STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On November 18-21, 2008, a final hearing was held in this case in Stuart, Florida, before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: Richard J. Grosso, Esquire

Everglades Law Center, Inc. 3305 College Avenue

Fort Lauderdale, Florida 33314-7721

Jason Alexander Totoiu, Esquire Everglades Law Center, Inc.

818 U.S. Highway 1, Suite 8

North Palm Beach, Florida 33408-3857 For Respondent Martin County:

David A. Acton, Esquire

Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397

For Respondent Department of Community Affairs:

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

For Intervenors Martin Island Way, LLC and Island Way, LC:

William L. Hyde, Esquire Gunster, Yoakley & Stewart

215 South Monroe Street, Suite 618 Tallahassee, Florida 32301-1804

STATEMENT OF THE ISSUES

The issue in Case 08-1144GM is whether Martin County Comprehensive Growth Management Plan (CGMP or Plan) Amendment 7-20, called the "Land Protection Incentives" (LPI) Amendment

(LPIA), which was adopted by Ordinance 777 on December 11, 2007, and amended by Ordinance 795 on April 29, 2008, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1

The issue in Case 08-1465GM is whether Martin County's Comprehensive Plan Amendment 7-22, called the "Secondary Urban Service District" (SUSD) Amendment (SUSDA), which was adopted by Ordinance 781 on December 11, 2007, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

Martin County submitted the LPIA and the SUSDA to the Department of Community Affairs (DCA, or the Department) for review. On February 15, 2008, DCA issued a Notice of Intent (NOI) to find the LPIA not "in compliance" and to find the SUSDA "in compliance." On March 6, 2008, DCA filed a Petition for Formal Administrative Hearing (Petition) as to the LPIA, which resulted in DOAH Case 08-1144GM.2

On March 7, 2008, the Martin County Conservation Alliance (MCCA) and 1000 Friends of Florida, Inc. (FOF), filed a Petition for Formal Administrative Hearing (Petition) as to the SUSDA. On March 10, 2008, MCCA and FOF petitioned to intervene in DOAH Case 08-1144GM in support of DCA. On March 24, 2008, the SUSDA Petition was referred to DOAH and became DOAH Case 08-1465GM. On March 26, 2008, the ALJ consolidated DOAH Cases 08-1144GM and

08-1465GM.

On March 27, 2008, the parties filed a Joint Response to Initial Order suggesting dates in September 2008 for the consolidated final hearing; and Martin County filed a Motion to Dismiss New Issues Raised by Intervenors in Case 08-1144GM and a

Motion to Dismiss Case 08-1465GM. Martin County's motions were denied on April 7, 2008.

On May 6, 2008, DCA filed a compliance agreement between DCA and the County under Section 163.3184(16), Florida Statutes, as to DCA's issues in Case 08-1144GM, and the consolidated cases were placed in abeyance. DCA also requested realignment of the parties, which appeared to be premature under Section 163.3184(16), Florida Statutes, and was denied. In fact, on April 29, 2008, the County enacted Ordinance 795, which adopted remedial amendments in accordance with the compliance agreement.

On June 4, 2008, Martin Island Way, LLC, and Island Way, LC, petitioned to intervene in Case 08-1465GM, and they were given leave to intervene on June 16, 2008. As the parties requested in their Joint Status Report filed on June 20, 2008, the cases were scheduled for a consolidated final hearing on November 18-21, 2008, in Stuart.

On July 3, 2008, the Department filed the cumulative notice of intent to find the LPIA, as amended by the remedial amendment, "in compliance" and renewed its request to realign the parties, which was granted and done on July 7, 2008.

At the final hearing, Petitioners called the following planning witnesses: Michael J. Busha, Executive Director of the Treasure Coast Regional Planning Council (TCRPC); Nicki van Vonno, Director of Martin County's Growth Management Department, who testified as an expert in planning; Charles G. Pattison,

FOF's president; and Maggy Hurchalla, who testified regarding the CGMP and the Indian River Lagoon restoration project, and standing. Petitioners also called the following standing witnesses: David G. Braun, Executive Director of Audubon of Martin County, which is a member of MCCA; Donna Melzer, MCCA's Chairman of the Board; William Thornton; Joseph Florio;

Tom Tomlinson; Lloyd Brumfield; Louise Carneval; and Ed Fielding.

The other parties called the following expert witnesses: Morris Crady, a planner and vice-president of Lucido & Associates; Clyde Dulin, a planner and employee of Martin County's Growth Management Department; Deborah Oblaczynski, a former Development Review Administrator for Martin County; Nicki van Vonno; and Robert Dennis, DCA's Regional Planning Administrator. Intervenors also called the following standing witnesses: Thomas Frankel, managing partner of Island Way, LC; George Kelly, managing partner of Martin Island Way, LLC; and John Carmody, an attorney for Intervenors.

Petitioners introduced the following Petitioners' Exhibits, which were received in evidence: 1-7, 9-11, 14, 16-17, 19, 22,

26-27, 29-30, 39, 43-45, 69 (also labeled 6C and 6D), 78, 82-84,

88-89, 98, and 102. Objections to Petitioners' Exhibits 13 and

28 were sustained. Ruling was reserved on objections to Petitioners' Exhibits 31, 32, 40, 46, and 76. The objections are overruled as to 31, the part of 40 labeled 40A, 46, and 76; and

those exhibits are received in evidence. The objections to 32 and the part of 40 labeled 40B are sustained.

Martin County introduced the following County Exhibits, which were received in evidence: 1-10 (including 3A-3G), 15, 17- 18, 20, 25-26, 29, 31-44, and 48-50. Ruling was reserved on objections to County Exhibits 22-24. Those objections are overruled, and those exhibits are received in evidence.

The Department introduced the following DCA Exhibits, which were received in evidence: 1, 3-8, and 16-17.

Intervenors introduced the following Intervenor Exhibits, which were received in evidence: 9-17 and 19-30. Ruling was reserved on objections to Intervenor Exhibits 18 and 25. Those objections are sustained.

Respondents and Intervenors adopted each other's evidence.

After presentation of evidence, Petitioners and Intervenors requested a Transcript of the final hearing, and the parties requested and were given 30 days from the filing of the transcript in which to file proposed recommended orders (PROs). The Transcript (in eight volumes) was filed on January 12, 2009. Three agreed requests to extend the PRO deadline were granted, ultimately extending it to March 6, 2009. Two timely PROs were considered, one filed jointly by Petitioners (PPRO) and one filed jointly by Respondents and Intervenors.

A corrected version of the Transcript (with page numbers corresponding to those in the indexes) was filed on March 24,

2009; however, the PROs use the pagination (volume and page number) in first version of the Transcript.

