with the ICE requirements by November, 1997. As the ALJ noted, the ICE requirements in chapter 163 have been revised by the Legislature on several occasions. Conclusions of law 247 to 249. Rule 9J-40 was adopted by the Department in 1994 in order to set a schedule for adoption of the ICE requirements by December 31, 1999. Rule 9J- 40, F.A.C. However, the 1997 Legislature amended the ICE requirements, and set a new deadline of December 31, 1992.

Conclusion of law 249. Based upon this new statutory timetable, the Department instructed local governments, including the City of Stuart, that the schedule set by Rule 9J-40 was no longer applicable. Conclusions of law 252 to 253. Since the final hearing in this case, the repeal of Rule 9J-40 has been completed by the Department. See, the Certification attached to the Department's Motion for Official Recognition, which was granted above. The ALJ correctly concluded that the City was not required to comply with the November, 1997, deadline set by Rule 9J-40, F.A.C.

Second, the Petitioners argue that since the City chose to submit ICE revisions early, as part of its EAR-based amendments, the City must comply with the ICE requirements presently in the statute. However, §163.31 77(6)(h)4., F.S., requires all jurisdictions to transmit ICE plan amendments, "so as to accomplish their adoption by December 31, 1999." The interpretation of the statute urged by the Petitioners ignores the plain language of the statute. As the ALJ stated, "Section 163.3177(6)(h), Florida Statutes, leaves the decision of whether a local government complies with Section 163.3177(6)(h), Florida Statutes, earlier than December 31, 1999 . . . solely to the discretion of the local government." Conclusion of law 256.

Joint Exception 5 is DENIED.

Intergovernmental Coordination of Plan Amendments: Joint Exception 8

The ALJ concluded that a local government's failure to follow the intergovernmental coordination policies in its own plan cannot be a basis for finding a plan amendment not in compliance. Conclusions of law 262 and 263. The Petitioners assert that FLUM amendments must be internally consistent with the rest of the plan, including the intergovernmental coordination element; and therefore, intergovernmental coordination is required before the City can adopt a FLUM amendment.

However, the ALJ determined, as a matter of fact, that the City of Stuart did follow the intergovernmental coordination requirements in the City Plan. Findings of fact 125 to 141, and conclusions of law 264 to 266. The Petitioners did not file exceptions to these paragraphs. Therefore, the ALJ's conclusion of law concerning the intergovernmental coordination policies in the City Plan is dicta; and it is not necessary for the Department to consider those conclusions of law.

Joint Exception 8 is DENIED. Demonstration of Need: Joint Exception 4

The ALJ found that, "Although the allocation of land resulted in an allocation of more commercial land than may be required during the life of the City's Plan, the evidence failed to prove that such a surplus results in any under allocation of land to other classifications." Finding of fact 105. The Petitioners contend that the ALJ misinterpreted the law when considering the City's needs analysis for the FLUM amendments in finding of fact 105. The Petitioners argue that "an analysis of the amount of land needed to accommodate the population," Rule 9J5.006(2)(c), F.A.C., "based upon the resident and seasonal population estimates and projections," Rule 9J-5.005(2)(e), F.A.C., is an essential requirement for plan amendments. The Petitioners further argue that a needs analysis should always focus on over-allocation, which is an indicator of urban sprawl, and that under-allocation cannot be a compliance issue.

The Department rejects the Petitioner's suggestion that under-allocation cannot be a compliance issue. The future land use element must be based upon the amount of land required to accommodate anticipated growth. §163.317 7(6)(a), F.S., and Rule 9J-5.006(2)(c), F.A.C.

The Petitioners seem to be arguing that since the FLUM amendments cause an over-allocation of commercial land in the City's plan, the FLUM amendments should be found not in compliance. However, over-allocation is only one factor in an

urban sprawl analysis. The Petitioner's suggestion that the FLUM amendments constitute urban sprawl overlooks the context of the FLUM amendments.

