STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1000 FRIENDS OF FLORIDA, )

INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and THE CITY OF )

STUART, )

)

Respondents. )

_____________________________ )

Case No. 00-3041GM

RECOMMENDED ORDER

On October 9, 2000, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terrell K. Arline, Esquire

Legal Director

1000 Friends of Florida 926 East Park Avenue Post Office Box 5948

Tallahassee, Florida 32301

For Department: Shaw P. Stiller, Esquire

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

For City: Robert C. Apgar, Esquire

Yeline Goin, Esquire

320 Johnston Street Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

The issues in this case are whether certain amendments to the Intergovernmental Coordination Element (ICE) of the Comprehensive Plan of the City of Stuart (City), adopted by Ordinance No. 1702-99, are "in compliance," as defined in and required by the "Local Government Comprehensive Planning and Land Development Regulation Act," Chapter 163, Part II, Florida Statutes.

PRELIMINARY STATEMENT

After the City's adoption of the plan amendments, the Department of Community Affairs (DCA) gave notice of intent to find the amendments "in compliance." Petitioner filed a Petition for Formal Administrative Hearing on June 20, 2000.

DCA referred the matter to the Division of Administrative Hearings (DOAH). In accordance with the Joint Response to Initial Order, the case was set for hearing in Tallahassee on October 9, 2000.

On October 6, 2000, the parties filed a Prehearing Stipulation. By way of opening statement at final the hearing, Petitioner further narrowed the issues by focusing exclusively on certain reasons why two new policies in the amendments to the ICE--Policy A8.19 and Policy A8.20--were not "in compliance"; other contentions in the Petition for Formal Administrative Hearing were abandoned. Petitioner then called

Charles Pattison as an expert witness in comprehensive planning and had Petitioner's Exhibits 1, 2, and 3 admitted in evidence. The City called Robert Pennock as an expert witness in comprehensive planning, as well as the City's planner, Kimberly Delaney; the City also had its Exhibits 2, 6, and 7 admitted in evidence. DCA had DCA Exhibit 1 admitted in evidence and relied on the parties' stipulation to the timeliness and propriety of DCA's procedures for issuance of its notice of intent to find the plan amendments "in compliance."

After presentation of evidence, Petitioner and the City requested a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders (PROs). The Transcript was filed on November 2, 2000, but the City's Unopposed Motion for Extension of Time to File [PROs] was granted, and the time for filing PROs was extended to December 8, 2000. The City and DCA filed PROs on the due date; Petitioner filed its PRO on December 11, 2000, along with a Motion for Extension of Time to File PRO, which neither the City (which filed a statement of no objection) nor DCA has opposed. As a result, all the parties' PROs have been considered in reaching this Recommended Order.

FINDINGS OF FACT

1. Ordinance No. 1702-99 adopted by the City of Stuart, Florida, on April 10, 2000, amends the City's Comprehensive Plan by adding Policies A8.19 and A8.20. The purpose of Policies A8.19 and A8.20 was to comply with Section 163.3177(6)(h)1.a., Florida Statutes (2000). (All statutes cited in this Recommended Order are the Florida Statutes (2000).

2. The parenthetical preamble to Policies A8.19 and A8.20 states:

   Policies A8.19 and A8.20 are based on extensive meetings with Martin County staff during the preparation of this revision to the ICE Element as well as negotiations that occurred over the course of the past year and a half in conjunction with Stuart's annexation of parcels and related plan amendments. It is proposed that these policies and steps will help to resolve and avoid intergovernmental disputes as well as contribute to meeting the new requirements of Chapter 163. Additional changes were made in response to comments from Martin County.

   
   

3. Policy A8.19 provides:

   
   

   During the year 2000, the City will coordinate with Martin County to establish two Joint Planning Areas (JPAs).

   1. One JPA will establish an area where annexation is likely to occur during the planning period. Within this first JPA, joint planning shall occur on all relevant annexation issues identified by the City and county, including intergovernmental coordination; land use compatibility; natural resource protection; and provision

      of services, infrastructure and transportation facilities.

   2. The second JPA will be for general planning purposes. Infrastructure planning, recognition of service areas and mitigation of cross-jurisdictional impacts on infrastructure shall be addressed within the second JPA.

