Investigative Report

NOTE: This “Investigative Report” was written many years ago by engineers for the Pal-Mar Water Control District supervisors.  It is provided simply as a reference – not a complete history of the subdivision.


INVESTIGATIVE REPORT OF THE PRELIMINARY CONCEPTUAL PLAN OF DEVELOPMENT for PAL-MAR WATER CONTROL DISTRICT

ABSTRACT

An historical review of the Pal-Mar Water Control District and development attempts by the entities known as Rotonda, Palm Beach Heights and Sabalton are presented spanning seventeen years from 1968 to the present.  A concise review of litigation, either with or at the instigation of the Board of County Commissioners of Martin County, Florida is presented, and the end result which has halted construction for nine years is detailed for the reader. The original Plan of Reclamation and its amendment are explained as a preface for presentation of an initial, new concept of development.

The initial conceptual plan as presented is a work tool for the landowners to evaluate alternatives to the current Plan of Reclamation. It is neither complete in detail or rigidly fixed in configuration at this time. Its revision over the span of several months will be the basis for defining the geographic limits and timing for units of development by the several major landowners. Legislation is pending to enable this phased and separately accounted development procedure. Special concern is recognized for the more than 8,500 lot owners who are dependent upon Palm Beach Heights and the District to recapture the earlier value in their investments.

The results of a review of the applicable laws and ordinances of the United States, Florida and local government and the rules and regulations of the permitting agencies having competent jurisdiction are considered. An attempt is made to highlight those laws, ordinances and regulations which will or could act to constrain development of a new Plan of Reclamation.

The scope of this report, as assigned by the Board of Supervisors, does not attempt to cover cases and interpretations of the law. This report should not be used as more than a guideline in investigating the constraints imposed by law and the agency regulations upon the new development concept.

The advice of counsel is available to the Board of Supervisors, and other landowners must seek competent legal advice in any decision regarding development or sale of property within the District.

ROTONDA CITY

The first development concept for the project known to different persons as Palm Beach Heights and Pal-Mar Water Control District began in early 1968. The concept was a mixture of rural residential, urban, suburban, commercial and industrial land uses. Central to the concept was “Rotonda,” the City in the Round, a residential community of platted golf course developments planned in what today is known as Phase V. Palm Beach Heights, which comtemplated only drainage and graded roads occupies what is now Phases I, II and III. Please see Plate I.

THE DRAINAGE DISTRICT

Rotonda Drainage District was formed May 6, 1968, by the project sponsors to implement a reclamation plan to render the land suitable for development. The concept of drainage closely paralleled the U.S. Army Corps of Engineers Survey-Review Report on Central and Southern Florida Project – Martin County, Florida (Martin County Plan) in that the drainage receiving body, main outfall canal and design rainfall removal criteria were all incorporated. The Martin County Plan was supported by the Martin County Commission, Central and Southern Florida Flood Control District and other persons representing local organizations and governments.

THE PLAN, OBJECTIONS AND REVISIONS

The original Plan of Reclamation contemplated drainage of 22,500 acres to the St. Lucie Canal through a new spillway. However, when a permit was filed with the U.S. Army Corps of Engineers, intense opposition was mounted by Martin County and numerous conservation oriented organizations based upon the addition of more fresh water volume to the St. Lucie Canal and its impact upon the estuaries downstream.

To eliminate the objections and delays which threatened the economic viability of the project, the Board of Supervisors directed its District Engineer, Frederick L. Bell, P.E., to devise a concept of on-site containment for surface water runoff. The amendment to the Plan of Reclamation dated July 15, 1969 set aside nearly six square miles for construction of an aboveground impoundment reservoir. Only that portion of the District which was already connected to the St. Lucie Canal by Spillway “H” would drain by gravity outside the present boundary.

Despite the amendment, objections remained because, as originally proposed, the reservoir was a temporary plan to be scrapped when back pumping of the St. Lucie Canal to Lake Okeechobee was a reality and the Corps of Engineers permit was issued.

NEGOTIATIONS AND AGREEMENTS

Negotiations ensued among individuals and several conservation organizations represented by James F. Littman, a Stuart attorney; the Water Management Advisory Board serving the Martin County Commission; the Commission for Martin County; John L. McQuigg, Director of the Florida Audubon Society and Rotonda regarding the status of the impoundment area and the pending Corps of Engineers permit application to construct the proposed spillway at the St. Lucie Canal.

Since objections hinged upon the possibility of eventual drainage to the St. Lucie Canal of the part of the District which was to be impounded temporarily, the Board of Supervisors voted unanimously to withdraw the application for a new spillway. The action was permanent and irrevocable. This action was contingent upon the Martin County Commission’s approval of the plats for the development of Rotonda City. Each objecting party and the District documented its position in the Court record of the pleadings filed in connection with the District’s Petition to Amend Plan of Reclamation and for Change of Name.

The District on October 10, 1969 permanently and irrevocably withdrew its application to the Corps of Engineers for construction of a new spillway to connect the District to the St. Lucie Canal and on November 4, 1969 revised the Petition to amend its plan pending before the Circuit Court. The Order amending the Plan on November 4, 1969 reflects the withdrawal of the Corps of Engineers permit and the removal of all objections. The order also changed the District’s name to Rotonda Water Conservation District.

It is indeed unfortunate that the District or the sponsors did not require the Martin County Commission to place in writing its obligation to approve the plats for Rotonda City.
Thus, with a new Plan of Reclamation and leadership of its new Chief Engineer, H. C. Gee, P.E., the District began design and construction.

THE AMENDED PLAN OF RECLAMATION

The Rotonda Water Conservation District’s Plan of Reclamation, as amended, provided two separate water management systems. It is this plan which exists today and which must be constructed unless a new plan is adopted by the Board of Supervisors.

The District was divided into an open water management system consisting of Phase III and a closed water management system consisting of Phases I, II, IV and V. Please refer to Plate I. The open system, which currently discharges surface water runoff and groundwater through an existing system of farm drainage ditches, is connected to the St. Lucie Canal (C-44) through an existing concrete and steel spillway structure, Spillway “H”, constructed by the U.S. Army Corps of Engineers in 1933. These facilities precede formation of the Central and Southern Florida Flood Control District, which later became the South Florida Water Management District.

The closed system concept consists of an aboveground stormwater receiving body, or retention reservoir, of six square mile surface area with appurtenant low lift pump station and a three phase stormwater collection system. Please refer to Plate II which details the system configuration.

STORMWATER COLLECTION SYSTEM DESIGN CRITERIA AND PHYSICAL DESCRIPTION

The closed system consists of Phases I, II, IV and V. Phases I and II are a system of stormwater collection canals surrounded on the east and north by a system of sheet flow interceptor levees necessary to prevent inflow of stormwater runoff to the closed system. Phases I and II were designed by your current District Engineer and have been completed previously under separate contracts. They stand in a state of readiness to serve the District, requiring only annual maintenance and interconnection with the proposed water management system.