FINDINGS OF FACT

1. Petitioners' Standing

   
   

   1. FOF and MCCA objected to the LPIA and the SUSDA during the time period from transmittal to adoption of those amendments.3

      1. FOF

         
         

   2. FOF is a non-profit organization incorporated in 1986, shortly after Florida’s Local Government Comprehensive Planning and Land Development Regulation (Growth Management) Act was enacted to monitor the Act's implementation. FOF engages in legislative, legal, and grassroots advocacy for sustainable comprehensive land use planning in Florida. It conducts membership meetings, sends newsletters to members and others, hosts meetings open to the general public, and initiates or participates in litigation or administrative proceedings concerning amendments to local comprehensive plans. Its main office is in Tallahassee, where several employees work. It also has a branch office in Lake Worth, Palm Beach County, where one employee works. It has no office or employees in Martin County. There was no evidence that FOF has applied for or obtained any license or permit to operate a business in Martin County; nor was there any evidence as to the requirements for obtaining such a license or permit.

   3. FOF has approximately 3,500 members; approximately 550 members live or own property in Martin County.

   4. FOF does not have a continuous presence in Martin County, other than its members who live and own property there, but it continuously monitors comprehensive planning and related growth management issues in Martin County and from time to time engages in activities in Martin County. Since 1990, FOF was involved in the Loxahatchee Greenways project, a major river corridor running through Martin County; was involved in the protection of Jonathan Dickinson State Park, which is in Martin County; undertook its Palm Beach and Martin County Green Initiative (which addressed housing, legal, transportation, and other planning issues in Martin County and resulted in the distribution of educational materials on Martin County planning issues); opposed specific local development proposals; supported a sales tax referendum to buy and preserve environmentally- sensitive lands; collaborated with the County planning department to update the housing element of the County Comprehensive Plan; assisted with a local affordable housing initiative; published a booklet on comprehensive planning in the County; and conducted a public survey of County residents assessing attitudes about planning.

   5. FOF staff members speak at and participate in annual growth management forums in Martin County, which are attended by a substantial number of its members.

   6. FOF has regularly commented in person and in writing to the Martin County Commission on proposed CGMP changes. FOF also has previously participated as a party in administrative hearings conducted in the County concerning the CGMP, during which its president has testified as an expert planner.

   7. The relief requested by FOF in this case is germane to its goals and appropriate to request on behalf of its members.

      1. MCCA

      
      

   8. MCCA is a Florida not-for-profit corporation created in 1997. It is a membership-based organization of 120 individuals and 14 other organizations. MCCA itself does not own real property in Martin County. However, at least 38 individual members reside and own real property in the County, and at least one organizational member (Audubon of Martin County) owns real property in the County. MCCA does not maintain an office or have paid employees. It operates through its members, who volunteer.

   9. MCCA's Articles of Incorporation state that it was formed "to conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, [and] to maintain and improve the quality of life for all of the residents of Martin County." It engages in various forms of lobbying and advocacy for or against amendments to Martin County's Comprehensive Plan, including initiation or participation in litigation and administrative proceedings. It conducts membership meetings in the County, sends newsletters to members

      and others, hosts meetings in the County that are open to the general public (including an annual growth management meeting with FOF and an annual awards luncheon with local conservation groups), and works with member organizations on issues relating to the Indian River Lagoon (IRL), including petition drives.

   10. The relief requested by MCCA in this case is germane to its goals and appropriate to request on behalf of its members.

2. Martin County Comprehensive Growth Management Plan

   
   

   1. The CGMP establishes two "urban service districts" in the County, a Primary Urban Service District (PUSD) and a Secondary Urban Service District (SUSD). See CGMP, § 4.4.G. The PUSD has been part of the Plan since it was first adopted in 1982, while the SUSD was added during the major revision of the Plan in 1990. Approximately 65,702 acres (101 square miles) are located within the PUSD. The PUSD encompasses most of the eastern coastal area of the County surrounding four incorporated municipalities, (Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park), plus an isolated inland area known as Indiantown. Approximately 9,621 acres (14 square miles) are located within the SUSD. All land within the SUSD is immediately adjacent to land within the PUSD, but is split into several discontinuous sections so that some of the land along the western border of the PUSD abuts land outside the urban service districts.

   2. The County's purpose for having urban service districts is to "regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available at the levels of service adopted in [the Plan]."

      CGMP, § 4.4.G. The Plan further provides:

      
      

      1. Objective: Martin County shall concentrate higher densities and intensities of development within the strategically located [PUSDs], as delineated, including commercial or industrial uses as well as residential development exceeding a density of two units per acre . . . .

         
         

         * * *

         
         

         b. Policy: Martin County shall require that new residential development containing one-half acre or smaller lots, commercial uses, and industrial uses shall be located within the [PUSD].

         
         

         * * *

         
         

         Objective 2. Martin County shall concentrate rural and estate densities not exceeding one unit per gross acre within the [SUSDs] where a reduced level of public facility needs are programmed to be available at the base level of service adopted in the Capital Improvements Element.

         
         

         a. Policy: Martin County shall designate land uses within the [SUSD] in order to provide for the use and extension of urban services in an efficient and economical manner, and consistent with the reduced intensity of urban services normally associated with densities of one unit per gross acre (Estate Density RE-1A) and one unit per two gross acres (Rural Density). . . .

         * * *

         
         

         f. Policy: In areas designated as [SUSD], where development is proposed that would contain one- half acre lots, or commercial and industrial uses, a change to a [PUSD] designation must be approved by the Board of County Commissioners as part of a land use amendment . . . .

         
         

   3. The Plan thus generally establishes residential density for land within the PUSD at 2 or more dwelling units per acre, and for land within the SUSD at 1 dwelling unit per acre to 1 dwelling unit per 2 acres.

   4. The remaining land within the County that is not within the PUSD or SUSD is generally referred to as "outside" the urban service districts. There are approximately 269,034 acres of such land. The vast majority of such land (approximately 210,379 acres) is designated in the Plan for "agricultural" use. Most of the other land outside the urban service districts is designated for either "public conservation" or "public utilities" See CGMP,

      § 4.4.L., § 4.4.M.1.a., i., and j.

      
      

   5. The Plan currently allows residential use of land outside the urban service boundaries that is designated for agricultural use but limits it to either 1 dwelling unit per 5 acres, known as "agricultural ranchette," or 1 dwelling unit per

      20 acres. See CGMP, § 4.4.M.1.a.& c. The Plan further specifies for the latter that:

      Residential development in the agricultural area is restricted to one-single family residence per gross 20-acre tract. [N]o

      development shall be permitted which divides landholdings into lots, parcels or other units of less than 20 gross acres. Acreage may be split for bona fide agricultural uses into parcels no smaller than 20 gross acres.

      . . . Residential subdivisions at a density or intensity or greater than one single- family dwelling unit per 20 gross acre lot shall not be allowed. (CGMP, § 4.4.M.1.a.)

      
      

   6. Throughout the Plan, residential development on lots of

      
      

      2 acres or more is consistently referred to as "rural" development (even within the SUSD), while residential development on smaller lots is consistently referred to as "urban" and must be in either the PUSD or SUSD. It was undisputed that the County's adoption of such a distinction between urban and rural residential lots was a professionally acceptable planning practice.

   7. Preservation of the County's agricultural lands is a goal of the Plan. See CGMP, § 4.4.L.1. It is also later stated in a policy related to the allocation of land:

      Through its planning, capital improvements, cooperative extension, regulatory and intergovernmental coordination activities, Martin County shall continue to protect agriculture as a viable economic use of land. (CGMP, § 4.4.M.1.b.)