   3. Within two months after the effective date of this policy, the City will prepare and propose draft policies and areas for each of the JPAs. The City will request the active participation and input of County staff in this initial drafting phase. Joint Planning Areas must be incorporated into both the City and County comprehensive plans or through formal adoption of an official agreement between the City of Stuart and Martin County. Therefore, the City shall propose a special purpose, joint meeting(s) of the City and County LPAs to develop the specific policies and establish the specific areas for presentation to the respective governing boards for ultimate adoption into each comprehensive plan or by official agreement between the City of Stuart and Martin County after a public hearing.

4. Policy A8.20 provides:

   
   

   During the year 2000, the City shall initiate discussions with Martin County to establish a joint procedure to facilitate future annexations into the City. This joint procedure will include:

   1. Provision of early notice to the county of the possibility of annexation.

   2. Use of joint plans prepared for the JPA's established under Policy A8.19 to the extent they apply to the particular annexation area.

   3. Provision of county review of the possible impacts of the potential annexation and intergovernmental assessment of mitigation options.

   4. Consideration of mitigation options by the City.

5. It is possible that the City and County could establish the "joint procedure to facilitate future annexations" under Policy A8.20 through formal adoption of an official agreement between the City and Martin County, instead of amendment to their comprehensive plans (similar to the explicit procedure referred to in Policy A8.19.) In addition, Policy A8.20 does not explicitly limit the City and County to the items described in the policy for inclusion in the joint procedure; additional items could be added to the joint procedure.

6. Prior to adoption of Policies A8.19 and A8.20, the City and County entered into interlocal agreements for joint infrastructure service areas. It cannot be ascertained at this time whether those joint infrastructure service areas will be within one of the two JPAs to be established under Policy A8.19.

7. Another of the policies adopted through Ordinance No.

   
   

   1702-99, namely Policy A7.2, provides:

   
   

   The City shall consider for annexation only those parcels of land which may be lawfully annexed pursuant to Chapter 171, Florida Statutes.

   
   

8. Petitioner did not allege in its Petition for Formal Administrative Hearing that the phrase "area where annexations are likely to occur during the planning period" in Policy A8.19(1) was vague. Petitioner mentioned the issue in the

   Brief General Statement of [Its] Position in the parties' Prehearing Stipulation, but the issue was omitted from that document's joint statement of "the mixed issues of law and fact which remain to be litigated."

   CONCLUSIONS OF LAW

   
   

9. Section 163.3184(9), Florida Statutes, provides that, in this proceeding, the subject comprehensive plan amendments "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." In this case, Petitioner bears the burden of proving, beyond fair debate, that Policies A8.19 and A8.20 are not "in compliance."

   "Fairly Debatable" Standard

   
   

10. In Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), the Court equated the "fairly debatable" standard under Section 163.3184(9) with the "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity, stating:

    The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.

    
    

    The Yusem court also quoted from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953):

    An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make

    sense or point to a logical deduction that in no way involves its constitutional validity.

    
    

    However, in deciding whether planning decisions are fairly debatable, statutory and rule compliance criteria also must be ascertained and applied.

    "In Compliance" Definition

    
    

11. Under Section 163.3184(1)(b), "in compliance" means "consistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with this part and with the principles for guiding development in designated areas of critical state concern."

    Internal Consistency Argument

    
    

12. Although omitted from Petitioner's PRO, Petitioner argued at final hearing that neither Policy A8.19 nor Policy A8.20 is "in compliance" because both are internally inconsistent with Policy A7.2. See Section 163.3177(2). To the contrary, Policy A8.19 and Policy A8.20 clearly are not inconsistent with Policy A7.2. Instead, this argument actually just begs Petitioner's other arguments as to why annexations permitted under Policy A8.19 and Policy A8.20

    allegedly are unlawful and why the policies therefore are not "in compliance."

    Pertinent "Compliance" Requirements

    
    

13. Section 163.3177(6)(h)1. requires, in pertinent part, that the ICE include:

    An intergovernmental coordination element showing relationships and stating principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan with the plans of school boards and other units of local government providing services but not having regulatory authority over the use of land, with the comprehensive plans of adjacent municipalities, the county, adjacent counties, or the region, and with the state comprehensive plan, as the case may require and as such adopted plans or plans in preparation may exist. This element of the local comprehensive plan shall demonstrate consideration of the particular effects of the local plan, when adopted, upon the development of adjacent municipalities, the county, adjacent counties, or the region, or upon the state comprehensive plan, as the case may require.

    
    

    a. The intergovernmental coordination element shall provide for procedures to identify and implement joint planning areas, especially for the purpose of annexation, municipal incorporation, and joint infrastructure service areas.