Phase V, also designed by your current District Engineer, exists presently as a system of main canals for conveyance of stormwater runoff from Phases I and II to the District reservoir and pump station. Construction yet to be completed includes lateral canals for stormwater collection in the Phase V geographic area and a system of perimeter, interceptor levees on the south boundary of Phase V. Please refer to Plate I.

Lateral canals in Phases I and II, are constructed by design with greater hydraulic capacity than required to serve the subdrainage areas. Lateral canal sizes have been dictated by the need to provide minimum water depth at minimum design water surface elevation or static stage. Minimum design water depth of seven feet was chosen to provide a permanent flow area free from native, bottomrooted, aquatic vegetation. Side slopes of two horizontal to one vertical (2:1) were chosen as the maximum permissible slope for reasonable stability and economy of construction cost.

Phase I and II main collector canals were designed to provide the required project design stormwater removal capacity of 2.6 inches per day. Canal side slopes were chosen two horizontal to one vertical (2:1), as dictated by minimal existing right-of-way. Vegetative measures and maintenance were planned to ensure proper functioning of the stormwater collection system.

Right-of-way alignment and widths for Phase I and II canals and levees were set according to earlier District criteria. Rights-of-way were thus acquired by the District and land sales were affected by the owners, subject to these criteria. Canal alignments for Phases I and II are rectilinear, with main canals having north-south alignment in Phase I and east-west alignment in Phase II. Lateral canals assume perpendicular alignment on one-half mile intervals with right-of-way centerlines being located on quarter-quarter section lines. Lateral canal rights-of-way are an adequate 160 feet in width in Martin County and 60 feet in width in Palm Beach County. Subminimum design lateral canal sections on the 60-foot laterals in Palm Beach County will present recurrent maintenance problems, but were judged to be feasible.

Phase I and II perimeter levee rights-of-way on the north boundary of the District were acquired subject to prior right-of-way criteria. Easements 50 feet in width contain levees and adjacent borrow canals. Limited easements 30 feet in width allow space for the perimeter levee only, and extensive earth hauling was necessary for the construction. Less than two miles of this inadequate levee right-of-way exists.

Perimeter levees were designed with a minimum top width of ten feet to allow passage of limited vehicular traffic and maintenance access. Side slopes were set at two horizontal to one vertical (2:1), based upon slope stability analysis. Levee design elevations were set to provide adequate height and freeboard to prevent overtopping. Vegetative measures and annual maintenance were provided to ensure structural integrity of the levees.

Current right-of-way criteria for the Phase V main canals was established by the present District Engineer. Curvilinear alignments were designed and acquired for permanent rights-of-way.

Right-of-way criteria for the perimeter levee on the south boundary of Phases II and V in the closed system was established by the current District Engineer. A right-of-way width of 80 feet will provide ample space for the perimeter levee and borrow canal. Levee design elevations and top width duplicate earlier criteria.

STORMWATER RETENTION RESERVOIR SYSTEM DESIGN CRITERIA AND PHYSICAL DESCRIPTION

Phase IV comprises the receiving body of the closed water management system. The stormwater retention reservoir is separated from the remainder of the District by SR-711 and adjacent property reserved for commercial application.

The stormwater retention reservoir proposed consisted of a 3,507 acre, aboveground reservoir, a low lift pumping station and related appurtenances. Refer to Plate II for the detailed layout of the system. The reservoir involves construction of a compacted earth embankment levee forming the perimeter of the reservoir. The reservoir site is ideally suited for its intended use, being the lowest topographic area in the District. Topographic relief of the contributing drainage area complements the selected reservoir site.

PROJECT DESIGN STORM

The Plan of Reclamation states, “The system is hydraulically designed to remove 2.6 inches per acre in 24 hours. This removal rate is equivalent to the once in 30 year flood, which was deemed satisfactory for urban development.” The amendment to the Plan of Reclamation further defines the design criteria referring to the 30 year design storm hydrograph developed and reported in the U.S. Army Corps of Engineers Survey-Review Report on Central and Southern Florida Project – Martin County, Florida.

This design criteria for the proposed stormwater retention reservoir ensures safe functioning of the closed water management system with respect to the safety and well-being of human life and property which would be served by the system.

RESERVOIR LEVEE DESIGN CRITERIA AND PHYSICAL DESCRIPTION

The reservoir levee is the rolled-fill type constructed from soils available on site in the designated borrow areas. The construction procedure utilizes selctive borrow techniques as determined by core borings in the proposed borrow areas. Densification of the embankment fill matrix is achieved by successively placed and mechanically compacted layers.

Preliminary investigation and planning produced a levee configuration with design top elevation of thirty-two (32) feet mean sea level. Therefore, constructed levee heights would range from approximately ten (10) feet for the west levee of the reservoir to approximately thirteen (13) feet at the southeast corner of the reservoir. Although the concept of complete on-site retention was unusual for a south Florida residential development, the proposed levee height and impoundment depth were not unusual for earthen levee structures. Earthen dams for water conservation and power generation greater than sixty feet in height are not unusual in the southeastern United States.
Design of side slopes to be determined by an extensive program of soil testing and permeability studies was delayed and would be completed in connection with investigation of freeboard requirement based upon wind surge studies. Slope protection and maintenance were all incorporated features.

CONSTRUCTION OPPOSED BY MARTIN COUNTY

The construction program began in September of 1972 with the award of a contract for the construction of Phase I. Martin County sought to stop the construction and by May of 1973 had convinced the State of Florida, represented by the Attorney General’s office, the Trustees of the Internal Improvement Trust Fund and the Loxahatchee River Environmental Control District to join Martin County in bringing suit against Rotonda.
The suit charged Rotonda and a host of individuals and corporations with a variety of activities, which as to Rotonda included constructing a plan inconsistent with its authority, altering the existing sheet flow pattern, fostering salt water intrusion, threatening the water supply of the Loxahatchee River and Jonathan Dickinson State Park and illegally connecting its works to Cypress Creek. Plaintiffs sought to dissolve the District, enjoin construction activity and land sales and force the placement of barriers in all the canals.
With able assistance from the U.S. Geological Survey and many months of effort by the District staff, support from the State in the lawsuit dissolved as the lack of substance in the allegations was revealed. The suit was settled by stipulation of the parties, which Martin County refused to join, and the suit was dismissed with prejudice as to all parties except Martin County.

In essence, the stipulation directed Rotonda to construct its Plan of Reclamation as amended with on-site containment of surface water runoff in the closed system. Rotonda stipulated it would not build the Rotonda City canal system but would use curvilinear canals where possible for aesthetic reasons. Constraints imposed upon the water management system were all in accordance with generally recognized engineering practice and were consistent with the design contemplated by the District Engineer.