      
      

   8. Preservation of conservation and open space areas within the County is the subject of an entire element of the Plan. See CGMP, Chap. 9.4 The County's goal is "to effectively manage, conserve, and preserve the natural resources of Martin

      County, giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries, and wildlife, with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon." CGMP, § 9.4.A. Preservation of conservation and open space areas is also addressed in numerous other objectives and policies throughout the several elements of the Plan and is a predominant theme of the entire Plan.

   9. The provision of "urban public facilities and services" is expressly limited by a policy to the County's urban service districts "in order to preserve agricultural lands and provide maximum protection to the farmer from encroachment by urban uses." CGMP, § 4.4.L.1.a.

   10. The Plan defines the term "public urban facilities and services" as "regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." CGMP,

       § 4.1.B.4. However, the term is often used in the Plan in a rearranged or abbreviated manner, such as "urban public facilities and services" (§ 4.4.G.1.f.(7)), "public facilities and services" (§ 4.4.G and § 4.4.G.1.f.), "public services and facilities" (§ 4.4.G.1.i.), "public urban facilities"

       (§ 4.4.G.1.c.), "public urban facilities" (§ 4.4.G.1.i.), or

       merely "public facilities (§ 4.4.G.1.) or "urban services " (§ 4.4.G.2.a.).

3. LPIA Provisions

   
   

   1. The LPIA adds a new objective and new policies under the Future Land Use Element goal addressing "natural resource protection," which provides:

      Martin County shall protect all the natural resource systems of the County from the adverse impacts of development, provide for continued growth in population and economy and recognize the inter-relationship between the maintenance of urban support infrastructure in waste management, air and water quality, and the coastal zone environmental quality. (CGMP, § 4.4.E.)

      
      

      To the existing 6 objectives under that goal, the LPIA adds a seventh which states:

      Martin County shall create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007. For the purposes of Section 4.4.E.7., and supporting paragraphs, the definition of open space, found in Section 9.4.A.11., CGMP, shall not include roads, highways and their median strips and berms.

      This objective is intended to encourage the conveyance of fee simple title of land listed for public acquisition by state, regional or local environmental or governmental agencies or land trusts. Lands listed for acquisition include, but are not be limited to [sic], land designated for public acquisition under the Save Our Rivers program, the Indian River Lagoon, North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program.

   2. The overall purpose of the LPIA is to encourage the owners of tracts of land outside the urban service districts that are at least 500 acres to choose a different pattern of development than the Plan now allows, by allowing a substantial reduction in the minimum lot size so that the development may be "clustered" on a smaller "footprint" within the overall tract of land, but only if at least 50% of the entire tract is "set aside" permanently for conservation, open space, or agricultural use and stripped of its potential for future development. This approach, it is hoped, will make it easier and cheaper for the County and other governmental entities to acquire the large tracts of land they desire to use for the CERP and other conservation projects.

   3. The LPIA does not allow for more development than is allowed under the Plan currently. It allows the same amount of development to be arranged on a tract of land in a different pattern than is currently allowed. It accomplishes this primarily through the combination of a change in the minimum lot size from "20 acres" to "over 2 acres" with a new allowance for "clustering" the smaller lots on a portion of an overall tract of land rather than having an equal number of larger lots spread throughout the entire tract of land.

   4. The LPIA adopts six policies to accomplish the new objective:

      Policy (7)a. provides for the protection of the land "set aside" to be conveyed or subject to an easement in favor of a combination of the County, the South Florida

      Water Management District, and a third entity, chosen from among the other governmental or not-for-profit conservation- oriented organizational entities listed in the policy.

      
      

      Policy (7)b. requires that a combination of a comprehensive plan amendment and a PUD agreement be used for the change in the development characteristics of the land. The PUD agreement would address the portion of the tract subject to development and not "set aside," while the plan amendment would address (at a minimum) the remaining portion of the tract which is permanently "set aside" for conservation, open space, or agricultural use and would no longer have any potential for residential development.

      
      

      Policy (7)c. provides additional specificity concerning the subject matters that would be addressed by the comprehensive plan amendment, such as any required change in land use designation for the set-aside portion of the tract of land, and if it remains designated for agricultural use, the removal of any potential for development.

      
      

      Policy (7)d. primarily provides additional specificity concerning the subject matters that would be addressed by the PUD agreement, setting minimum requirements to be met such as the tract having to be a minimum of 500 acres in size; the development being "fiscally neutral to existing taxpayers"; the lots having to be more than 2 acres in size; the inability to develop in environmentally sensitive areas on the tract; and the acknowledgment of a permanent restriction against any future increase of density on the tract. The policy also essentially repeats some of the requirements enunciated in the second and third policies regarding the conveyance of title or easement and the required comprehensive plan amendment, and addresses who pays the closing costs for the set-aside portion of the tract.

      Policy (7)e. establishes additional requirements specifically applicable to land that has been "listed for acquisition by state, regional, or local agencies as part of an established conservation program."

      
      

      Policy (7)f. enumerates the "site specific benefits" that the second policy states the County must consider when deciding whether to approve an application for development under the optional pattern allowed by the LPIA, such as whether more than the minimum 50% of the tract will be "set aside" permanently, whether the location fills "gaps in natural systems, wildlife corridors, greenways and trails," or whether buffers are provided along roads "to limit access and to protect vistas."

      
      

   5. The LPIA requirement for at least 50% of an entire tract being set aside for one of the three public purposes, when coupled with other requirements of the Plan such as establishment of construction setback distances, preservation of wetlands and creation of buffers around wetlands, preservation of certain uplands, would result in more than 50% of an undeveloped tract of land remaining in an undeveloped state and at least 50% of agricultural land remaining in agricultural use.

      1. Meaning and Predictability of LPIA Standards

         
         

   6. Petitioners contend that the LPIA fails to establish meaningful and predictable standards in numerous respects.

      1. No Guide to Location and Pattern of Development

         
         

   7. Petitioners contend that the LPIA fails to establish meaningful and predictable standards essentially because it does not identify the lands to be preserved and developed, leaving the results up to the choice of landowners to make proposals and

      Martin County's case-by-case decisions on future development proposals. See PPRO, ¶¶52-53. However, the goals of the LPIA are quite clear, and there is no basis to speculate that Martin County will make decisions contrary to those goals--for example, by approving PUDs or agricultural uses on the most environmentally-sensitive part of tract, ignoring the importance of environmentally-sensitive and agricultural lands and the impact of development patterns on them, and ignoring the impact of the pattern of development under the LPIA on rural character.

   8. Petitioners also criticize the LPIA for not being clear "whether a subject property must be in single ownership." (PPRO,

      ¶61.) However, it is not clear why that omission would be pertinent.

      1. Undefined Increase in Maximum Density

         
         

   9. Petitioners contend that, in four ways, the LPIA increases maximum density in the Agricultural category without defining the amount of the increase.