    
    

    Section 163.3177(6)(h)4. requires of adoption plan amendments implementing these requirements by December 31, 1999, but no party has raised the failure to meet the deadline as being a reason why the policies in question are not "in compliance."

14. Section 163.3177(10)(b) states in pertinent part: "Intergovernmental coordination, as set forth in paragraph (6)(h), shall be utilized to the extent required to carry out the provisions of chapter 9J-5, Florida Administrative Code."

15. Florida Administrative Code Rule 9J-5.015 states in pertinent part: "It is the purpose of the intergovernmental coordination element to . . . determine and respond to the needs for coordination processes and procedures with adjacent local governments . . .." (All rules cited are Florida Administrative Code rules.)

16. Rule 9J5-5.015(3)(c)4. requires the intergovernmental coordination element (ICE) of the comprehensive plan to "contain one or more policies for each objective which address programs, activities, or procedures for: [t]he coordination of planning activities mandated by the various elements of the comprehensive plan with other local governments . . . [and] [r]esolving annexation issues

    . . .." (Emphasis added.)

    
    

    Policy A8.19 Arguments

    
    

17. Petitioner makes essentially four arguments why Policy A8.19 is not "in compliance." Petitioner's first argument is that the policy itself does not identify the Joint Planning Areas (JPAs), especially the first (annexation) JPA, either by mapping or some other similarly definitive means.

    Petitioner's second (and related) argument is that paragraph

    
    

    (3) of the policy permits deferral of identification (as well as implementation) of the JPAs to interlocal agreements between the City and County, in lieu of incorporation in the comprehensive plans of the City and County. Petitioner's third argument is that, by requiring establishment of the annexation JPA only in areas "where annexation is likely to occur during the planning period," Policy A8.19 permits annexations to occur outside that JPA. Finally, Petitioner argues that the phrase, "where annexation is likely to occur," is too vague.

    Petitioner's First Two Arguments

    
    

18. Petitioner's first two arguments are interwoven and difficult to unravel and understand independent from one another; the same can be said of the counter-arguments of DCA and the City. For that reason, it is concluded that these disputed issues are best considered together as a single argument.

19. Petitioner initially seemed to argue that Section 163.3177(6)(h)1.a. required the JPAs to be identified in Policy A8.19 itself. Ultimately, at the end of its PRO, Petitioner conceded that, even if Policy A8.19 deferred identification and implementation of the JPAs, the policy still would be "in compliance" if not for the option in

    paragraph (3) of the policy for subsequent identification and implementation through interlocal agreement, in lieu of incorporation in the comprehensive plans of the City and County.

20. In support of its argument, Petitioner cited other parts of Chapter 163 containing requirements for identification of areas or places. See, e.g., Section 163.3177(6)(a) and (d). Petitioner also cited the Final Order, Dept. of Community Affairs, et al., v. Collier County, et al., 99 E.R.F.A.L.R. 259 (Admin. Comm'n, June 22, 1999)(the Collier County Final Order), adopting Recommended Order, DOAH Case No. 98-0324GM, entered March 19, 1999. In the Collier County Final Order, the EAR (Evaluation and Appraisal Report)- based comprehensive plan amendments in issue failed to map or otherwise definitively identify "land use categories in which public schools are an allowable use" notwithstanding the requirement in Section 163.3177(6)(a) that the Future Land Use Element "clearly identify" those land use categories.

    Instead, identification of those land use categories was deferred to interlocal agreement between the County and School Board. As stated in Finding 17 of the Recommended Order in that case:

    In place of regulating school uses like other land uses--i.e., in the Plan--the County instead has elected to resolve school-siting issues through another means-

    -i.e., an Interlocal Agreement, which is mentioned in Sanitary Sewer Policy 1.2.6. However, the use of the Interlocal Agreement, rather than the Plan, attenuates public participation, precludes plan challenges by the public or DCA under Chapters 163 and 9J-5, and fails to ensure that the two parties will site schools consistent with the minimum criteria of Chapters 163 and 9J-5.

    
    

21. Petitioner also cites Section 163.3194(4)(b), which states: "It is the intent of this act [i.e., Part II of Chapter 163] that the comprehensive plan set general guidelines and principles concerning its purposes and contents and that this act shall be construed broadly to accomplish its stated purposes and objectives." Petitioner argues that the "purposes and objectives" of Part II of Chapter 163 cannot be met if the JPAs are not identified and implemented either in Policy A8.19 itself or through incorporation in the comprehensive plans of the City and County.