QUIET TITLE SUIT

In 1976 the District, having undergone another name change to Pal-Mar Water Management District, was back in court with Martin County again. This time the District’s right to build its impoundment reservoir was at issue as Martin County contended the old Jupiter to Indiantown road known as the Jupiter Grade was still a public road. The issue arose when Pal-Mar barricaded the Jupiter Grade at SR-711 attempting to halt access by trespassers to the interior of the District. As regards Phase IV and the reservoir, Pal-Mar affirmed in its Quiet Title Suit, ownership of the Jupiter Grade and Martin County affirmed a prescriptive easement.

For the District, this meant that the location of a windbreak levee was established at the Jupiter Grade which would preserve access to the extent that the Court had found it legally existing. The cost of maintaining this access for the alignment of the Jupiter Grade was considerable, but it would be offset by a minor reduction in the freeboard required by the reservoir levee to insure safety during hurricane events. Wind tide and wave setup or storm surge are increased when wind fetch, the distance across open water subject to the action of wind velocity, is increased. Division of the reservoir by a windbreak levee positioned along the Jupiter Grade would be consistent with good engineering practice, and by reducing the wind fetch, it reduced the required levee freeboard.

DECLARATORY JUDGMENT SUIT

During 1976, while the District’s construction program was in progress with Phases II and V under contract, Martin County again brought legal action against Pal-Mar. One suit sought a Declaratory Judgment by Judge C. Pheiffer Trowbridge interpreting his order approving the Amended Plan of Reclamation to ban discharge of surface water from Phase III to the St. Lucie Canal through Spillway “H”. The District’s Amended Plan of Reclamation was subjected to interpretation by its author Frederick L. Bell, P.E. and others including former District Engineer H.C. Gee, P.E. and your current District Engineer. Judge Trowbridge ruled in favor of Pal-Mar by confirming the right to drain Phase III to the St. Lucie Canal through Spillway “H”. The decision was accepted by Martin County without appeal.

PERMIT JURISDICTION (ZONING) SUIT

The next lawsuit against Pal-Mar filed by Martin County in July 1976 again sought an’injunction to halt the District’s construction program unless and until Pal-Mar applied for and received permits from Martin County. This lawsuit was tried May 1, 1978 at a time when the present Attorney for the District was not representing Pal-Mar. The unfavorable result which established permitting authority by Martin County over the District brought to a halt the District’s construction program. A motion for rehearing was denied and an appeal confirmed the lower court decision.

Since the date of Judge Rogers’ order on May 25, 1978, every permit filed with Martin County dating back to July 1976 has been denied. The District altered its design criteria to meet published Martin County criteria and resolved small differences with the County Engineer routinely in order to secure permits. However, despite correspondence and testimony of the Martin County Engineer on occasions that the proposed construction met Martin County criteria and guidelines, or was acceptable, after years of delay, all appeals have been denied by the Martin County Commission.

SFWMD AND D.E.R. PERMITS

The effect of Martin County on permitting reaches far beyond its own permit program. Martin County objections to permit applications for Phase III filed with the South Florida Water Management District and the Florida Department of Environmental Regulation have also prevented the District from securing these permits necessary for construction to begin. Although satisfied with design concepts, engineering criteria and environmental concerns, the agencies allow local governments to establish zoning and land use with the local government comprehensive plan and further to interpret whether a water management plan is compatible. In the case of Palm Beach Heights, Martin County consistently held that interim zoning, which absent a clearly defined trend of development is to be considered as R-2, should be interpreted as agricultural. A clear case was made to the contrary by Pal-Mar that the trend of development was residential. This position was adopted by an impartial hearing officer requested by the South Florida Water Management District, but the Findings of Fact and Conclusions of Law presented by this attorney which supported a residential interpretation of the zoning were disregarded. Phase III was approved in concept, but South Florida would not issue a final construction permit unless Martin County changed the Palm Beach Heights zoning or agreed that the interim zoning which existed was characterized by a residential trend.

Faced with Martin County’s permit jurisdiction and their interpretation of Palm Beach Heights zoning, which enabled them to prevent other state agencies from permitting the District’s construction program, Pal-Mar was required to search for a new solution.

THE CLOSED SYSTEM EXEMPTION

On another legal front Pal-Mar was pressing its application before South Florida Water Management District for its Phase III permit during July 1976. South Florida sought to establish the status of the closed water management system for permitting purposes. Under the best circumstances, surface water management permitting is an expensive proposition, but faced with Martin County’s opposition and ability to generate opposition from other sources, the District was again in a dilemma.

The Governing Board of South Florida had earlier established a precedent with “The Viking Decision.” This action refused a surface water management permit on the basis that the proposed water management plan was more sophisticated than was required to meet the zoning regulations of Okeechobee County. Being unable to escape this dilemma as applied to Phase III (which ultimately cost Pal-Mar its Phase III South Florida permit) Pal-Mar adopted the position that Phases I, II, IV and V constituted a closed system. Thus, it was exempt from surface water management permitting as provided by Chapter 373.406(3) F.S. Clearly the concept was a closed system and sophisticated computer modeling proved the system would contain on site its design storm and more.

South Florida, in effect, forced Pal-Mar to request a ruling on the closed system exemption by stating it could not approve the permit pending on Phase III until it was satisfied of the status of the closed system. The required data was generated and submitted to South Florida and the staff concluded sufficient land was set aside for the reservoir to provide self containment for the closed system.

Pal-Mar then asked South Florida for a ruling, and despite objections and delays for an administrative hearing officer to review testimony, the Governing Board on October 7, 1976 found the closed system exempt from permitting. In spite of the ruling, nearly a year later, Martin County requested South Florida to reconsider its position. Pal-Mar’s attorneys were persuasive and cited rules of procedure, fairness and equity and the principal of equitable estoppal. Pal-Mar had acted in reliance upon the District’s decision, spending $275,000 on engineering and construction of the closed system since October 7, 1976. Regardless, the matter was sent before a hearing examiner. His Findings of Fact and Conclusion of Law supported the closed system status.

Nonetheless, Martin County prevailed as the Governing Board, disregarded the skilled attorney’s legal opinion and reversed its position. Pal-Mar appealed to the Governor and Cabinet sitting as the Land and Water Adjudicatory Commission but was unsuccessful. A final appeal to the Fourth District Court of Appeal carried the matter through 1979 and after more than three years, and with the major failure of the Florida Power and Light Company reservoir in Martin County a current issue locally, the appellate court upheld the ruling that the District was not entitled to a closed system exemption from water management permitting.

AD VALOREM TAX SUIT

Another suit by Martin County challenged the tax exempt status of property owned in fee simple title by the District. An issue was $16,059.53 paid in protest by Pal-Mar for 1976, and since combined legal fees and costs perhaps approximated the taxes at issue, the value to Martin County could have been, at most, harrassment. Pal-Mar prevailed in circuit court and the decision was upheld on appeal. Still not satisfied, Martin County petitioned the Supreme Court of Florida for certiorari but was denied.