      1. Waiver of Density Limits

         
         

   10. Clearly, the LPIA exempts the PUD option from "the agricultural land use policies in Section 4.4.M.1.a. pertaining to the 20 acre lot size . . . ." LPIA § 4.4.E.7.d.(8). Contrary to Petitioners' contention, that does not eliminate density standards. Residential lots must be greater than two acres. See LPIA § 4.4.E.7.d.(3).

       1. Maintenance of Residential Capacity

          
          

   11. Petitioners contend the LPIA increases density because its objective is to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007." LPIA § 4.4.E.7. (Emphasis added.) Petitioners complain that County-wide residential capacity on that date is not identified and that the objective requires residential capacity in Agricultural lands to increase as it decreases elsewhere in the County. This interpretation is unreasonable. The County's interpretation, that residential units lost by preservation are to be maintained by clustering on the remaining Agricultural lands, is more reasonable.

       1. Transfer of Wetland Density

          
          

   12. Petitioners contend that the LPIA increases density by allowing transfer of wetland density in the Agricultural future land use category. See LPIA § 4.4E.7.d.(7). Under the Plan before the LPIA, up to half of wetland density can be transferred to uplands in a PUD. See CGMP § 9.4A7.b.(8). PUDs were not allowed in Agricultural lands before the LPIA. But Petitioners did not prove that allowing the transfer and clustering of residential units into a PUD on Agricultural lands under the LPIA would change the total number of residential units already allowed in Agricultural lands (at one unit per 20 acres).

       1. Alleged Failure to Remove Density from All Non-PUD Land

       
       

   13. Petitioners contend that the LPIA increases density by not stripping residential units from all so-called non-PUD land. Contrary to this contention, the more reasonable interpretation is that land not set aside for permanent preservation in a proposal made under the LPIA must be part of the proposed PUD.

       In any event, even if an LPIA proposal could include land that is neither set aside for preservation nor part of the PUD land, no residential units is such land would be transferred to the PUD, and failure to strip such land of its residential units would not affect the total number of units associated with the LPIA proposal.

   14. Petitioners also contend that the LPIA allows text amendments to increase density on land set aside for preservation under the LPIA because it specifies that such land must be changed on the FLUM and will not be eligible for "any additional [FLUM] amendment which increases residential density or intensity of use . . . ." LPIA § 4.4E.7.d.(7). The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. Even if text amendments are not prohibited, they would apply to all land in a particular land use category, not just to land set aside under the LPIA.

       1. Subsequent Plan Amendments Not Required for PUD

          
          

   15. Petitioners contend that the LPIA "is unclear as to whether a PUD can be approved without a subsequent plan amendment

       specifically authorizing the two-acre lot subdivision site plan." PPRO, ¶80. This contention supposedly arises from the language of LPIA § 4.4.E.7.c.: "The Comprehensive Plan amendment that is part of a joint Plan Amendment and concurrent PUD application submitted under this objective must address the land use designation on the land set aside in perpetuity as contiguous open space, environmentally sensitive land and/or agricultural land uses in the following manner: . . . ." (Emphasis added in PPRO, ¶82.) The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. It ignores LPIA § 4.4.E.7.d.(7): "The Comprehensive Plan amendment filed concurrently with the PUD application shall allow the site-specific clustering of density in one portion of the total subject site, including the transfer of full density of any wetlands on the site, at a density that shall not exceed one unit per twenty acres for the total site prior to conveyance.

       . . . The Plan amendment shall further specify that neither the land conveyed nor the land controlled by the PUD agreement shall be eligible for any additional [FLUM] amendment which increases residential density or intensity of use . . . ." While LPIA

       § 4.4.E.7.d.(7) discusses land that is conveyed, it is reasonably clear that a Plan amendment addressing the PUD also would be required for lands that are set aside using one of the other mechanisms specified in the LPIA.

       1. Public Benefit Criteria

          
          

   16. Petitioners contend that LPIA Section 4.4.E.7.b. and f. gives the County "unfettered discretion to reject or approve a PUD 'for any reason.'" PPRO, ¶90. Those sections provide that approval of a PUD will be based on consideration of "significant site-specific public benefits," some of which are listed. While it is true that the LPIA gives the County discretion to grant or approve a PUD based on its consideration of those factors, Petitioners did not prove "unfettered discretion." First, minimum requirements under the LPIA first must be met. Second, the list of public benefits gives some guidance as to the kinds of additional public benefits that will justify approval of a PUD. Petitioners did not prove that a comprehensive plan provision allowing for PUD zoning need be any more specific to be implemented in a consistent manner.

       1. Protection of Land Set Aside

          
          

   17. Petitioners contend that the LPIA fails to protect land set aside under the LPIA because it does not identify the land most appropriate for preservation or require that it be set aside. This contention ignores the objective to encourage conveyance of "land listed for public acquisition by state, regional or local agencies as part of established conservation programs" which "include, but are not be [sic] limited to land designated for public acquisition under" several named public acquisition programs. LPIA § 4.4.E.7. It also ignores the

       policy: "No development in the PUD shall be allowed on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species . . . ." LPIA § 4.4.E.7.d.(4). It also ignores the policy that "PUDs that include land listed for acquisition by state, regional or local agencies as part of an established conservation program shall be subject to . . . additional requirements": including fee simple conveyance of at least half of such land; and no development in the PUD on such land "unless the land has been previously impacted by agricultural activities and the proposed development is determined to be inconsequential to the implementation and success of the conservation

       program . . . ." LPIA § 4.4.E.7.e.(1)-(2). In addition, various means of protecting such lands are several of the listed "additional significant site-specific benefits" of a PUD proposal to be considered in the approval process. See LPIA § 4.4.E.7.f.

   18. Petitioners contend that the LPIA fails to "require set-aside lands to be contiguous to other farmland, open space, or natural lands" and "contiguous, functional, and connected to adjacent and regional systems." PPRO, ¶¶102-98 [sic]. These contentions ignore the objective to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses. . . ." LPIA

       § 4.4.E.7. They also ignore that land in public acquisition programs ideally is contiguous to other open space and natural

       lands. Petitioners did not prove their contention in PPRO ¶97 [sic] that it is necessary to specify the public acquisition programs for the LPIA to be implemented in a consistent manner.

   19. Petitioners contend that the LPIA fails to define the "perpetual easement" mechanism allowed in LPIA Section 4.E.7.a. for setting aside land in lieu of fee simple conveyance. See PPRO, ¶103. This contention ignores the policy in LPIA Section 4.E.7.d.(5) to use perpetual easements as a means of enforcing the prohibition against increasing residential density or intensity of use by FLUM amendments, as well as the policy in LPIA Section 4.E.7.d.(6) to use perpetual easements "to restrict future uses and ensure the government agencies or other entities holding fee simple title do not sell or develop the property inconsistent with this policy or the approved uses within the PUD Agreement." Petitioners did not prove their contention in PPRO

       ¶103 that it is necessary to further define "perpetual easement" for the LPIA to be implemented in a consistent manner.