22. Petitioner also points to the rule of statutory interpretation that related statutes should be read in pari materia and harmonized so that proper effect is given to all related statutes. See Golf Channel, Inc. v. Martin Jenkins, 752 So. 2d 561, 564 (Fla. 2000); Dept. of Revenue v. Stafford, 646 So. 2d 803 (Fla. 4th DCA 1994). Petitioner argues that the best way to comply with those rules of statutory construction would be to require the JPAs to be identified and implemented either in Policy A8.19 itself or through

    incorporation in the comprehensive plans of the City and County.

23. DCA and the City contend that the language of Section 163.3177(6)(h)1.a. is clear and unambiguous in only requiring "procedures to identify and implement joint planning areas." (Emphasis added.) In arguing that identification and implementation of the JPAs need not be incorporated in either Policy A8.19 itself or in a subsequent amendment to the comprehensive plans of the City and County, they cite to other basic rules of statutory interpretation. "[W]hen the language of a statute is unambiguous and conveys a clear and ordinary meaning, there is no need to resort to other rules of statutory construction." Starr Tyme, Inc. v. Cohen, 659

    So. 2d 1064, 1067 (Fla. 1995). In those instances, the language of a statute should be given its plain and ordinary meaning. See Smith v. Crawford, 645 So. 2d 513 (Fla. 1st DCA 1994). Statutory language is not assumed to be superfluous; meaning should be given to all words and phrases contained in a statute. See Terrinoni v. Westward Ho!, 418 So. 2d 1143 (Fla. 1st DCA 1982). Similarly, courts may not insert words or phrases in a statute that to all appearances were not in the mind of the legislature when the law was enacted. See Rebich v. Burdine's and Liberty Mut. Ins. Co., 417 So. 2d 284 (Fla. 1st DCA 1982).

24. DCA and the City also argue that Petitioner fails to take into account Section 163.3171, which they assert specifically authorizes the interlocal agreement option in Policy A8.19(3).

25. Section 163.3171 provides in pertinent part:

    
    

    1. A municipality shall exercise authority under this act [i.e., Part II of Chapter 163, which is entitled the "Local Government Comprehensive Planning and Land Development Regulation Act"] for the total area under its jurisdiction.

       Unincorporated areas adjacent to incorporated municipalities may be included in the area of municipal jurisdiction for the purposes of this act if the governing bodies of the municipality and the county in which the area is located agree on the boundaries of such additional areas, on procedures for joint action in the preparation and adoption of the comprehensive plan, on procedures for the administration of land development regulations or the land development code applicable thereto, and on the manner of representation on any joint body or instrument that may be created under the joint agreement. Such joint agreement shall be formally stated and approved in appropriate official action by the governing bodies involved.

       * * *

       (3) Combinations of municipalities within a county, or counties, or an incorporated municipality or municipalities and a county or counties, or an incorporated municipality or municipalities and portions of a county or counties may jointly exercise the powers granted under the provisions of this act upon formal adoption of an official agreement by the governing bodies involved pursuant to law. No such official agreement shall be adopted by the governing bodies involved until a

       public hearing on the subject with public notice has been held by each governing body involved. The general administration of any joint agreement shall be governed by the provisions of s.163.01 except that when there is conflict with this act the provisions of this act shall govern.

       
       

26. Harmonizing all of these related statutes, it is concluded that Section 163.3171(1) does authorize the use of interlocal agreements to identify and implement joint planning areas, but only to the extent of designating the portions of the unincorporated county in which joint city/county planning will take place and establishing "procedures for joint action in the preparation and adoption of the comprehensive plan, on procedures for the administration of land development regulations or the land development code applicable thereto, and on the manner of representation on any joint body or instrument that may be created under the joint agreement." Similarly, Section 163.3171(3) only authorizes the City and County to "jointly exercise the powers granted under the provisions of this act [i.e., Part II of Chapter 163] upon [i.e., after] formal adoption of an official agreement by the governing bodies involved pursuant to law." (Emphasis and bracketed explanation added.) This provision was not intended to authorize subsequent planning within the jurisdiction of a joint planning area to be conducted through interlocal agreement. To the contrary, the last sentence of Section

163.3171(3) would require such joint planning to meet the ordinary requirements of "this act," i.e., Part II of Chapter

163. See Pinellas County v. City of Gulfport, 458 So. 2d 436, 438 (Fla. 2d DCA 1984). Cf. also Rules 9J-5.005(7)(i), 9J- 11.004(2)(a)4.-5., and 9J-11.006(1)(a)9. and (b).