SABALTON – PLANNED UNIT DEVELOPMENT

While Pal-Mar was struggling with Martin County and accepting that it would have to submit to permitting the entire plan, Palm Beach Heights Development and Sales Corp. decided on a different approach. The long delays in restarting construction, caused by failure of the District to obtain permits and the Palm Beach County Circuit Court injunction, brought legal action from a new front. Individual plaintiffs and a large group of individuals in the name of Orville R. Cester brought a class action suit against Palm Beach Heights for failure to complete the promised road construction and drainage in the time agreed. The specifics of this matter are currently being litigated and are best left for the attorneys in court. Currently the federal bankruptcy action involving Palm Beach Heights has stayed further proceedings in the Cester Suit.

The effect, however, was the birth of a proposal by Palm Beach Heights to upgrade the proposed road construction to meet county standards and change the entire development concept and water management plan. In fact, the proposal was conceived upon a resolution of the Martin County Commission which invited presentation of a Planned Unit.  The resultant proposal was named Sabalton. In order to prepare the Planned Unit Development application for Sabalton, Palm Beach Heights retained consulting engineers, surveyors and land planners and began work. Much of the cost associated with the project was obtained by gaining approval of the Division of Land Sales and Condominiums for release of funds from the Improvement Trust Fund escrowed with the State to insure completion of the improvements.

The project began with a major work effort to have new aerial, stereoscopic photography flown and topographic maps prepared for each section in the District. A portion of this expense was borne by Pal-Mar.

Work involved every phase of community development and planning including soils analysis, ecological assessment, market analysis, land use planning, landscape architecture, traffic analysis, water management, public water supply and wastewater treatment. Planning provided for transportation needs, recreation facilities, open space, surface water retention areas, commercial and professional facilities, government services and housing. Please refer to Plate III.

The water management plan proposed was a radical departure from the Amended Plan of Reclamation. In the Sabalton plan the reservoir in Phase IV was not used. The District was divided into five discrete drainage basins. The area presently connected to Spillway “H” was retained without major change. The balance of the District, or the closed system, became four separate water management basins in incremented one foot steps between water control elevations. The proposed drainage outfall was to be the existing Bankers’ canal serving a federation of developments lying to the east of Pal-Mar.

Stormwater runoff would be collected from lots and roads in a system of road side swales, storm sewers and canal systems routing through multiple retention areas. Land set aside for retention areas was 2,929 acres of wetlands, 1,915 acres of uplands excavated for required fill and the existing and proposed canal system comprising 321 acres.

The water management system provided for much less drainage with control water elevations ranging from 23.5′ MSL at the west boundary to 19.5′ MSL at the east boundary. To provide required road elevations sufficiently above the control water elevation and minimum finished floor elevations 18 inches above the road elevations would require excavation of uplands to create fill. The engineering water management plan and cost estimates for construction and the filling cost have been requested from the lead professional for the Sabalton plan. To date they have not been furnished for our review, and consequently no opinion is expressed.

If the water management plan proposed for Sabalton had a shortcoming, it was in the selection of the outfall and abandonment of the reservoir concept of on-site retention. The Bankers’ canal is over-stressed as it exists, and major flooding and property damage were experienced during 1982. The South Florida Water Management District has stated it would not allow an increase in the drainage area from lands lying to the west. This would seem to preclude connection of the Pal-Mar water management system as proposed in the Sabalton plan.

The initial Sabalton Planned Unit Development application was for 10,778 lots ranging in size from 1/3 acre to 10 acres. Seventy-five (75) percent were 1/3 acre and 1/2 acre and twenty-five (25) percent were one acre and larger. The proposed overall density was one unit per two acres. An application was filed for vested rights with the Martin County Commission to obtain a variance from the designated one unit per twenty acres in the Comprehensive Plan.

Open space and recreation facilities were provided for 31,257 residents. Facilities were provided for golf, picnicing, swimming, jogging and an endless variety of court and field sports. Playgrounds, nature trails and support facilities were also provided.

Wet prairie ponds were identified by soil type and preserved including perimeter uplands for retention areas. Much of the existing Pal-Mar canal system was to be incorporated in the Sabalton plan. Other canals were to provide connection to the Loxahatchee River to the east.

The Martin County Development Review Committee raised numerous objections to the Sabalton application principally on the basis of density, and negotiations ensued for lower project density. The Planned Unit Development application was radically revised by Palm Beach Heights in concept to provide for a clustering of 9,500 residential units in Phases II and III. The concept included donation of Phases I and V (constituting some 9000 acres) as a wilderness preserve in perpetuity. Another revision was proposed by Palm Beach Heights which provided for 8,500 residential units, some industrial acreage and 9,000 acres of wilderness preserve. In response, the Martin County staff indicated the possibility of approving 7,500 dwelling units. Faced with having to provide lots for 8,500 purchasers, Palm Beach Heights requested a workshop session with the Martin County Commission to attempt to reconcile the relatively minor difference in density. When Martin County refused to hold a workshop, the applicant concluded that Martin County was not serious in its efforts to address and resolve the problems of Palm Beach Heights.

From the Sabalton plan, your District Engineer will utilize as much raw data and work product as is feasible. Certainly the aerial photography and topography are a valuable addition to the District’s records. Review of the wetlands delineation is necessary to insure this work will be accepted by the agencies.

VESTED RIGHTS SUIT

When Martin County adopted its Comprehensive Plan, the Palm Beach Heights land was designated for agricultural land use with allowable density of one unit per twenty acres. Obviously, the eight thousand plus lot purchasers could not be accommodated in Palm Beach Heights under these circumstances. The Sabalton Planned Unit Development application was accompanied by an application for vested rights to be considered as R-2 under the interim zoning which had existed. The Martin County Commission denied vested rights to Palm Beach Heights.

In the ensuing litigation the plaintiff, Palm Beach Heights Development and Sales Corp. sought to establish that the Comprehensive Plan was not properly and legally adopted. The action also questioned if the Comprehensive Plan was based upon sufficient and rational information to constitute a sound, comprehensive land planning document upon which community growth could be based. The Court found in each instance answers in the affirmative. Lastly, the suit questioned whether the classification of the plaintiff’s land was, at a minimum, fairly debatable. In delivering its decision, the Court summarized the evidence and law and presented conclusions. The Court found the agricultural designation, at a minimum, at least fairly debatable. It also noted it was at least debatable that it was a proper classification. Next, the Court expressed doubt that a rational person would make any conclusion other than Palm Beach Heights was properly classified in the Comprehensive Plan. Finally, the Court acknowledged there may be room for doubt, but certainly there was no conclusion that agricultural zoning was an improper or incorrect zoning for Palm Beach Heights. These four conclusions have been carefully abstracted from a transcript of the proceedings and follow one after the other.

An appeal has been taken by the Plaintiff and the matter must be resolved by the attorneys in the appellate court. The outcome will have a pronounced impact upon future plans for development.

TIME OF DECISION AND A NEW COURSE OF ACTION

The Board of Supervisors is charged with the responsibility to implement a – Plan of Reclamation to enable development and use of the land in the Pal-Mar Water Control District. As has been the case before, it appears that sufficient doubt has been identified as to whether the current, Amended Plan of Reclamation can be permitted and constructed under the framework of laws, ordinances and rules now existing and under the present zoning applied to the project.

