TE 1-03 Final Order No. DCA03-GM-264 COSTP 29 PHO Q5 STATE OF FLORIDA ; . DEPARTMENT OF COMMUNITY AFFAIRS , | DONNA MELZER and MARTIN COUNTY CONSERVATION ALLIANCE, DY Petitioners, DOAH Case No. 02-1014GM V. DCA Case No. DCA03-GM-264 MARTIN COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS, va) CAS COS Respondents, MARTIN COUNTY SCHOOL BOARD and CITY OF STUART, Intervenors. / 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 a challenge to comprehensive plan amendments adopted by Martin County Ordinance No. 606. The Department published a notice of intent to find the amendments “in compliance,” as defined in §163.3184(1)(b), Fla. Stat. (2002); and the Petitioners challenged the amendments as authorized by §163.3184(9)(a), Fla. Stat. (2002). A Final Order No. DCA03-GM-264 formal hearing was conducted by Administrative Law Judge (“ALJ”) Charles A. Stampelos 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 the amendments are in compliance. ROLE OF THE DEPARTMENT Throughout the pendency of the formal administrative proceedings, the Department’s litigation staff contended that the Martin County 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. 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. Based upon that review, the Secretary of the Department must either enter a final order consistent with the ALIJ’s recommendations finding the Rural Fringe Amendments in compliance, or determine that the Amendments are not in compliance and submit the Recommended Order to the Administration Commission for final agency action. § 163.3184(9)(b), Fla. Stat. (2002). Having reviewed the entire record, the Secretary accepts the recommendation of the Administrative Law Judge as to the disposition of this case. -2- Final Order No. DCA03-GM-264 STANDARD OF REVIEW OF RECOMMENDED ORDER AND EXCEPTIONS The Administrative Procedure Act contemplates that the Department will adopt the Recommended Order except under certain limited circumstances. The Department has only limited authority to reject or modify the ALJ’s findings of fact. 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. Section 120.57(1)(), Fla. Stat. (2002) The Department cannot reweigh the evidence considered by the ALJ, and cannot reject findin: gs of fact made by the ALJ if those findings of fact are supported by competent substantial evidence in the record. Heifetz v. Dept. of Bus. Reg., 475 So.2d 1277 (Fla. Ist DCA 1985); and Bay County School Bd. v. Bryan, 679 So.2d 1246 (Fla. 1st DCA 1996), construing a provision substantially similar to Section 120.57(1)(), Fla. Stat. (2002). See also, Pillsbury v. Dept. of Health and Rehabilitative Services, 744 So. 2d 1040 (Fla. 2d DCA 1999). The Department may reject or modify the ALJ’s conclusions of law or interpretation of administrative rules, but only those, _.. 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 3. Final Order No. DCA03-GM-264 substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Section 120.57(1)(), Fila. Stat. (2002) The label assigned to a statement is not dispositive as to whether it is a conclusion of law or a finding of fact. Kinney v. Dept. of State, 501 So.2d 1277 (Fla. 5th DCA 1987). Conclusions of law, even though stated in the findings of fact section of a recommended order, may be considered under the same standard as any other conclusion of law. THE PLAN AMENDMENTS Martin County adopted two Plan Amendments in Ordinance No. 606 that are at issue, 01-11, pertaining to school siting, and 01-12, pertaining to public facilities. The ~ school siting plan amendment creates a process for choosing new school sites that balances federal and state guidelines for school siting, proximity to existing or planned population centers, maximization of the use of capital facilities such as transportation, potable water and waste water facilities, proximity to complementary uses such as parks and libraries, and avoidance of negative impacts on wetlands and upland habitat. Finding of fact 34. The public facilities plan amendment waives certain wetland and upland habitat protection policies for stormwater projects, including those constructed as part of the Comprehensive Everglades Restoration Plan. Finding of fact 96 - 98 & 100. The public facilities plan amendment also creates an alternative method for siting certain public facilities that balances project