09-001204GM Patricia D. Curry, Alexandria Larson, Sharon Waite, And Patrick Wilson vs. Palm Beach County, Florida And Department Of Community Affairs Status: Closed Recommended Order on Wednesday, October 21, 2009.

Summary: Petitioners failed to prove beyond fair debate that the challenged comprehensive plan amendments are not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA D. CURRY, ALEXANDRIA )

LARSON, SHARON WAITE, AND )

PATRICK WILSON, )

)

Petitioners, )

)

vs. ) Case No. 09-1204GM

)

PALM BEACH COUNTY, FLORIDA AND )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents, )

)

and )

)

COCONUT NORTHLAKE, LLC, )

NORTHLAKE GROUP, LLC, AND )

RICHARD J. SLUGGETT AND )

PANATTON DEVELOPMENT COMPANY, )

LLC, )

)

Intervenors. )

)

RECOMMENDED ORDER

The final hearing in this case was held on August 17-21,

2009, in West Palm Beach, Florida, before Bram E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners: Patricia D. Curry, pro se

12390 59th Street North

Royal Palm Beach, Florida 33411

Alexandra Larson, pro se

16933 West Harlena Drive

Loxahatchee, Florida 33470

Patrick Wilson, pro se

3848 Cypress Edge Drive

Lake Worth, Florida 33467

Sharon Waite, pro se

15058 75th Place North

Loxahatchee, Florida 33470

For the Department of Community Affairs:

Richard Shine, Esquire

Department of Community Afairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-7018

For Palm Beach County:

Amy Taylor Petrick, Esquire

Palm Beach County Attorney’s Office

300 North Dixie Highway, Suite 359

West Palm Beach, Forida 33401

For Coconut Northlake, LLC, Northlake Land Group LLC, and

Richard Sluggett:

Gary K. Hunter, Jr., Esquire

Vinette D. Godelia, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

For Panattoni Development Company, LLC:

Dale Alan Bruschi, Esquire

Ruden, McClosky, Smith, Schuster

& Russell, P.A.

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether the amendments to the

Palm Beach County Comprehensive Plan adopted by Ordinances 2008-

048, 2008-049, and 2008-050 are “in compliance,” as that term is

defined in Section 163.3184(1)(b), Florida Statutes (2008). 1 /

PRELIMINARY STATEMENT

On December 3, 2008, Palm Beach County adopted three

amendments to its Future Land Use Atlas through the passage of

Ordinances 2008-048, 2008-049, and 2008-050. The amendments

change the future land use designations for three parcels of

land. On February 10, 2009, the Department of Community Affairs

issued its Notice of Intent to find the amendments “in

compliance.”

On February 27, 2009, Petitioners Patricia Curry, Sharon

Waite, Alexandria Larson, and Patrick Wilson, filed a Petition

for Administrative Hearing, challenging the Department’s

compliance determination. They were subsequently granted leave

to amend their petition.

Coconut Northlake LLC, and Northlake Land Group, LLC

(hereinafter collectively referred to as “Northlake”), Richard

Sluggett, and Panattoni Development Company, LLC (Panattoni)

were granted leave to intervene. Sluggett and Northlake

demanded an expeditious hearing pursuant to Section 163.3189(3),

Florida Statutes.

At the beginning of the final hearing, Petitioners moved to

amend their petition again to include a claim that the

amendments are inconsistent with the Strategic Regional Policy

Plan of the Treasure Coast Regional Planning Council. Leave to

amend was granted, but Petitioners were limited to presenting

evidence on the matters addressed in the Planning Council’s

official comment letter.

At the final hearing, Panattoni filed a motion in limine to

exclude Petitioners’ expert witness, Dr. Edward Petuch. The

motion was denied, but Dr. Petuch’s testimony was limited to the

opinions that he disclosed at his deposition.

At the final hearing, each Petitioner spoke on his or her

own behalf and presented the testimony of Rosa Durando, Lorenzo

Aghemo, George Webb, Jay Foy, and Dr. Edward Petuch.