The Sabalton Plan, for all its merit, has not been accepted by Martin County and thus cannot be adopted by Pal-Mar. Consequently, the Board of Supervisors has directed its staff to evolve a new plan for consideration by the Board. The first action was selection of a new District Engineer through application of the Consultants Competitive Negotiations Act. The firm of Jeffrey C. Fawsett, P.E., Consulting Engineer, Inc. was selected and engaged.

The Board’s direction to develop a new Plan of Reclamation and obtain approval thereof, and all required permits from the regulatory agencies with competent jurisdiction, was explicitly stated in the public notice seeking qualified consultants for the position of District Engineer.

Study was begun by the District Staff of applicable laws and ordinances of the United States, Florida and local governments, and the rules and regulations of permitting agencies which have jurisdiction over Pal-Mar. This work has shown that the new plan must comply with regulations and criteria established by, at least, the U.S. Army Corps of Engineers, the South Florida Water Management District, the Florida Department of Environmental Regulation, Martin County and Palm Beach County.

A complete review of the previously adopted Plan of Reclamation and its first and only amendment has been underway for several months. Review, of necessity, includes assessment of the existing and proposed construction; maintenance of completed works; status of existing permits and those applied for; current legal and administrative proceedings which have a bearing upon the plan and its revision; land rights existing and those necessary for future construction; legal, administrative and fiscal constraints which have been imposed by history; and current permitting constraints. For a project with a seventeen year history, the task is such that it must be spaced over a considerable time period and high priority items attended to first.

MAINTENANCE

An early, high priority item assigned by the Board was attention to maintenance of the existing improvements which had been neglected for almost three years. Emergency construction was completed under the direction of the new District Engineer in November of 1984. Maintenance work began under contract in January of 1985 which is nearing completion at this date. Because the prior maintenance program had been unsatisfactory, the Board executed an agreement of mutual release with its former District Engineer in consideration of the receipt by the District of the sum of ten thousand ($10,000) dollars. Your current District Engineer has given top priority to maintenance to restore the improvements to a proper condition.

CONCEPTUAL PLANNING

The task at hand is to evolve a new plan which can be permitted and constructed and which will provide maximum benefit to the landowners. In the balance is the matter of allowable density which may hinge on the appeal of the Vested Rights Suit. There are sufficient legal uncertainties concerning current litigation to suggest development density could be changed as the courts decide suits and appeals now pending. As the Court decision stands, the plan must be consistent with the agricultural land use imposed by the Martin County Comprehensive Plan. One unit per twenty acres in Martin County and one unit per five acres in Palm Beach County will accommodate but a fraction of the lot owners today.

A plan which includes the maximum allowed dwelling units and another profitable land use is desired. History has repeated the cycle of an initial agricultural land use followed by a higher intensity land use as economic demand and land use restrictions are balanced to bring change.

Recent record freezes in December 1983 and January 1985 have acted to push citrus developments further south to land not previously considered valuable for citrus. Martin County and Palm Beach County are both important parts of the state-wide agriculture picture today and will remain so for the immediate future. Beef and dairy cattle herds, citrus and various row crops are possible land uses under existing land use constraints.

THE NEW CONCEPTUAL PLAN

An initial, new concept plan has been developed and depicted in Plate IV. Its current state does not warrant hydrologic studies to detail a water management plan and construction cost estimates at this time. It is intended as a tool for study of alternatives to meet the needs of the landowners. The Board of Supervisors has recognized that it is advantageous to develop a Plan of Reclamation that provides for different land uses, assessment of differential benefits to accrue over the District and the cost of development in accordance with benefits. Thus the Board passed a resolution unanimously which directed the attorneys to prepare legislation which will divide the District into units of development. This legislation has been filed previously and is, at this writing, unopposed.
The concept embraces three separate water management systems. Elements of the plan which are fixed include all of the existing canals and levees. Of necessity, the balance of the proposed perimeter levee is fixed. The proposed open system for Phase III remains largely unchanged. Right of way for the interior canal system exists presently. It has previously been permitted by South Florida Water Management, in concept, and needs but compatibility of the land use, water management plan and zoning to secure a construction permit. A previous application for a permit from the Florida Department of Environmental Regulation was withdrawn when essentially the only hurdle to clear was the same compatibility test. The open system has legally established the right to discharge to the St. Lucie Canal and a U.S. Army Corps of Engineers Nationwide Permit was confirmed on September 19, 1978.

The former closed system of Phases I, II, IV and V has been substantially altered in the initial, new concept. Two separate aboveground, stormwater retention reservoirs are proposed. The Basin One Reservoir is located in Phase IV but is substantially diminished in size. Two square miles of the former reservoir in Palm Beach County are released for development. The Jupiter Grade must be addressed, but if Martin County receives this proposal in a spirit of cooperation, perhaps the old roadway, which has served no public purpose for many years, can be abandoned. The drainage area for Basin One is depicted in Plate IV and is reduced by deleting most of Phase II. The two Palm Beach County sections south of the reservoir join the new drainage area. The canal system is existing and will be unchanged in Phase I. Curvilinear, lateral canals will be proposed to serve the drainage area in Phase V. The existing main canal collector system, although now more than required for hydraulic capacity, will remain as existing and provide more retention area in the system.

Basin Two comprises most of Phase II and is served by a far smaller reservoir located entirely in Martin County. Minor reworking of the existing canal system is necessary for stormwater collection and relocation of the basin limits. The presently existing land rights for the west, southwest and south perimeter levee will be utilized for their intended purpose of isolating the three separate drainage basins from encroachment of outside surface water.

Current thinking expressed by the South Florida Water Management District and others concerned with water supply to the Loxahatchee River can bring about a symbiotic relationship between Pal-Mar and the Loxahatchee River Basin. Recent events concerning the Bankers’ canal which serves a federation of projects lying east of Pal-Mar has shown the canal is over stressed. At first investigation it would seem no further flow would be accepted from the drainage area lying to the west.  Through protracted meetings with representatives of the plaintiffs in the State of Florida v. Pal-Mar suit, summarized at page 5, your current District Engineer delivered over and over the message that on-site containment would reverse the pattern of over drainage created by the numerous neighboring agricultural and residential projects with positive outfall to tidewater. Now that the Loxahatchee River is recognized as being stressed for groundwater recharge, a plan which will impound water in the upper Loxahatchee River Basin should be recognized as exceptionally valuable. The South Florida Water Management District has previously expressed its interest in a sheet flow interceptor levee being built on the east boundary of Pal-Mar to prevent water from entering the Bankers’ Canal in the wet season. This idea was disposed of by the persistent objections of Martin County.