   20. Petitioners contend in PPRO ¶¶105 and 107 that the LPIA fails to define the "agricultural uses" to be preserved in LPIA Section 4.4.E.7.c.(3) and allows the County to "specify allowed uses" without limitation and with "no certainty that farmland will be protected as farmland by easement." (Emphasis in PPRO

       ¶105.) Petitioners contend that everything allowed in the Agricultural category under the Plan will be allowed. See PPRO

       ¶107. Contrary to Petitioners' contention, it is reasonably

       clear that, while the language of LPIA Section 4.4.E.7.c.(3) contains a typographical error, the policy clearly is to maintain existing agricultural uses, not to allow intensification of agricultural use or expansion into "non-farm" uses that might be allowed in the Agricultural category.

       1. Alleged Threat to IRL and CERP Lands

          
          

   21. Petitioners contend that, by making development under its PUD option more marketable, the LPIA will encourage PUDs that do not protect and that fragment IRL and CERP lands. Petitioners did not prove that such a result is likely.

   22. Petitioners contend that the adverse impacts on IRL and CERP lands is more than speculation in part because of the wording of the policy in LPIA Section 4.4.E.7.c.(2), which is misstated in PPRO ¶114 and actually states: "If the land to be protected and maintained in perpetuity is land that is part of the North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program, the plan amendment must include a future land use amendment to change the Future Land Use Designation to Institutional-Public Conservation." The language used in the policy is poor. But Petitioners' interpretation--that only land set aside for protection that is part of all of the described CERP projects will be protected--is absurd since no such land exists. That interpretation and Petitioners' interpretation that no IRL lands

       are protected under the LPIA ignore and are contrary to the language and intent of the objective stated in LPIA Section

       4.4.E.7. and of the policies stated in Section 4.4.E.7.a., c.(1), and d.(5). The County's interpretation, that CERP and IRL lands are eligible for protection, is more reasonable.

       1. Definition of Critical Habitat

       
       

   23. Petitioners contend that LPIA Section 4.4.E.7.d.(4) does not provide a meaningful or predictable standard because the term "critical to the support of listed plant or animal species" is not better defined. Actually, PUD development is prohibited "on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species." While the policy could have been better defined, Petitioners did not prove that a better definition is necessary for the LPIA to be implemented in a consistent manner.

   24. Petitioners contend that, regardless of the "critical habitat" definition, the policy language in LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4) by prohibiting PUD development "on land listed for acquisition . . . unless the land has been previously impacted by agricultural activities "

       Actually, the policy continues to state that the exception only applies if "the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." Petitioners' interpretation, that the policy allows PUD development on virtually all Agricultural

       lands, is unreasonable and contrary to the language and intent of the LPIA. The County's interpretation is more reasonable and is reasonably clear. It allows for distinctions among the various kinds of agricultural activities, which the Plan already recognizes. See, e.g., CGMP § 4.2.A.6.b.(8) ("Many low intensity agricultural uses such as range (pasture) land can be compatible with environmentally significant resource areas.") For these reasons, Petitioners did not prove that LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4), or that the LPIA cannot be implemented in a consistent manner.

       1. LPIA and Urban Sprawl

          
          

   25. In part based on unreasonable interpretations of the LPIA's objective and policy language, Petitioners contend that Martin County's Comprehensive Plan as amended by the LPIA no longer discourages urban sprawl and that the LPIA encourages urban sprawl. In part because the interpretations were unreasonable, Petitioners' urban sprawl contentions were not proven. Even if the LPIA results in a proliferation of PUDs with clusters of residences on lots slightly larger than two acres, which is the minimum lot size, it would not equate to urban (or suburban) sprawl. Assuming PUDs based on 500-acre tracts, it would result in a cluster of 25 homes within a 500-acre rural area. The LPIA does not plan for the extension of urban services to those homes and does not provide for or allow any new commercial or industrial development. Both the LPIA and the rest

       of the CGMP include provisions, most notably those related to the urban service districts, to reasonably ensure that urban sprawl will not result.

   26. To the extent that the LPIA triggers the first primary indicator of urban sprawl in Florida Administrative Code Rule5 9J-5.006(5)(g) ("designates for development substantial areas of the jurisdiction for low-intensity, low density or single use development or uses in excess of demonstrated need"), the Agricultural lands designation already does.

   27. Petitioners did not prove that the LPIA triggers the second primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[p]romotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development"). The development promoted, allowed, or designated by the LPIA is not "urban" and does not "leap over undeveloped lands which are available and suitable for development." It allowed for development already promoted, allowed, and designated to arrange itself differently in a rural area.

   28. Petitioners did not prove that the LPIA triggers the third primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (designation of urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development").

   29. Petitioners did not prove that the LPIA triggers the fourth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (promotes premature conversion of rural land to other uses, thereby failing to adequately protect and conserve natural resources). To the contrary, its primary purpose is to protect and conserve natural resources and rural land.

   30. Petitioners did not prove that the LPIA triggers the fifth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to adequately protect "adjacent agricultural areas" as well as "passive agricultural activities and dormant, unique and prime farmlands and soils").

   31. Petitioners did not prove that the LPIA triggers either the sixth or seventh primary indicator of urban sprawl in Rule

       9J-5.006(5)(g) (fails to maximize use of existing and future public facilities and services).

   32. Petitioners did not prove that the LPIA triggers the eighth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[a]llows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services").

   33. Petitioners did not prove that the LPIA triggers the ninth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to provide a clear separation between rural and urban uses").

   34. Petitioners did not prove that the LPIA triggers the tenth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[d]iscourages or inhibits infill development or redevelopment of existing neighborhoods and communities"). Although LPIA PUDs obviously would not be infill or redevelopment, it was not proven that they will discourage or inhibit infill and redevelopment.

   35. To the extent that the LPIA triggers the eleventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to encourage an attractive and functional mix of uses"), the Agricultural lands designation already does.

   36. To the extent that the LPIA triggers the twelfth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[r]esults in poor accessibility among linked or related uses"), the Agricultural lands designation already does.

   37. Petitioners did not prove that the LPIA triggers the thirteenth primary indicator of urban sprawl in Rule 9J- 5.006(5)(g) ("[r]esults in the loss of significant amounts of functional open space").

   38. The LPIA does not exacerbate the two already-existing indicators of urban sprawl, but Petitioners still contend that the indicators are triggered by the LPIA essentially because development will proceed more quickly under the LPIA. This contention was not proven. Even if it were, Petitioners did not prove that the LPIA encourages the proliferation of urban sprawl

       or that the CGMP, as amended by the LPIA, fails to discourage the proliferation of urban sprawl.

       1. LPIA Data and Analysis

          
          

   39. Petitioners contend that the LPIA is not supported by data and analysis because the County explained it as a necessary response to the proliferation of 20-acre ranchette developments whereas only 75 have been built and only 15 have certificates of occupancy. Actually, the ranchette developments were only one reason for the LPIA, and the data and analysis showed 13 approved developments as of mid-September 2007, and three more approvals plus two pending applications for approval a year later.

   40. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA implements some but not all of the recommendations in the various reports and studies cited by the County as part of the data and analysis.

   41. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA does not conform to some recommendations in the various reports and studies cited by the County as part of the data and analysis. However, Petitioners base their contentions largely on unreasonable interpretations of the language of the objective and policies of the LPIA. In addition, the data and analysis they point to essentially reflect merely that planners disagree on the best plan for the Agricultural lands.