Once the parcels were annexed by the City, the City had a duty to amend its Plan to include the annexed parcels.

§163.3171(1) and §171.062(2), F.S. The annexed parcels are not located in a rural area; they are all located in the "Primary Urban Service Area" designated in the County's comprehensive plan, and are surrounded by existing urban development. Findings of fact 161 and 163. Most of the annexed property was designated commercial or industrial under the Martin County comprehensive plan, and the County's industrial category includes many of the same uses as in the City's commercial category. Finding of fact

103. The ALJ found that,

Under these circumstances, the City made the most reasonable planning decision by classifying the annexed property consistent with surrounding land uses and Martin County's prior land use designation of land use for the property. Finding of fact 103.

The ALJ further found that the possible intensity of use on the annexed parcels is less under the City's FLUM amendments than it was under the County's land use classifications. Finding of fact 110.

As the ALJ concluded,

This is not an instance of a local government's modifying the designated land use classification of a parcel from residential to commercial when there is no need for additional commercial property in the local government's jurisdiction and surrounding area. This is an instance of a local government essentially recognizing existing conditions and land use designations for property that once was under the jurisdiction of an abutting local government but has now come under its jurisdiction.

Conclusion of law 224.

Joint Exception 4 is DENIED. Indicators of Urban Sprawl: DCA Exception 4

The ALJ stated in finding of fact 162 that,

162. The indicators of urban sprawl listed in Rule 9J-5.006(5), Florida Administrative Code, do not apply to the annexed parcels when considered "within the context of features and characteristics unique to each locality."

The Department litigation staff contends that the ALJ erred by not applying the urban sprawl indicators listed in the rule. Rule 9J-5. 06(5)(d), F.A.C., requires that, "an evaluation shall be made whether any of these indicators is present in a plan or plan amendment."

However, when reading finding of fact 162 in the context of the other findings of fact and conclusions of law under the heading of "Urban Sprawl," it is clear that the ALJ did not conclude that the indicators were not applicable to the annexed parcels. Instead, it appears that the ALJ did consider the applicability of the indicators, and found that the indicators were absent. Findings of fact 161, 163 and 164, and conclusions of law 231 to 237.

DCA Exception 4 is DENIED.

The Future Annexation Area Map; Joint Exception 7

The City's EAR-based amendments included a Future Annexation Area Map, which is intended to serve as a limitation on annexations that the City would pursue. Finding of fact 171. The Petitioners assert that the ALJ must have found the Map in compliance, but that there is no data and analysis to support the Future Annexation Area Map. The ALJ did not state that he found the Map in compliance.

A future annexation area map is not required by the Act or by Rule 9J-5, F.A.C. The Map appears to be data or analysis of the City's intentions concerning future annexations. Local governments are not required to adopt data and analysis as part of the local comprehensive plan, but they may do so.

§163.3177(8), F.S., and Rule 9J-5.005(1)(c), F.A.C. Such data

and analysis, even if adopted into the plan, does not need to be supported by other data and analysis.

Even if the Future Annexation Map is considered to be an operative policy of the City Plan, rather than data or analysis, the Map still is not required by any provision of the Act or Rule 9J-5, F.A.C. Since the Map does not conflict or over-rule the portions of the City Plan that are required, the Map does not fail to meet the minimum criteria of the Act or the Rule.

Joint Exception 7 is DENIED.

Analysis of Traffic Impacts; Joint Exception 2 and DCA Exception 2

The ALJ concluded that,

119. A transportation analysis involves transportation planning for an extended period of time and not planning for individual parcels. Capital facilities and available capacity for a five-year period are looked at in a transportation analysis. Concurrency analyses, on the other hand, are performed on individual parcels of property at the time of proposed development of those parcels. Neither a transportation analysis nor a concurrency analysis is required when a local government designates a general land use classification for a parcel of land. Finding of fact 119.