The Basin One and Basin Two reservoirs must be provided with an outfall to furnish the degree of protection currently required. The size and cost of both reservoirs for storage volume will be less since impounded stormwater will pass through the Loxahatchee River Basin long after the storm peak discharge has subsided in the lower basin. Impounded surface water becomes a valuable resource under these circumstances, but one which is costly, since Pal-Mar must pay a premium to construct the costly water management system and continue to expend funds on energy to pump the system.

It is therefore appropriate to investigate public funding available to the South Florida Water Management District for enhanced water supply construction, and public funding from interests in the Loxahatchee River Basin to offset the cost of pumping the water supply which is vitally necessary to the well-being of the Loxahatchee River Basin hydrocycle.  It is hopeful today that Pal-Mar, having chosen to develop, so far as possible, within the confines of land use criteria imposed by Martin County, will be treated favorably in its requests for permits. Groundwater recharge from the proposed, impounded water supply has always been an asset to the plan. Now the prospect of releasing excellent quality surface water, reduced in nutrients and virtually absent any suspended solids, should be a welcome addition to the Loxahatchee River Basin.

SFWMD CONSTRAINTS ON THE PLAN

Pal-Mar will fall under the jurisdiction of the South Florida Water Management District and must secure permits for management and storage of surface waters and any water supply withdrawal from South Florida project canals. Numerous design criteria must be established and addressed to obtain permits from the District. At the top of this list is the design and construction of the two aboveground, stormwater impoundment reservoirs. Following the failure of the Florida Power and Light Company’s cooling water reservoir for the Seminole Plant on October 30, 1979, much new attention has been focused on similar structures.

It will be necessary for Pal-Mar to secure a legal outfall for each reservoir to provide for emergency discharge should conditions warrant. It is thought a reasonable maximum design depth must be four feet above average natural ground. The reservoir must be sized to contain surface water runoff from the 3-day, 25-year event for the proposed agricultural use. The design will incorporate a backflow structure so impounded water can be released back into the pumped basin should the design stage be violated.

Adherence to these basic criteria provides numerous positive benefits to the landowners. Incorporation of a positive outfall allows the usable land area set aside for the reservoir and cost of the surrounding levee to be minimized. The ability to release impounded water back into the pumped drainage area will greatly benefit crop irrigation. Agriculture is served by the public water supply of the South Florida Water Management District. Competition for permits to withdraw water is a concern, and the presence of a private water supply will benefit the landowners and the Loxahatchee River Basin.

The water management system must incorporate certain criteria related to groundwater recharge. South Florida will allow the watertable to be lowered no more than 6 feet below the highest natural ground, but such lowering cannot adversely affect the rights of others. Pal-Mar has stipulated with the State of Florida and others that its water management plan will operate to maintain the watertable no more than four feet below average natural ground so long as an impounded water supply is available. The design criteria must preserve fresh water as a valuable natural resource. The characteristics of groundwater recharge and the environmental values of the site must be respected.

South Florida will allow small, isolated wetlands to be destroyed where mitigation is employed. Selection of the reservoir sites and design stages should be such that the impoundment of surface water will mitigate limited destruction of wetlands were necessary through creation of new wetlands. Present wetlands in the reservoir will have increased water depth and some areas will be converted to open freshwater marsh, also a valuable environmental asset. Both reservoirs will add valuable freshwater habitat to the area.
In general, South Florida is not in favor of significant lowering of the groundwater table for a residential development because it increases the demand for an irrigation water supply for lawns and maintaining lake levels at pre development levels. There should be sufficient area in Phase III to cluster most or all of the development allowed by the comprehensive plan from land owned or sold by Palm Beach Heights Development and Sales Corp. without major alteration of the watertable. The allowable development is one unit per twenty acres in Martin County. The concept will address the location of development by other major landowners when planning is completed. The units of development legislation will allow increased flexibility in the timing of planning and construction.

In Phase III, a study will investigate the value of restoring the groundwater table in the over-drained areas in the northern environs. Limited lowering of the groundwater table further south will be necessary to allow development. The Basin Two reservoir will be considered for a source of water supply in this area.

Since part of the District is characterized by isolated and interconnected wetlands, study will reveal the best combination of maintaining a stable water supply for some of the wetlands and mitigation through creation of new wetlands where others must be disturbed. The effect of the water management system on the wetlands must be established through groundwater modeling.

South Florida will look to the local governments to insure the proposed land use is compatible with existing zoning or land use designated in the local government comprehensive plan. Permits will not be issued unless this matter is addressed and resolved to the satisfaction of the local government.

D.E.R. CONSTRAINTS ON THE PLAN

The Florida Department of Environmental Regulation will have jurisdiction over the wetlands in Pal-Mar and the provisions of Chapter 403 F.S. will apply as amended by the Wetlands Protection Act of 1984. The Department is concerned with preservation of air and water quality and will regulate surface water quality in Pal-Mar through its Dredge and Fill Permitting Program.

Criteria for issuance of permits are based upon a two-part permitting test that requires the applicant to assure, first, that applicable water quality standards will not be violated. Secondly, the applicant must meet the public interest test which requires reasonable assurance that the project will not be contrary to the public interest. Should surface water discharge be such that it significantly degrades water quality, a demonstration that the project is clearly in the public interest will be required.

If, under unforeseen circumstances, Pal-Mar is unable to meet the above criteria, the Department will consider mitigation measures proposed by Pal-Mar or others which are acceptable to Pal-Mar both as to water quality enhancement and evaluation of the project as a whole.

A balance of residential development, meeting local zoning and the comprehensive plan land use designation, and agricultural development consistent with other south Florida agricultural pursuits and market demands should be found, not in violation of the public interest, but clearly in the public interest. To be sure, the opposition will not agree with this statement, but the Department has criteria defined by which it will evaluate public interest. Further the Department has stated a project that otherwise meets Department criteria will not be denied a permit because of local opposition.The work to create the proposed plan will carefully evaluate the effect upon wetlands, design to minimize adverse impact and delineate suitable mitigation measures to meet Department criteria for issuance of Dredge and Fill Permits.

Since permitting a new Plan of Reclamation is a multi-agency endeavor, and not all permits can be assured of issuance at one time, Pal-Mar will be welladvised to consider an extended permit life as provided by statute. In general, a permit issued by the Department will be valid for a period not to exceed ten (10) years. However, permits can be issued for a life of up to twenty-five (25) years under certain circumstances.

It has been mentioned elsewhere that Pal-Mar can coexist in a symbiotic relationship with the Loxahatchee River Basin through impoundment and delayed release of stormwater. Delayed releases will augment the freshwater supply and abate salt water intrusion in the lower basin. The Department will adopt rules after July 1, 1985 which will provide for the use of wetlands for treatment of domestic wastewater effluent that has received at least secondary treatment. Study of the two impoundment reservoirs and any system of interconnected wetlands could produce further public benefit through the controlled introduction of treated wastewater effluent for circulation through designated water courses in the system.

If one or more of the three separate water management systems proposed will serve an agricultural function only, it will be exempt from the provisions of the Wetlands Protection Act of 1984. This would cover any agricultural water management system permitted by the South Florida Water Management District pursuant to Chapter 373 F.S. or any exempted thereby from permitting.