specific requirements, impacts on environmental resources, future land use map designation, and relative cost of alternative sites. Finding of fact 99 & 101. -4- Final Order No. DCA03-GM-264 MOTION TO STRIKE CORRECTIONS TO EXCEPTIONS The Recommended Order was issued by the Division of Administrative Hearings on July 1, 2003. Exceptions were due 15 days later (July 16), responses to exceptions were due 10 days thereafter (July 26), and the Department’s final order was due 90 days after the issuance of the Recommended Order (September 29). §120.569(2)(1), Fla. Stat. (2002), and Fla. R. Admin. P. 28-106.217. The Petitioners filed an “Agreed Upon Motion To Extend Dates For Filing Exceptions To Recommended Order And For Responses To Exceptions,” which requested extension of the time to file exception from July 16 to July 30, and for filing responses to exceptions to August 22. The Agreed Upon Motion did not agree to extend the Departments deadline for issuance of the final order, and at least one party indicated verbally that the Department’s deadline would not be waived. The Department issued an Order Denying Motion To Extend Time For Filing Exceptions, stating that, “Since the parties believe that the case [is] so complicated that they each need additional time to file exceptions and responses to exceptions, it is evident that the Department will need the full time alloted by the Administrative Procedure Act to review the entire record (three cardboard boxes), and rule upon the exceptions.” The Petitioners filed 46 pages of exceptions on July 16. The Petitioners then filed anine page “Corrections To Petitioners’ Exceptions To Recommended Order” on July 22. Respondent Martin County and Intervenor Martin County School Board filed a Motion To Strike the Corrections on the grounds that the Corrections were not authorized by any rule of procedure or agency practice, were the equivalent of late filed exceptions, and were filed without leave of the agency or consent of the other parties. -5- Final Order No. DCA03-GM-264 The Corrections propose to add a few sentences to the previously filed Exceptions, and to clarify those exceptions. The Corrections do not add any new issues that were not raised in the Exceptions. Certainly the better practice, where a motion for a lengthy extension of time has been rejected, would be to file a renewed motion requesting a more reasonable extension. In this case, where the Corrections do not broaden the issues raised by the Exceptions, the Department declines to strike the Corrections. The Motion to Strike Corrections is DENIED. RULINGS ON EXCEPTIONS The Petitioners filed exceptions to the Recommended Order. Respondent Martin County and Intervenor Martin County School Board filed a response to the Petitioners’ Exceptions, and the Department’s litigation staff joined in the response. The County and the School Board also filed exceptions. County and School Board Exceptions Finding of fact 31 The second sentence of finding of fact 31 states, “By letter of December 7, 2001, Secretary Seibert was advised of the Department’s support for the School Siting and Public Facilities Plan Amendments.” The County and the School Board suggest that the letter was really from Secretary Seibert and advised the County of the Department’s support. The County and the School Board assert that the sentence is not supported by competent, substantial evidence and should be stricken. Although their suggestion that the letter was really from Secretary Seibert to the County seems reasonable, the County and the School Board did not cite to the record to 6- Final Order No. DCA03-GM-264 support their suggestion, and the undersigned could not find a copy of the letter in the record. Therefore, the County and the School Board are correct that the second sentence is not supported by competent, substantial evidence. County and School Board Exception to Finding of Fact 31 is GRANTED by paragraph 1.A. of the Order below. Conclusion of law 203 The County and the School Board assert that the last sentence of conclusion of law 203 might be misinterpreted to mean that the evaluation and appraisal process does not involve any historical evaluation. In the context of the preceding and succeeding paragraphs, such an misinterpretation is unlikely, especially since this case does not involve an evaluation