Petitioners’ Exhibits 9, 17, 19, 20, 41, 44, 45, 48, 50, and 51

were admitted into evidence. Petitioners were allowed to

proffer composite Exhibit 37.

The County presented the testimony of Erin Fitzhugh, Sussan

Gash, and Allan Ennis. County Exhibits 1 through 4, 6a through

6o, 7, 8, 9a through 9c, 11 through 15, 17, 18, 19a through 19o,

20a through 20o, 21 through 37, 38a through 38o, 39a through

39o, 40 through 61, 62a through 62f, and 63 through 83.

The Department participated in the examination of witnesses

but did not present witnesses or exhibits.

Sluggett testified on his own behalf and presented the

testimony of Roger Wilburn, Bob Bentz, and Dr. Rick Warner.

Sluggett Exhibits 7, 8, 12, and 20 were admitted into evidence.

Northlake presented the testimony of Roger Wilburn, Bob

Bentz, and Dr. Rick Warner. Northlake Exhibits 7, 8, 11, 20,

and Rebuttal Exhibit 1 were admitted into evidence.

Panattoni presented the testimony of Sam Pinson, Dodi

transcript.) Panattoni Exhibits 1 through 6 were admitted into

evidence.

The nine-volume Transcript of the hearing was filed with

DOAH. The County, Sluggett, Northlake, and Panattoni filed

proposed orders which were carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the state land planning agency and has

the statutory power and duty to review amendments to local

comprehensive plans and determine whether the amendments are “in

compliance,” pursuant to Section 163.3184, Florida Statutes.

2. The County is a political subdivision of the State and

has adopted a comprehensive plan that the County amends from time

to time pursuant to Section 163.3187, Florida Statutes.

3. Patricia Curry, Alexandria Larsen, and Sharon Waite own

property and reside in Palm Beach County. They made comments to

the County regarding the three amendments during the period of

time beginning with the transmittal hearing for the amendments

and ending with the adoption of the amendments.

4. Patrick Wilson owns property and resides in Palm Beach

County, but he presented no evidence at the final hearing to

show that he made comments to the County on any of the

challenged amendments.

5. Sluggett is the owner of the parcel that is the subject

of the amendment adopted by Ordinance 2008-050 (“Sluggett

Amendment”). He resides in Palm Beach County on the land

affected by the amendment.

6. Coconut Northlake LLC and Northlake Land Group LLC are

Florida corporations with their principal place of business in

Palm Beach County. Coconut Northlake LLC is the owner of the

property that is affected by the amendment adopted by Ordinance

an option to purchase the property.

7. Panattoni is a Florida corporation that entered into a

contract in 2006 to purchase the property affected by Ordinance

2008-048 (“Panattoni Amendment”). Panattoni was the applicant

for the Panattoni Amendment. After the application was filed,

Panattoni transferred its rights and obligations under its

contracts, including the contract to purchase the Panattoni

Property, to Panattoni Development Company, Inc.

The Amendments

8. Ordinance 2008-50 (“Sluggett Amendment”) would change

the future land use designation of a 64.48-acre parcel located

at the northwest intersection of Southern Boulevard and Seminole

10 (one dwelling unit per 10 acres) to Commercial-Low/Rural

Residential 5 (one dwelling unit per five acres).

9. Ordinance 2008-49 (“Northlake Amendment”) would change

the future land use designation of a 30.71-acre parcel located

on the southwest corner of Coconut Boulevard and Northlake

Boulevard (“Northlake Property”) from Rural Residential 20 to

Commercial-Low/ Rural Residential 5.

10. Ordinance 2008-48 (“Panattoni Amendment”) would change

the future land use designation of a 37.85-acre parcel located

on the south side of Lake Worth Road, 1,320 feet east of Lyons

Road (“Panattoni Property”) from Low-Residential 2 to

Commercial-High with an underlying 2 units per acre.

Findings Applicable to all Amendments

11. The County adopted a Managed Growth Tier System in

1999, which places all lands in the County into one of five tier

classifications: Urban/Suburban, Exurban, Rural, Agricultural

Reserve, and Glades. The tiers are intended to define distinct

geographical areas within the County that “allow for a diverse

range of lifestyle choices, and livable, sustainable

communities.”