   42. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA is not identical to the Atlantic Ridge project amendment. While all agree that the Atlantic Ridge project is a resounding success story, it is unique. The obvious and understandable inability to instantaneously duplicate Atlantic Ridge to the greatest extent possible in the Agricultural lands should not prevent the County from taking any action in its direction, such as the LPIA.

   43. Taken together, the data and analysis are adequate to support the LPIA.

       1. LPIA and TCRPC Regional Policy Plan

          
          

   44. Petitioners contend that the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP). The TCRPC's SRPP was not introduced in evidence, but the TCRPC's Executive Director testified and sponsored the TCRPC's report on the LPIA and the SUSDA. The TCRPC's findings on consistency with its SRPP were not contradicted.

   45. According to the TCRPC, the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP) Policies

       2.1.1.1 and 2.1.1.2, which are to determine areas that are environmentally significant and to map, acquire, and manage them. The LPIA does not do this.

   46. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Goal 1.1, which requires sustainable countryside development in urban enclaves, such as towns and villages, with

       mixed-use and appropriate densities between 4-10 units per acre, on strategically selected locations while preserving contiguous, targeted land identified through SRPP Policies 2.1.1.1 and

       2.1.1.2. The LPIA does not do this.

       
       

   47. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Policy 15.1.3.1, which is to increase the clarity of local land use plans so that preferred forms of development can be pre-approved. Instead, the LPIA uses the case-by-case PUD approval process to determine the ultimate development patterns for the Agricultural lands.

   48. The inconsistency with SRPP Policy 15.1.3.1 is the only LPIA inconsistency not already equally present in the existing CGMP. The TCRPC's concern as to the other inconsistencies is that the LPIA will make residential development in the Agricultural lands more marketable and increase the rate of residential growth in a manner inconsistent with SRPP Goal 1.1 and Policies 2.1.1.1 and 2.1.1.2.

       1. Internal Consistency of the LPIA

       
       

   49. Petitioners contend that the LPIA is inconsistent with CGMP Sections 1.6 and 1.11.A. for being inconsistent with the TCRPC's SRPP.

   50. CGMP Section 1.6 states that "elements of the [CGMP] shall be consistent and coordinated with policies of [various entities, including the TCRPC]. Petitioners did not prove that the County does not interpret that provision to require internal

       consistency and coordination with the other entities' policies, or that such an interpretation would be incorrect.

   51. CGMP Section 1.11.A. refers to amendment procedures. Essentially, it states that plan amendments must be "in compliance." There was no evidence that the County intended it to require strict and absolute consistency with the TCRPC's SRPP, or any evidence to prove that it would be incorrect for the County to interpret it not to.

   52. Petitioners also contend that the LPIA is inconsistent with CGMP Section 1.11.K., which also refers to amendment procedure. Petitioners did not prove that the LPIA is inconsistent with CGMP Section 1.11.K. for not having concurrently-processed land development regulations (LDRs) since concurrently-processed LDRs are only required "[t]o the extent necessary to implement a proposed amendment," and Petitioners did not prove that concurrently-processed LDRs are necessary.

   53. Petitioners also contend that the LPIA is inconsistent with numerous other provisions of the CGMP. These contentions were not proven. Most, if not all, were based on unreasonable interpretations of the LPIA.

4. SUSDA Provisions

   
   

   1. The SUSDA amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the SUSD to apply for

      connection to regional water and sewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner.

   2. The policy of SUSDA Section 4.4.G.2.g. expressly states:

      The County Commission has determined that it is in the best interest of the health, safety, and welfare of the citizens of Martin County that regional water and sewer services be made available to properties within the [SUSD], in order to: (1) Protect our natural resources . . . from the negative impacts of onsite sewage disposal (septic) systems and private wells to serve individual residential units; (2) Provide fire protection; [and] (3) Provide safe drinking water.

      
      

      The policy of SUSDA Section 4.4.G.2.h. requires that the extension of any such services to properties within the SUSD must have Board approval, which cannot occur unless the Board finds that certain enumerated criteria have been met, including:

      1. Regional utility services may be provided to properties within the [SUSD] upon the request of the affected property owner, and upon payment of the required costs for connection to the regional system.

         
         

      2. Such services may only be provided by a regional utility, public or private, within a service area shown on Figure 11-2.

         
         

      3. Package plants for the provision of utility service are prohibited except under the provisions of the [CGMP].

         
         

      4. The regional utility must demonstrate the treatment facility has capacity for the proposed connection and priority has been given to projects within the [PUSD].

      5. Extension of utility services shall not be construed to imply support for any increase in the residential density of the property inside the [SUSD].

         
         

      6. Property lying outside the Urban Service Districts . . . shall not receive utility service from a regional wastewater system.

         
         

      7. Extension of utility service outside the Urban Service Districts shall be prohibited.

         
         

      8. Development within the [SUSD] shall maintain lot sizes that exceed one-half acres.

      
      

   3. The SUSDA also contains new charts added to both the sanitary sewer services element and the potable water services element that display the numerical capacity of the regional water and sewer systems to handle additional customers upon extension of lines to the SUSD. See SUSDA Tables 10-3 through 10-6 and 11-

      12 through 11-15.

      
      

   4. There was no credible evidence of any likelihood that the adoption of the SUSDA would allow the further extensions of water and sewer lines from the SUSD to properties outside the urban service districts. The testimony offered by Petitioners was speculative at best and depended upon an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting such extension of services. See SUSDA

      §§ 4.4.G.2.h.(6)-(7) and 4.5.H.

      
      

      1. Meaning and Predictability of SUSDA Standards

         
         

   5. Petitioners contend that the SUSDA's standards are not meaningful or predictable because of the undefined term "central

      water and sewer" in the policy in SUSDA Section 4.4.G.2.a. Petitioners contend that "central water and sewer" can be interpreted to mean something other than a regional utility, and that the SUSDA can be interpreted to allow regional utility, package plant, and other similar types of utility systems serving two or more houses outside the urban services districts.

      Petitioners' interpretations are unreasonable and contrary to the language and intent of the SUSDA. Petitioners' evidence was speculative and depended on an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting package treatment plants in the SUSD. See SUSDA

      § 4.4.G.2.h.(3) and § 4.5.H. In addition, the evidence was that package treatment plants may no longer be economically feasible. The County's interpretation is more reasonable--"central water and sewer," as used in SUSDA Section 4.4.G.2.a., means the provision of regional utility services by Martin County in the SUSD, and no such facilities may be provided outside the urban service districts.

      1. SUSDA Data and Analysis

         
         

   6. Petitioners contend that the data and analysis do not support the SUSDA essentially because they do not establish "any actual health, safety, or welfare problems." PPRO, ¶208. The absence of proof of actual health, safety, or welfare problems is not fatal in view of the rest of the data and analysis supporting the SUSDA.

   7. Since the creation of the SUSD in 1992, development in the PUSD has resulted in the extension of water and sewer lines up to the border between the PUSD and the SUSD. In effect, the intended SUSD transition area has transitioned. Meanwhile, the regional water and sewer utilities serving the County now have the necessary capacity to serve the PUSD and the SUSD.