and appraisal report, or plan amendments based on such a report. County and School Board Exception to Conclusion of Law 203 is DENIED. Petitioners’ Exceptions Adoption by Reference The Exceptions state that, “The Petitioners adopt and incorporate by reference their Proposed Recommended Orders and accompanying Memorandum of Law filed in this case.” The significance of this statement is not clear. The referenced documents were submitted to the ALJ, and were intended to influence the ALJ’s drafting of the Recommended Order. The Administrative Procedure Act and the Uniform Rules of Administrative Procedure provide exceptions as the procedure for objecting to the Recommended Order. -7- Final Order No. DCA03-GM-264 To the extent that the Petitioners are attempting to raise exceptions by reference to documents filed with the ALJ that are not raised in the Exceptions, those referenced exceptions are DENIED. Prior Settlement Agreement A compliance case involving the Martin County comprehensive plan was resolved by execution of a Stipulated Settlement Agreement in 1990 that resulted in numerous remedial plan amendments. Finding of fact 177. The Petitioners contend that the plan amendments at issue in this case are inconsistent with the 1990 Stipulated Settlement Agreement. The ALJ concluded that consistency with the Stipulated Settlement Agreement is not required. The Petitioners’ theory is not as reasonable as the ALJ’s conclusion of law. Consistency with a prior settlement agreement is not within the compliance criteria set forth in section 163.3184(1)(b), Florida Statutes (2002). The cases which the Petitioners cite, Hobe Sound Citizens Alliance, Inc. v. Martin County, DOAH Case No. 99-4554GM (DOAH Feb. 27, 2001) (2001 DOAH Lexis 2882), and DCA v. Lee County, 18 FALR 4040 (Admin. Comm. 1996), do not hold that a plan amendment must be consistent with a settlement agreement from a prior case. An ALJ previously considered a similar theory regarding consistency of a plan amendment with a final order of the Administration Commission. That ALJ determined that a plan amendment need not be consistent with a previously issued order of the Administration Commission, since that is not a statutory criterion for determining whether a plan amendment is in compliance. Geraci v. DCA, 21 FALR 1950 (DCA 1999), aff'd., 754 So.2d 35 (Fla. 2d DCA 1999). The purpose of an Administration Commission order -8- Final Order No. DCA03-GM-264 is to ensure that comprehensive plans and plan amendments are in compliance. The local government may accomplish that purpose in a manner different from that identified in the order. Id. The reasoning of Geraci is equally applicable to prior settlement agreements. Petitioners’ Exceptions 32 and 70 are DENIED. Creation of an Express Exception or Waiver The ALJ concluded that, “If an amendment expressly creates an exception or waiver to a general rule set forth in the plan, it does not create an internal inconsistency.” Conclusion of law 195. The Petitioners assert that the plan amendments create “blanket waivers of unidentified Comprehensive Plan policies [which] are not authorized by the statutory words nor statutory intent.” Petitioners’ Exception 22. The plan amendments at issue in this proceeding create new provisions for the siting of public schools and public facilities. Public facilities and public schools are development that must be subject to the local comprehensive plan. §163.3164(6), §163.3194(1)(a), and §380.04, Fla. Stat. (2002). However, a local comprehensive plan must address public facilities and public schools differently than ordinary development, such as residential subdivisions or shopping centers. The local comprehensive plan must include a General Sanitary Sewer, Solid Waste, Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Element which indicates ways to provide public facilities. §163.3177(6)(c), Fla. Stat. (2002). The local comprehensive plan must coordinate with the School Board’s plans for the provision of public schools. §163.3177(6)(a) & (h), Fla. Stat. (2002). The local comprehensive plan may include a public buildings element for police stations, fire stations, libraries, and other public buildings. §163.3177(7)(e), Fla. Stat. (2002). The capital improvements -9- Final Order No. DCA03-GM-264 element must consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities. §163.3177(3)(a), Fla. Stat. (2002). The comprehensive plans are intended to “facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, housing, and other requirements and services...” §163.3161(3), Fla. Stat. (2002). As the ALJ stated, public facilities must be built to implement the goals, objectives and policies of the comprehensive plan, and to provide the necessary services to the citizens of Martin County. Finding of fact 102. The ALJ found that, “at times, one or more specific requirements of the Plan have inhibited the placement of public facilities where the facility would best serve the overall public good.” Finding of fact 102. The ALJ further found that school siting requires compliance with state and federal education requirements, as well as consistency with the comprehensive plan, and that it would be difficult, if not impossible, to find sites for middle and high schools within the Primary Urban Service District that meet the state and federal requirements and meet all of the comprehensive plan policies. Findings of fact 41 and 45. The ALJ concluded that, “If Martin County is going to continue to discourage urban sprawl, public facilities shold be accommodated within the [Urban Service District], with the necessary balance of public interests and need. Otherwise, they may need to be located in the rural and agricultural areas.” F inding of fact 148. The ALJ determined that comprehensive plans may contain different standards for different types of development. Finding of fact 52. The ALJ’s conclusion is more reasonable than the legal theory advanced by the Petitioners. Petitioners’ Exception 22 is DENIED. -10- Final Order No. DCA03-GM-264 Reiteration Most of Petitioners’ exceptions merely reiterate positions which were repeatedly asserted before the ALJ, and which were clearly and specifically addressed in the Recommended Order. Therefore, these exceptions need not be addressed again in the agency’s final order. Britt v. Depart. of Prof'l. Reg., 492 So.2d 697 (Fla. Ist DCA 1986); disapproved on other grounds; Dept. of Prof’l. Reg. v. Bernal, 531 So.2d 967 (Fla. 1988). All Petitioners’ Exceptions not discussed above are DENIED. ORDER Upon review and consideration of the Recommended Order and the Exceptions, it is hereby ordered that: 1. The findings of fact and conclusions of law in the Recommended Order are adopted, except the second sentence of finding of fact 31 is rejected; 2. The Administrative Law Judge’s recommendation is accepted; and 3. The comprehensive plan amendments adopted by Martin County Ordinance No. 606, are determined to be in compliance as defined in §163.3184(1)(b), Fla. Stat. DONE AND ORDERED in Tallahassee, Florida. V, Colleen M. Castill Secretary DEPARTMENT OF COMMUNITY AFFAIRS -I1- Final Order No. DCA03-GM-264 NOTICE OF RIGHTS ANY PARTY TO THIS FINAL ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW OF THE 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. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. -12- Final Order No. DCA03-GM-264 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below this HX itBay of é 204 , 2003. By U.S. Mail: Richard Grosso, Esq. Environmental and Land Use Law Center, Inc. Shepard Broad Law Center Nova Southeastern University 3305 College Avenue Fort Lauderdale, FL 33314-7721 Lisa B. Interlandi, Esq. Environmental and Land Use Law Center, Inc. 224 Datura Street, Suite 201 West Palm Beach, FL 33401 David A. Acton, Esq. Senior Assist. County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, FL 34996-3397 Linda L. Shelley, Esq. David Moye, Esq. Fowler, White, Boggs Banker, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, FL 32302 Paula Ford Agency Clerk Joan Perry Wilcox, Esq. Environmental and Land Use Law Center, Inc. 2336 SE Ocean Boulevard PMB 110 Stuart, FL 34996 Terrell K. Arline, Esq. 3205 Brentwood Way Tallahassee, FL 32309 Carl Coffin, Esq. City Attorney 121 Southwest Flagler Avenue Stuart, FL 34994-2139 -13- By Hand Delivery: Shaw A. Stiller, Esq. Assistant General Counsel Department of Community A ffairs 2555 Shumard Oaks Boulevard Tallahassee, FL 32399-2100 -14- Final Order No. DCA03-GM-264 By Interagency Mail: The Honorable Charles A. Stampelos Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060

Docket for Case No: 02-001014GM

Orders for Case No: 02-001014GM