12. None of the three amendments propose to change the

Tier in which the affected properties are located. The new

future land use designations created by the three amendments are

allowable land uses within their respective tiers.

13. In the Department’s Objections, Recommendations, and

Comments Report, following the transmittal of the three

amendments, the Department objected to the amendments for the

following reason:

These amendments include statements or

conditions that would limit development to a

certain size, use, or intensity. Without

these development limitations, one or more

specific facilities (water supply, water and

wastewater treatment, and road capacity)

would not be available at the adopted level

of service standards to serve these sites if

they are developed at their maximum

development potential. The County has not

included these site specific limitations or

conditions in a policy in the Future Land

Use Element nor included a corresponding and

appropriate notation on the Future Land Use

Atlas to clearly indicate that development

limitations apply to these sites.

The County addressed the Department’s objection by agreeing to

place notations in its Future Land Use Atlas (FLUA) to indicate

that the land uses on the properties affected by the amendments

are subject to special limitations and conditions.

14. The three amendments affect properties located near

subdivisions that are suburban in nature and home to

approximately 50,000 people. When these areas were first

platted and developed, they were far to the west of the

urbanized areas of the County, and had insufficient commercial

uses in or around them to serve the residents. The planning

studies that have been conducted for this central-western area

of the County have consistently concluded that the area needs

more commercial land uses to serve the residential population.

15. Today, there are only about 40,000 square feet of

commercial uses in this central-western area of the County.

Based on a planning ratio of 35 square feet of commercial uses

per capita, about 1.5 million square feet of commercial uses

would be needed to serve the residential population.

16. The Palm Beach County Comprehensive Plan requires

applicants for a FLUA amendment to demonstrate consistency with

Policy 3.5-d of the Future Land Use Element (FLUE), regarding

traffic impacts. Policy 3.5-d requires a long-term traffic

analysis based on the Metropolitan Planning Organization’s 2025

Long Range Transportation Plan (“Test One”) and a short-term,

five-year traffic analysis based on the County’s five-year plan

(“Test Two”).

17. Under Test One, if the traffic associated with an

amendment to the FLUA would significantly impact a road that is

projected to fail to operate at adopted level of service (LOS)

standard “D” based on the 2025 Long Range Transportation Plan,

the amendment cannot be adopted. In contrast, a failure to meet

an LOS standard based on the County’s five-year plan -- Test Two

-- can be remedied.

18. Under Test Two, if LOS standards on affected roads

would not be maintained, the applicant must commit to make or

fund additional road improvements to accommodate the traffic

impacts associated with the future land use re-designation.

Alternatively, an applicant could be required to develop the

land in phases so that the traffic impacts associated with each

development phase can be accommodated without exceeding the

capacity of the roadways.

19. The County’s income from gas tax sources which are

used to fund transportation improvements has decreased due to

the nationwide downturn in the economy, and the decrease has

affected the timing of some planned transportation improvements.

However, the County has not abandoned the scheduled improvements

for the roads that are affected by the challenged amendments.

20. Map LU 4.1 of the comprehensive plan depicts the

public wellfield protection zones within the County and the

Turnpike Aquifer Protection Overlay. These planning zones were

established to protect sources of public drinking water. The

properties affected by the three amendments are located outside

of these protection zones.

21. Petitioners presented no competent evidence that the

three amendments, alone or in combination, would harm the

sources of public drinking water. Petitioners’ evidence was

only sufficient to support the general proposition that more

land development increases the potential for contamination of

surface water and groundwater. The evidence did not establish

that the three amendments, alone or in combination, create a

measurable increase in the potential for contamination or pose a

foreseeable threat of adverse impact to surface water or

groundwater.

22. Petitioners’ expert witnesses conceded that they had

insufficient data and had conducted no specific studies to

support an opinion that any of the amendments would cause harm

to natural resources, generally, or to the aquifer, in

particular.