   8. Improved fire protection in the SUSD is a benefit of regional water service, allowing installation of community fire hydrants. Without it, developers in the SUSD must rely on installed sprinklers and emergency generators and water drawn from nearby lakes or installed water tanks. While regional water service can fail temporarily in major storms, and the data and analysis did not include actual instances of fire damage cause by the lack of regional water service in the SUSD, regional water service generally provides more reliable and less costly fire protection.

   9. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit potable water wells, regional water service generally is better, more reliable, and less costly. The data and analysis did include actual instances of home owners having to install expensive water treatment systems due to increasing chloride levels in their potable water wells. Connection to regional water service would eliminate those costs and concerns.

   10. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit septic tanks systems for onsite sewage treatment (i.e., systems that meet environmental and health standards), such systems can fail if improperly installed, maintained, and repaired. If they fail, nutrients such as nitrogen and phosphorus can leach into and harm the groundwater and nearby surface waters. The North Fork of the Loxahatchee River, which is nutrient-impaired, probably would benefit from elimination of septic tanks. Regional sewer service generally is better for the environmental and public health.

   11. The data and analysis suggest that allowing regional water and sewer service in the SUSD, with the SUSDA's requirement for developers to pay the cost of installation, probably will save the County money in the long run. It will be a significant cost to the County if it has to install water and sewer lines post-development.

   12. Petitioners attack the credibility of the data and analysis supporting the SUSDA because regional water and sewer service is optional in the SUSD. But there were data and analysis that, even if regional water and sewer service in the SUSD is preferable, there are valid reasons to make it optional at this time.

       1. Alleged Environmental Impact of the SUSDA

          
          

   13. Petitioners contend that the SUSDA will have negative environmental impacts in part from a proliferation of package treatment plants in the SUSD, which is discouraged in CGMP Section 4.4. See PPRO, ¶¶221, 223. This contention is based on Petitioners' unreasonable interpretations of two sentences of the SUSDA. SUSDA Section 4.5.G. prohibits interim water systems outside the urban service districts and allows them, with conditions, in the PUSD where connection to a regional utility is not feasible. Petitioners interpret these two sentences to mean that interim water systems are allowed, without conditions, in the SUSD. The County's interpretation is more reasonable. Since the SUSDA makes connection to the regional utilities optional, there is no need for interim water systems in the SUSDA, and the SUSDA should not be construed to allow them there.

   14. Petitioners contend that the SUSDA will have negative environmental impacts in part essentially because increased development results in increased pollution. See PPRO, ¶228. To the extent true, it would be equally or more true of similar development without regional water and sewer services.

       1. SUSDA and Urban Sprawl

          
          

   15. Petitioners contend, in part due to their unreasonable interpretations of the objective in SUSDA Section 4.4.G.2.a., that Martin County's Comprehensive Plan as amended by the SUSDA, no longer discourages urban sprawl and that the SUSDA encourages

       urban sprawl. In part due to the unreasonableness of Petitioners' interpretation of the SUSDA, Petitioners' urban sprawl contentions were not proven. It is unlikely that the SUSDA will encourage urban sprawl.

   16. Petitioners also contend that the SUSDA will encourage urban sprawl simply by allowing denser development in the 5,000- 6,000 acres of the SUSDA not yet developed. This contention is contrary to the SUSDA policy: "Extension of utility services shall not be construed to imply support for any increase in residential density of the property inside the [SUSD]." SUSDA

       § 4.4.G.2.h.(5).

       
       

   17. Even if the SUSDA increased density in the SUSDA, increase in density itself does not promote urban sprawl. To the contrary, it is possible for increased density to discourage urban sprawl. Petitioners did not prove that increasing density in the SUSDA itself encourages urban sprawl or that, with the SUSDA, the CGMP will discourage urban sprawl less.

   18. Petitioners contend that the SUSDA will create pressures to develop areas that border the SUSD, leaping over areas suitable for urban development. See PPRO, ¶¶236-237. This contention actually devalues the very urban service district concept Petitioners seek to defend and can be said about any urban district boundary. Currently, there are many places where the PUSD borders the Agricultural lands. The pressures created

       by the SUSDA will be no greater than the pressures that have existed in those places all along.

   19. Petitioners contend that the SUSDA will increase costs to the County essentially because, notwithstanding SUSDA's requirement that developers pay the cost of connection, development will not pay for itself in the long run (taking into account costs of operations, maintenance, and repair.) To the extent true, it can be said of all development and does not prove that the SUSDA encourages urban sprawl.

   20. Petitioners did not prove that the SUSDA triggers any of the indicators of urban sprawl; did not prove that the SUSDA encourages the proliferation of urban sprawl; and did not prove that the CGMP, as amended by the SUSDA, fails to discourage the proliferation of urban sprawl.

       1. Internal Consistency of the SUSDA

       
       

   21. Petitioners contend that the SUSDA is internally inconsistent with CGMP Section 4.4.G.1.i., which gives priority in the provision and funding of water and sewer services to the PUSD, essentially because the data and analysis ensure that water demands in the PUSD can be met through 2025. The lack of data and analysis at present to ensure that water demands in the PUSD can be met beyond 2025 does not prove that priority will not be given to the needs of the PUSD.

       CONCLUSIONS OF LAW

       
       

5. Petitioners' Standing

   
   

   1. To challenge Martin County's LPIA and SUSDA in this case, Petitioners must be "affected persons," as defined by Section 163.3184(1)(a), Florida Statutes.6

   2. Petitioners proved that they operate a business in Martin County. Participation in local government activities in furtherance of declared corporate purposes "may constitute a business activity. . . . Chapter 163 does not require a party to operate a classic commercial enterprise to qualify as an "affected person." See Florida Wildlife Federation, Inc., et al. v. Dept. of Community Affairs, DCA Final Order No. DCA04-GM-112, DOAH Case No. 03-2164GM, 2004 Fla. ENV LEXIS 239 at *5-10 (DCA July 16, 2004) (citing 1000 Friends of Florida, Inc. v. DCA, Final Order No. DCA01-GM-257 (DCA Dec. 28, 2001) ("there was persuasive evidence that both [1000] Friends and especially Audubon [Society] operated a business in the Village (as well as elsewhere). The nature of both their businesses is different from that of a more 'classic' commercial enterprise, but so long as the threshold local presence or nexus exists, Section 163.3184(1)(a) does not discriminate based on the kind of business operated.").

   3. Associations, such as FOF and MCCA, also may have associational standing on behalf of their members when a substantial number of them would otherwise have standing to sue

      in their own right, and the case is germane to the organizations' purposes. See § l63.3184(1)(a), Fla. Stat.; Fla. Home Builders Assn. v. Dept. of Labor, 412 So.2d 351 (Fla. l982); Farmworkers Rights Org. v. Dept. of Health, 417 So.2d 753 (Fla. lst DCA l982). Petitioners each have a substantial number of members who are "affected persons," and this case is germane to the purposes of each.