All the parties agree with the ALJ that a concurrency analysis is not required when a local government designates a general land use classification for a parcel of land. However, all the parties also agree that a transportation analysis is required for such a plan amendment. All of the parties request modification of this conclusion of law.

Coordination of the several elements of the plan is a major objective of the planning process. §163.3177(2), F.S. A FLUM amendment changes the development pattern for the local government, and alters the traffic flow and quantity. The altered traffic flow must be accommodated by the transportation system. For that reason, the transportation element must, "coordinate the transportation system with the future land use map or map series and ensure that existing and proposed population densities, housing and employment patterns, and land uses are consistent with the transportation modes and services proposed to serve those areas." Rule 9J5.019(4)(b)2., F.A.C. A FLUM amendment must be supported by "an analysis of the availability of facilities and services as identified in the traffic circulation [or] transportation . . . elements." Rule 9J-5.006(2)(a), F.A.C.

A transportation analysis is necessary for the local government to achieve and maintain the adopted level of service (LOS) for the transportation system. A FLUM amendment which increases the amount of traffic generated by a parcel, or which sends the traffic in a different direction, will require different capital improvements to maintain the adopted LOS. The

local government must analyze, "the projected . . . system needs based upon future land use categories, including their densities and intensities of use as shown on the future land use map or map series, and the projected integrated transportation system."

Rule 9J-5.019(3)(f), F.A.C. The transportation needs thus identified form the basis for the capital facilities program in the capital improvements element. Rule 9J-5.016(2) & (4)(a),

F.S. The purpose of the capital facilities element is to consider the need for and location of public facilities which are necessary to implement the comprehensive plan.

§163.3177(3)(a)1., F.S., and Rule 9J-5.016, F.A.C.

Therefore, the Department respectfully disagrees with the ALJ's conclusion of law in paragraph 119, and concludes that a transportation analysis is required for FLUM amendments. This is a conclusion of law and an interpretation of agency rules over which the Department has substantive jurisdiction. The Department's substituted or modified conclusion of law and interpretation of agency rules is as or more reasonable than that which was rejected. The City did conduct a transportation facility capacity analysis for the FLUM amendments. Testimony of Rick Hall, Martin County Ex 10. The ALJ also found that,

121. Martin County's assertions concerning transportation concurrency were also refuted by the more accurate analysis performed by the City's expert engineer. Based upon his analysis, which was unrefuted by credible evidence, there is in fact no LOS deficiency not addressed by the City's Plan. Finding of fact 121.

Therefore, the Department's substituted conclusion of law does not cause the FLUM amendments to be not in compliance.

Joint Exception 2 and DCA Exception 2 are GRANTED by paragraph 1.B. of the Order below.

Unannexed Parcels: Joint Exception 11 and Motion to Remand

After the adoption of the Plan Amendments, but prior to the final hearing, the Circuit Court of the Nineteenth Judicial Circuit In And For Martin County, Florida, issued a Writ of Certiorari which ruled that the annexation of Parcels F 17 and F24 was invalid and illegal. City of Stuart Exhibit 10. The ALJ found that a portion of each Parcel had been "reannexed by the City [before the final hearing] to cure the defects found by the circuit court." Finding of fact 84.

On December 13, 1999, the Petitioners supplied the Department with a copy of a Circuit Court Order dated December 3, 1999, which invalidated the reannexation of Parcels F 17 and F24. The Petitioners also filed a Motion to Remand the case back to the ALJ in light of the Circuit Court Order. Joint Exception 11, and the Motion to Remand, contend that the City had no authority to adopt the FLUM amendments for Parcels F 17 and F24, because the Parcels had not been properly annexed into the City at the time the FLUM amendments were adopted. Therefore, the Petitioners argue, those FLUM amendments must be found not in compliance.

The FLUM amendments which apply to Parcels F 17 and F24 were adopted by City of Stuart Ordinance Numbers 1615-97, 1618- 97, 1620-97 and 1622-97. Finding of fact 77, and City of Stuart Exhibits 17, 18n and 18r.