MARTIN COUNTY CONSTRAINTS ON THE PLAN

Martin County has established permit jurisdiction over the Pal-Mar Plan of Reclamation by virtue of a suit litigated in the Palm Beach County Circuit Court and decided seven years ago. Numerous permit applications have been filed with the County Engineer and all have been denied either by the direct instruction of the County Commission or by action of the County Attorney or the County Engineer. Appeals have been filed and pursued before the County Commission, but all have led to a refusal to issue any permit. It is this permitting jurisdiction which constitutes a serious impediment to completing any new Plan of Reclamation.

The rules and ordinances of the federal and state agencies have been promulgated with the goal of regulating development in such a manner that the private property rights of those engaged in agriculture and residential develop ment can coexist with the environment. Firm controls balance environmental preservation, public interest and the capitalistic free enterprise system. Application of public interest tests, certain exemptions for agricultural development, provisions for mitigation of development impact on wetlands and delegation of permitting authority to local jurisdictions all act to promote a workable blend of competing interests.

A review of Martin County ordinances and the comprehensive plan indicates that there is not the usual balance between private property rights and environmental preservation. This report and its conclusions apply to land within the Pal-Mar Water Control District. While it appears a plan of development is feasible and will meet other agency controls, this does not seem to be possible under Martin County constraints.

At this writing, our opinion is that the Martin County Comprehensive Plan effectively prevents economically feasible development of property which contains an appreciable percentage of wetlands dispersed throughout the site. The comprehensive plan permits no development activity in a wetlands area unless the Soils Potential Study of the Martin Soil and Water Conservation District indicates soils have characteristics supportive of development and the area no longer serves as a functioning wetlands. As an example of non-functioning wetlands, numerous surface depressions adjacent to the St. Lucie Canal, deprived of their natural watertable for most of the period since its construction in 1933 would probably qualify for development. Martin County will ask for a wetlands survey with their involvement to establish what areas are presently wetlands, and of those what areas still function as wetlands.

Historically, Martin County has allowed no mitigation for destruction of wetlands except under circumstances which will prove inconsequential for Pal-Mar. Limited construction across or through wetlands can be allowed where necessary for riparian access, or where the applicant shows no vehicular access is available to his property through uplands. On existing parcels of record where there is insufficient upland area to allow any reasonable use of the property, one single family home can be allowed subject to restricting conditions.

Having no stated or published criteria for consideration of the public interest or provisions for mitigation where a project must disturb wetlands, Martin County is out of harmony with the state and federal agencies which will regulate development within Pal-Mar.

Already mentioned is the designation of the Palm Beach Heights property for agricultural use in the comprehensive plan which restricts density to one dwelling unit per twenty acres. An early conclusion of your staff was that the new plan must comprise a predominately agricultural development. Providing a lot or dwelling unit or some acceptable alternative for some eighty-five hundred lot purchasers is of significant concern, but beyond the authority of the District. This duty belongs to Palm Beach Heights Development and Sales Corp. The allowable number of dwelling units established for the land within Martin County is subject to density transfer restrictions in the comprehensive plan. The constraints on density transfers will impact Palm Beach Heights significantly. The request for a transfer of density from the wetlands to the upland development area must be submitted as a Planned Unit Development.

There are several empirical formulas which govern density transfers which as written are somewhat difficult to interpret. Density Transfer, Section IV, sub-paragraph 2.a) states, “The gross residential density of the upland property is equal to or less than two times the gross residential density of the entire parcel.” This would seem to state once a density transfer has occurred on land restricted to one dwelling unit per twenty acres (1:20), the resultant upland density could not exceed one dwelling unit per ten acres (1:10). If so, this would not restrict transfers unless the upland area comprises less than fifty (50) percent of the property. Sub-paragraph 2.d) states, “Density transferred is less than or equal to 1/2 (wetland acreage x gross density).” Mr. Harry King of the Martin County Planning Department reported this provision restricts transfers from a wetlands area to fifty (50) percent of the gross allowable density. The result is harsh and would allow one dwelling unit per forty acres (1:40) to be transferred from a wetlands area to the upland remainder. Although reason would not support a further restriction, transfers from one upland area to another may be subject to the same fifty percent loss of allowable dwelling units.
Two remaining formulas ensure density transfers will not provide a net gain in dwelling units, and the resultant density in the upland remainder will not exceed 15 dwelling units per acre. Neither will affect Pal-Mar.

Some criteria parallel that of the South Florida Water Management District which arises from the recognition that the resources and technical expertise in water management at South Florida are superior to that of Martin County. Depth of impounded water in the two aboveground reservoirs, incorporation of a positive outfall, a plan for operation of the water management system and concern for the level of protection in the pumped basins all reflect South Florida Water Management District policy and criteria. These will all be satisfied by the necessary permits for management and storage of surface waters.

Perhaps of greater concern is the Martin County Flood Prevention Ordinance. Section 14-6, General Requirements establishes the nature of development activities which shall be reviewed under the ordinance before construction begins. This includes many activities necessary to complete any Plan of Reclamation for Pal-Mar including construction or alteration of dams, levees and water management facilities in addition to clearing, excavating, filling and grading. It establishes a review process and states that an application for any other county development permit will constitute an application for a permit under this ordinance. The County Engineer must certify that a project is in compliance with the ordinance prior to issuance of a permit. The ordinance provides for submittal of routine information with the application. It further provides for submittal of additional information if by appearance the development has significant potential:
(1) to cause damage by flooding,(2) to cause damage as a result of flooding,(3) to significantly alter the velocity, level, direction, frequency or quality of surface waters, or(4) to have a significant adverse impact on a wetland (area), watercourse, water body or the groundwater table.

The list of information which may be requested is quite inclusive and subject to the discretion of the County Engineer. In fact, considering previous requests by the Martin County staff for information or studies in connection with the District’s Phase III South Florida Water Management District permit, the discretion given is potentially so subject to abuse that securing a permit under the ordinance for a new Plan of Reclamation could be an economic impossibility for Pal-Mar.

The ordinance further provides twelve pages of general and specific standards for the review of development as a guideline for the County Engineer. The standards could be applied strictly to a development to deny an application.  For example, the ordinance requires, “Discharge from the site after development shall have approximately the same rate of flow, volume, timing and quality as runoff that would have occurred following the same rainfall under predevelopment conditions.” This provision, if strictly applied, could deny approval of the proposed on-site impoundment concept which will be so beneficial to the lower Loxahatchee River Basin.

As with other ordinances, appeal of action by the staff is taken before the County Commission. Variances are provided for in the ordinance, but are realistically available only under extreme conditions which would include a mutually cooperative relationship with the County Commission.