   4. Petitioners have associational standing and standing in their own right as "affected persons" under Section 163.3184(1)(a), Florida Statutes.7

6. Petitioners' Burden of Proof

   
   

   1. Under Section 163.3184(1)(b) and (16)(f)1., Florida Statutes, Martin County's LPIA and SUSDA "shall be determined to be in compliance if the local government's determination of compliance is fairly debatable."

   2. "'In compliance' means consistent with the requirements of ss. 163.3177, when a local government adopts an educational facilities element, 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 and with part III of chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat.

   3. A local government's comprehensive plan does not have to be the best plan (something that itself usually will be fairly debatable); it only has to be "in compliance."

7. Meaningful and Predictable Standards

   
   

   1. In contending that the LPIA and the SUSDA fail to provide meaningful and predictable standards, Petitioners seek to impose requirements not found in the applicable statutes and rules.

   2. Rule 9J-5.005(6), entitled "Plan Implementation Requirements," recognizes that comprehensive plans are to be implemented through LDRs and states in pertinent part:

      [T]he sections of the comprehensive plan containing goals, objectives, and policies shall describe how the local government's programs, activities, and land development regulations will be initiated, modified or continued to implement the comprehensive plan in a consistent manner. It is not the intent of this chapter to require the inclusion of implementing regulations in the comprehensive plan but rather to require identification of those programs, activities, and land development regulations that will be part of the strategy for implementing the comprehensive plan and the goals, objectives, and policies that describe how the programs, activities, and land development regulations will be carried out consistent with Section 163.3201, F.S. Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations.

      
      

      Petitioners did not prove beyond fair debate that the LPIA and the SUSDA do not meet the requirements of this Rule.

      
      

8. Urban Sprawl

   
   

   1. Rule 9J-5.006(5) requires that a comprehensive plan or plan amendment discourage the proliferation of urban sprawl.

      This "urban sprawl" rule sets out an elaborate means of determining whether this requirement is met. It includes 13 indicators of urban sprawl, each of which is to be evaluated qualitatively using a methodology that appears to begin with a consideration of the land use types and combinations and the development controls in the plan; then each land use type and combination is to be analyzed within the context of the features and characteristics of the locality, individually and together; then the analysis components are supposed to be combined in a systematic way to determine the presence of urban sprawl indicators. (Incidentally, 22 development controls are listed for consideration, most of which are present in the CGMP, including: open space requirements; development clustering requirements; other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development; infrastructure extension controls; development paying for itself to some extent; transfer of development rights; planned unit development requirements; effective functional buffering requirements; restriction on expansion of urban areas; planning strategies and incentives which promote the continuation of

      productive agricultural areas and the protection of environmentally sensitive lands; urban service areas; and urban growth boundaries.) Implementation of the "urban sprawl" rule leaves much room for debate, and Petitioners did not prove beyond fair debate that either the LPIA or the SUSDA encourage the proliferation of urban sprawl or that the CGMP, as amended, fails to discourage the proliferation of urban sprawl.

9. Data and Analysis

   
   

   1. Comprehensive plans must be based on relevant and appropriate data and analysis. See § 163.3177(6), (8), and (10)(e), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2)(a). The local government must "react to [the data and analysis] in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." The data must be "collected and applied in a professionally acceptable manner."

   2. Petitioners did not prove beyond fair debate that either the LPIA or the SUSDA was not based on data and analysis.

10. Internal Consistency and the TCRPC SRPP

1. Comprehensive plans must be internally consistent. See § 163.3177(2), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(5).

2. Petitioners contend in part that the LPIA is internally inconsistent because CGMP Sections 1.11.A. and 1.11.K., which refer to amendment procedure, were not followed. Those contentions were not proven. Even if it were proven that

   the amendment procedures were not followed, the substance of the LPIA was not internally inconsistent with those or any other CGMP provisions. See Anna Current v. Town of Jupiter and Dept. of Community Affairs, DOAH Case 03-0718GM, 2003 Fla. ENV LEXIS 250 (DOAH Oct. 24, 2003) (generally, plans and plan amendments are not reviewed for consistency with adoption procedures).

   Petitioners also did not prove beyond fair debate that the SUSDA was internally inconsistent with the CGMP.

3. "[F]or the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans."

   § 163.3177(10)(a), Fla. Stat.

   
   

4. Like the state comprehensive plan, regional planning council policy plans set out general planning goals, objectives,

   and policies for a region. They generally do not establish "minimum criteria."

5. During intergovernmental review of a local government's comprehensive plan under Section 163.3184(4), Florida Statutes, "any inconsistency between a local plan or plan amendment and a strategic regional policy plan must not be the sole basis for a notice of intent to find a local plan or plan amendment not in compliance with this act." It would follow that such an inconsistency cannot be the sole basis for a determination after proceedings under Section 163.3184(9)-(10), Florida Statutes, that a local plan or plan amendment is not "in compliance." If Petitioners proved beyond fair debate that the LPIA is inconsistent with the TCRPC's SRPP, it would be the only inconsistency proven and would be insufficient for a determination that the LPIA is not "in compliance."

6. Petitioners did not prove beyond fair debate that either the LPIA or the SUSDA is not "in compliance."

RECOMMENDATION

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

RECOMMENDED that the Department of Community Affairs enter a final order determining that the LPIA and the SUSDA are "in compliance."

DONE AND ENTERED this 10th day of April, 2009, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2009.

ENDNOTES

1/ All statutory references are to the 2008 version of the Florida Statutes.

2/ DCA also noticed its intent and petitioned to find other plan amendments not "in compliance" but those issues eventually were resolved through a compliance agreement and severed from the rest of Case 08-1144GM. By agreement of the parties, jurisdiction was partially relinquished to DCA to find those plan amendments "in compliance."

3/ Intervenors supported the amendments during the relevant time period through statements of their attorney during the transmittal and adoption hearings.

4/ The term "open space" is defined in the Plan as "resource- based parks and land preserved [f]or conservation or aesthetic reasons. It shall also include all those properties which the County owns and for which it has maintenance responsibility, including, but not limited to, roads and highways, and their median strips and berms." CGMP, § 9.4.A.11.

5/ All rule references are to the current version of the Florida Administrative Code.

6/ DCA and Martin County, as the "affected local government" under the statute, clearly have standing. Intervenors also have

standing as "affected persons" under the statute. In any event, it is not necessary to determine Intervenors' standing as "affected persons" since Respondents and Intervenors adopted each other's evidence.

7/ While not necessary to rule on Intervenors' standing, they also have standing as owners of property in the County who commented during the relevant time period. Cf. Endnote 3, supra.

COPIES FURNISHED:

Thomas Pelham, Secretary Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

Shaw Stiller, General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Richard E. Shine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

David A. Acton, Esquire

Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397

Richard J. Grosso, Esquire Everglades Law Center, Inc. 3305 College Avenue

Fort Lauderdale, Florida 33314-7721

Jason Alexander Totoiu, Esquire Everglades Law Center, Inc.

818 U.S. Highway 1, Suite 8

North Palm Beach, Florida 33408-3857

William L. Hyde, Esquire Gunster, Yoakley & Stewart

215 South Monroe Street, Suite 618 Tallahassee, Florida 32301-1804

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: 08-001465GM

Orders for Case No: 08-001465GM