1. Applying these statutory interpretations to this case, Policy A8.19(3) does not appear to limit the JPA interlocal agreements to mere identification and implementation of the JPAs, with subsequent joint planning policies to be adopted in accordance with the ordinary requirements of Part II of Chapter 163. To the contrary, the policy appears to authorize adoption of joint planning policies through interlocal agreement(s), in lieu of incorporation in the comprehensive plans of the City and County. To that extent, Policy A8.19(3) is not "in compliance."

   "Where Annexations Are Likely to Occur" Arguments

   
   

2. Petitioner's next argument is that Policy A8.19 is not "in compliance" because, by requiring establishment of the first (annexation) JPA only in the "area where annexation is likely to occur during the planning period," Policy A8.19 permits annexations to occur outside the JPA. Petitioner also argues that the language used to describe the annexation JPA

   is too vague to be "in compliance" with Sections 163.3177(6)(h)1.a. and 163.3171.

3. As for the "vagueness" issue, Petitioner never raised the issue in its Petition for Formal Administrative Hearing. Although mentioned in the Prehearing Stipulation, the issue was omitted from that document's joint statement of "the mixed issues of law and fact which remain to be litigated." For those reasons, the issue was waived. See Final Order, Heartland Environmental Council v. Dept. of Community Affairs, 96 E.R.F.A.L.R. 185 (Dept. Comm. Affairs, Nov. 25, 1996), adopting in part and modifying Recommended Order, DOAH Case No. 94-2095GM, entered October 15, 1996.

4. If the "vagueness" issue were considered, it would be concluded that Petitioner did not prove beyond fair debate that Policy A8.19 is not "in compliance" because it is too vague. Section 163.3177(6)(h)1. requires the City to adopt an "intergovernmental coordination element showing relationships and stating principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan" with the plan of Martin County. It is concluded that the phrase "area where annexations are likely to occur during the planning period" is clear enough to guide establishment of the annexation JPA.

5. Petitioner's "vagueness" argument is tied to and dependent on what appears to be Petitioner's main argument regarding the "likely to occur" language--that Policy A8.19 is not "in compliance" because it does not require the annexation JPA to include all areas where annexations could possibly occur, so that annexations outside the annexation JPA would be possible.

6. Annexation is controlled by Chapter 171 of the Florida Statutes. Chapter 171 authorizes municipalities to annex land under the terms of the statute. See SCA Services of Florida, Inc. v. City of Tallahassee, 418 So. 2d 1148, 1150 (Fla. 1st DCA 1982), rev. denied, 427 So. 2d 737 (Fla. 1983). In effect, Petitioner's argument is that Section 163.3177(6)(h)1.a. supersedes and controls to the extent of conflict with Chapter 171 and that Section 163.3177(6)(h)1.a. requires joint planning before all annexations.

7. If Petitioner's argument were accepted, the City would be required to predict with absolute certainty where all annexations, including voluntary annexations, will occur.

   Such predictive ability would be difficult, if not practically impossible. Without the perfect ability to make such predictions, the only way to be assured that all annexations will occur within the annexation JPA would be for the JPA to cover the entire unincorporated county. That could require

   unnecessary and wasteful planning. It is concluded that it is unreasonable to interpret Section 163.3177(6)(h)1.a. so as to require possibly illogical and wasteful planning.

8. It also is noted that Section 163.3177(6)(h)1.a. addresses municipal incorporation and joint infrastructure service areas, as well as annexation. Yet, as Petitioner agrees, municipal incorporation clearly is authorized outside a JPA. Similarly, the City and County already have entered into interlocal agreements for joint infrastructure service areas. Although it cannot be ascertained at this time whether those joint infrastructure service areas will be within either of the two JPAs to be established under Policy A8.19, Petitioner does not contend that they are illegal. Notwithstanding Petitioner's arguments to the contrary, it is logical to conclude that annexations under Chapter 171 also are not illegal because they are outside the annexation JPA in whole or in part.

9. Petitioner also cites Section 163.3211, which is entitled "Conflict with other statutes," and which states:

   Where this act may be in conflict with any other provision or provisions of law relating to local governments having authority to regulate the development of land, the provisions of this act shall govern unless the provisions of this act are met or exceeded by such other provision or provisions of law relating to local government, including land development regulations adopted pursuant to chapter 125

   or chapter 166. Nothing in this act is intended to withdraw or diminish any legal powers or responsibilities of state agencies or change any requirement of existing law that local regulations comply with state standards or rules.