It is appropriate to examine the stated purpose and objectives of the ordinance to form an opinion as to whether it is likely Pal-Mar will secure a permit without further litigation. Over the span of three pages the ordinance expresses the recurrent theme that flooding is a natural phenomenon and floodprone lands are a desirable part of the regional hydrocycle for groundwater recharge, stream baseflow, surface water storage, water quality enhancement, erosion control and as habitat for fish, wildlife and plant communities. It is further stated that development of flood-prone lands subjects human life to unreasonable risk of injury and roads and utilities to damage, requires expensive government-financed public works for flood control, degrades water quality and property values and interrupts the natural storage and flow of surface waters. Martin County considers seasonally inundated land to be flood-prone, and the Pal-Mar property is, in fact, seasonally inundated in wetland areas naturally, and other areas by the influence of development and construction. Several parts of the purpose and objectives language appear appropriate for application to property in the recognized flood plain of a river basin where swift, rapidly rising flood stages would present a true danger to human life and inappropriately located private and public property. Conversely, the Pal-Mar property is similar in all important characteristics to adjoining property already developed for agriculture and residential purposes. It can be developed for both these purposes in accordance with federal and state regulations with appropriate mitigation.

However, we recognize the distinct probability that if the Martin County Commission is opposed to any development at Pal-Mar, the Martin County Flood Prevention Ordinance (Chapter 14) will provide the framework to deny a permit.

US ARMY CORPS OF ENGINEERS CONSTRAINTS ON THE PLAN

The Corps of Engineers has regulatory powers arising from Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Federal Water Pollution Control Act Amendments of 1972. Section 10 of the Rivers and Harbors Act of 1899 was the first means by which the Corps regulated dredge and fill activity which would constitute an obstruction to navigation. The extent of jurisdiction was gradually expanded to include waters of the United States that traditionally had not been deemed navigable. Today, Section 404 of the Federal Water Pollution Control Act Amendments of 1972 provides the Corps jurisdiction over dredge and fill activities in all waters of the United States.
As early as 1978 the Corps had expressed interest in jurisdiction over the closed system (Phases I, II, IV and V). Although no action was taken at the time, and the construction completed earlier was not made an issue, the Corps has more recently asserted jurisdiction over construction by a private landowner in Phase V.

Much of the work contained in the new plan will be regulated by the Corps of Engineers. Dredge and fill activities to create structures, canals and swales; levee construction; development fills for roads and other construction and any excavation in or discharge of dredged fill into wetlands or waters of the United States will be regulated.  The Corps of Engineers recognizes mitigation of damage to wetlands, where necessary, as a proper element of the regulation of development. Care will be necessary to coordinate any proposal for mitigation among the Corps of Engineers and the two state agencies involved to ensure differences in their regulatory programs regarding mitigation are adequately addressed. With proper care and design of facilities to avoid adverse impact upon wetlands and with mitigation where necessary, Pal-Mar should be able to obtain permits. Martin County will be able to comment on any application filed with the Corps of Engineers, but our earlier experience has been that the County was unable to dissuade the Corps from confirming a Nationwide Permit for Phase III.

CONCLUSIONS

Over the span of seventeen years, Pal-Mar has engaged in a continuous effort to implement a Plan of Reclamation which would serve its landowners. More than eighty-five hundred individual lot owners and several corporate landowners are dependent upon Pal-Mar and Palm Beach Heights to provide drainage and roads, respectively, to restore the value in their investments. For the entire history of the project, Martin County, through its Board of County Commissioners, has opposed the development. Although often not successful in its attempts to prevent progress, Martin County has prevailed in the key litigation necessary to halt construction. Martin County permit jurisdiction over Pal-Mar was established in the Palm Beach County Circuit Court, and a refusal by the Board of County Commissioners to grant any permit requested has been the greatest single impediment to development. During the preceding seven-year period, while Pal-Mar has been enjoined from further construction without a permit from Martin County, the Board of County Commissioners has adopted a land use plan pursuant to the Local Government Comprehensive Planning Act of 1975 and ordinances which have tightened control and imposed further constraints on Pal-Mar.

Earlier stated opposition to the construction of graded roads by Palm Beach Heights has escalated, by appearance, to become opposition to any residential development. Denial of vested rights for Palm Beach Heights and a refusal to approve the Sabalton Planned Unit Development, in which the County expressed interest, has convinced some that Martin County will never give its approval to any development.

The Board of Supervisors directed the preparation of a new Plan of Reclamation at the time when it appeared that current constraints on the present Amended Plan of Reclamation had prevented its completion. Legislation dividing the District into units of development will be a valuable tool to allow different land uses and assessment of differential benefits. The direction of the Board has been to attempt to meet all applicable laws and ordinances of the United States, Florida and local governments enforced through their various regulatory agencies. The Board also directed that if it was concluded by Staff that certain constraints were encountered that would prevent any reasonable development, this should be reported to the Board and further direction requested.
We have concluded that ample latitude exists in the regulatory programs of the United States and the State of Florida to enable feasible development of the property to a mixture of agricultural crops and residential uses.  We do not anticipate unreasonable constraints or restrictions will be experienced in permitting the development through Palm Beach County. Further study by others would establish the nature of agricultural development based upon demand and other factors beyond the scope of this report.
With the assistance of the attorneys for the Board of Supervisors, we have investigated constraints imposed by the Martin County Comprehensive Plan and ordinances including the Flood Prevention Ordinance and the existing Excavation and Fill Ordinance. We have concluded that these constraints are sufficiently harsh to prevent a feasible agricultural development as directed by the prescribed land use of the comprehensive plan. To reach this conclusion, we have called into focus the combined experience, spanning more than a decade, by the District Engineer and the attorneys for the District in negotiating and litigating with Martin County. Consideration has been given to the experiences of Palm Beach Heights Development and Sales Corp. in their separate affairs involving Martin County.

We have concluded the District must seek relief from certain constraints, notably the provisions regarding wetlands in the comprehensive plan. Further, we believe that it will be necessary to seek the assistance of the Circuit Court to obtain the approval of Martin County for construction once the District has complied with its published criteria. Pal-Mar has previously filed a suit which seeks to obtain County approval of construction already completed and other construction proposed and formerly permitted in concept as directed by the Circuit Court.

RECOMMENDATIONS

The Staff has identified sufficient constraints unique to Martin County to support the conclusions and recommendations herein. The District must attempt to address all concerns before seeking relief through negotiation or litigation. We recommend that the Board of Supervisors review this report and conduct such discussions as are appropriate during the Annual Landowners Meeting and the regular June 1985 meeting of the Board. During this process, we request the Board assign to Staff the task of preparing a resolution for consideration and adoption at a subsequent meeting which would address the concerns of Pal-Mar and its landowners with certain constraints imposed by Martin County. The resolution would identify those constraints which are significantly harsh or at variance with the established regulatory processes of other local, state, and federal agencies, and it would define action necessary to obtain relief.

The purpose of this report and the goals established by the Board of Supervisors have been to identify a framework within which the District could devise a new Plan of Reclamation. The plan must afford reasonable, economically feasible development of the property within the zoning and other land use restrictions imposed. Where this is not possible, the District must seek relief by changing those constraints through any means available.