The City's Response to the Motion to Remand stipulated that the reannexations of Parcels F 17 and F24 have been invalidated. The City further stipulated that the issue raised by Joint Exception 11 is a question of law, which can be resolved by the Department without remanding the case to the ALJ. Therefore, the Motion to Remand is DENIED.

Joint Exception 11 is GRANTED, and is discussed greater detail in the Determination of Noncompliance issued simultaneously with this final order. Since the defect raised by Joint Exception 11 does not apply to the other Plan Amendments, granting Joint Exception 11 does not affect the compliance of the remainder of the Plan Amendments. The Department has previously issued a Final Order and a Determination of Noncompliance for a single Recommended Order where one plan amendment could logically be treated separately from the remainder. Moehle v. City of Cocoa Beach, 20 FALR 3314 (DCA 1998).

ORDER

Upon review and consideration of the entire record of the proceeding, including the Recommended Order, the Exceptions to the Recommended Order, and the Response to Exceptions, it is hereby ordered that:

1. The findings of fact and conclusions of law in the Recommended Order are adopted, except:

   
   

   1. The date "December 7, 1997" in paragraph

      59 is changed to "December 8, 1997."

      
      

   2. The last sentence of paragraph 119 is modified as follows: "Neither"

      Only a transportation analysis not a currency analysis is required when a local government designates a general land use classification for a parcel of property."

      
      

2. The Administrative Law Judge's recommendation is accepted, except as related to the FLUM amendments adopted by City of Stuart Ordinance Numbers 1615-97, 1618-97, 1620-97 and 1622-97;

   
   

3. The Administrative Law Judge's recommendation concerning the FLUM amendments adopted by City of Stuart Ordinance Numbers 1615-97, 1618-97, 1620-97 and 1622-97 is submitted to the Administration Commission by the Determination of Noncompliance issued simultaneously with this Final Order; and

   
   

4. The subject Plan Amendments, except for the FLUM amendments adopted by City of Stuart Ordinance Numbers 1615-97, 1618-97, 1620-97 and 1622-97, are determined to be in compliance.

DONE AND ORDERED in Tallahassee, Florida, this 7th of January, 2000.

Steven M. Seibert, Secretary DEPARTMENT OF COMUNITY AFFAIRS

2555 Shumard Oaks Boulevard Tallahassee, FL 32399-2100

NOTICE OF RIGHTS

THE PARTIES ARE HEREBY NOTIFIED OF THEIR RIGHT TO SEEK JUDICIAL REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(B)(1)(C) AND 9.110.

TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(A). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES.

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this 7th day of January, 2000.

Paula Ford, Agency Clerk

U.S. Mail:

Gary K. Oldehoff, Esq. Martin County Attorney

2401 South East Monterey Road Stuart, FL 34996

Carl Coffin, Esq. City of Stuart

121 South West Flagler Avenue Stuart, FL 34994

Paul R. Bradshaw, Esq. Paul R. Bradshaw, P.A.. 1345 Dupont Road

Havana, FL 32333

Robert C. Apgar, Esq. Yeline Goin, Esq

902-A North Gadsden Street Tallahassee, FL 32303

Terrell Arline, Esq.

1000 Friends of Florida, Inc. 926 East Park Avenue Tallahassee, FL 32301

Tim B. Wright, Esq

Louis E. Lozeau, Jr., Esq.

Warner, Fox, Seeley, Dungey and Sweet, L.L.P. Post Office Drawer 6

Stuart, FL 34995

Hon. Larry J. Sartin Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-3060

Hand Delivery:

Shaw Stiller, Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100

Karen Brodeen, Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100

Hon. Larry J. Sartin Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-3060 Hand Delivery:

Shaw Stiller, Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100

Karen Brodeen, Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100

Docket for Case No: 98-000794GM

Orders for Case No: 98-000794GM