   
   

   (Emphasis added.) But, as emphasized language suggests, this statute does not apply to Chapter 171, which deals with annexations, not regulation of land development.

10. Finally, it is noted that Policy A8.19 only provides for the establishment of the annexation JPA. It does not annex land or expressly authorize annexation outside the annexation JPA. If land outside the annexation JPA is annexed in the future, a petition for certiorari review could be filed under Section 171.081 to assert a claim that such an annexation "does not meet the requirements established for annexation."

11. For these reasons, it is concluded that the language in Policy A8.19 providing for the establishment of the annexation JPA in the "area where annexation is likely to occur during the planning period" is "in compliance."

    Policy A8.20

    
    

12. The first part of Petitioner's argument that Policy A8.20 is not "in compliance" is based on the policy's requirement that the joint procedure to be adopted by the City and County under the policy use the "joint plans prepared for the JPA's established under Policy A8.19 to the extent they

    apply to the particular annexation area." This part of Petitioner's argument on Policy A8.20 is primarily based on Policy A8.19's failure to require the annexation JPA to include all areas where annexations could possibly occur.

    This argument already has been rejected in Conclusions of Law 37, supra. However, to the extent that Policy A8.20 relies on Policy A8.19, Policy A8.20 is not "in compliance" to the extent that Policy A8.19 is not. See Conclusions of Law 27, supra.

13. Petitioner also argues that, while Policy A8.20 requires establishment of "a joint procedure to facilitate annexations," to include four listed items, it does not prohibit the joint procedure from including additional items and does not expressly require incorporation of the joint procedure in a comprehensive plan amendment.

14. It must be kept in mind that, unlike Policy A8.19, Policy A8.20 was not adopted under Section 163.3171 to meet the requirements of Section 163.3177(6)(h)1.a.--i.e., it does not provide for establishment of a joint planning area, and its operation is not limited to the jurisdiction of the JPAs addressed in Policy A8.19 (in particular, the annexation JPA.) As a result, Sections 163.3171 and 163. 3177(6)(h)1.a. do not operate to require incorporation of the joint procedure to be

    adopted in response to Policy A8.20 in the comprehensive plans of the City and County.

15. In addition, Section 163.3177(6)(h)1. only requires the ICE to "[show] relationships and [state] principles and guidelines to be used in the accomplishment of coordination of the adopted comprehensive plan" with the plan of Martin County. Rule 9J5-5.015(3)(c)4. requires the intergovernmental coordination element (ICE) of the comprehensive plan to "contain one or more policies for each objective which address programs, activities, or procedures for: [t]he coordination of planning activities mandated by the various elements of the comprehensive plan with other local governments . . . [and] [r]esolving annexation issues . . .." (Emphasis added.) ICE policies are adequate if they meet these statutory and rule criteria, so as to make it possible to determine whether subsequent coordination efforts are consistent with the policies. Part II of Chapter 163 does not require all intergovernmental coordination to be accomplished through comprehensive plan amendments; nor does it prohibit additional coordination beyond what is required by ICE policies. For these reasons, it is concluded that Policy A8.20 is "in compliance," except to the extent of its reliance on Policy A8.19.

RECOMMENDATION

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

RECOMMENDED that, after further proceedings in accordance with Section 163.3184(9)(b), the Department of Community Affairs:

1. Determine Policy A8.19 not "in compliance";

   
   

2. Determine Policy A8.20 not "in compliance" to the extent that it relies on Policy A8.19; and

3. Submit this Recommended Order to the Administration Commission to take final action and, in accordance with Section 163.3184(11)(a), specify as remedial action that the City of Stuart amend Policy A8.19 to require joint planning policies for the JPAs to be adopted by incorporation in the comprehensive plans of the City and Martin County.

DONE AND ENTERED this 11th day of January, 2001, in Tallahassee, Leon County, Florida.

_____________________________

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearing this 11th day of January, 2001.

COPIES FURNISHED:

Terrell K. Arline, Esquire Legal Director

1000 Friends of Florida 926 East Park Avenue Post Office Box 5948

Tallahassee, Florida 32301

Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Robert C. Apgar, Esquire Yeline Goin, Esquire

320 Johnston Street Tallahassee, Florida 32303

Steven M. Seibert, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Cari L. Roth, General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100

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: 00-003041GM

Orders for Case No: 00-003041GM