Ordinance 2008-50, the Sluggett Amendment 2 /

23. The Sluggett Amendment would change the future land

use designation of a 64.48-acre parcel located at the northwest

intersection of Southern Boulevard and Seminole Pratt Whitney

Road from Rural Residential 10 to Commercial-Low/Rural

Residential 5.

24. The Sluggett Property is within the Rural Tier.

25. Southern Boulevard and Seminole Pratt Whitney Road are

major arterial roadways.

26. The Commercial-Low designation limits building

coverage to a maximum of 10 percent. On the Sluggett Property,

that would equate to about 280,000 square feet of commercial

development. However, the Sluggett Amendment contains a

condition that further restricts the intensity of commercial

development on the Sluggett Property to 161,000 square feet.

27. Residential density on the Sluggett Property is

limited to 15 residential units, and is derived from the allowed

density for the 64-acre parcel (12 units), plus three more units

which are allowed under the County’s Workforce Housing bonus

program. The Workforce Housing bonus program allows an increase

in density when some units will be developed as low or moderate

income housing.

28. The Sluggett Amendment includes a condition that

requires that the commercial and residential development on the

Sluggett Property meet a Traditional Marketplace Development

formaditional Marketplace Development is a development form

that requires low intensity commercial and institutional uses,

vertically integrated with residential uses, with a pedestrian

orientation. This development form is achieved primarily

through the design and organization of buildings and public

spaces and the dispersal of parking.

29. The Sluggett Amendment limits any single non-

residential or commercial single tenant to a maximum of 65,000

square feet.

30. To the north of Sluggett Property are lands classified

Rural Residential 5 and Rural Residential 2.5. To the east is

Loxahatchee Groves, the County’s newest municipality. Directly

south, across Southern Boulevard, is land owned by the South

Florida Water Management District. Southeast of the Sluggett

Property is the incorporated Village of Wellington.

31. The Sluggett Property is separated from the Acreage

community to the west by a stormwater drainage canal and 80-

foot-wide stormwater drainage easement managed by Seminole

Improvement District.

32. To provide compatibility with the residential areas

north of the Sluggett Property, the Sluggett Amendment includes

a condition that requires a minimum of ten acres of open space

on the northern portion of the Sluggett Property.

33. Because the Sluggett Property is located at the

intersection of two arterial roadways, it meets the siting

requirement of FLUE Policy 1.4-f for commercial uses in the

Rural Tier.

34. In prior planning studies in the central-western area

of the County, the Sluggett Property was specifically identified

as an appropriate location for neighborhood-serving commercial

development.

35. The residential component of the Sluggett Amendment is

supported by the Bureau of Economic and Business Research

population projections and by other data and analyses in the

record. The residential units are also necessary to achieve the

preferred Traditional Marketplace Development form. The

inclusion of residential units also serves to achieve the

County’s objective of increasing workforce housing.

36 . The need for the Sluggett Amendment was adequately

demonstrated.

37. The Sluggett Amendment is compatible with surrounding

land uses.

38. The LOS standard for the affected roads would not be

maintained if the Sluggett Property were developed at the

maximum commercial intensity allowed under the proposed future

land use designation (plus 15 dwelling units). This situation

would cause the Sluggett Amendment to fail Test One of FLUE

Policy 3.5-d, described above.

39. If development of the Sluggett Property is limited to

161,500 square feet of commercial, Test One is met. Therefore,

the Sluggett Amendment limits development of the Sluggett

Property to 161,500 square feet or commercial.

40. The Sluggett Amendment includes two other conditions

related to traffic to avoid potential roadway failures based on

Test Two’s five-year analysis. These conditions limit the

development to 46,500 square feet of commercial, “until

construction commences on the south approach of the intersection

of Southern Boulevard and Big Blue Trace to provide for dual

left turn lanes, or one through lane and dual right turn lanes.”

41. The potential traffic impacts associated with the

Sluggett Amendment have been addressed in a manner consistent

with relevant provisions of the comprehensive plan.

42. Water and wastewater utilities are available to the

Sluggett Property and there is adequate capacity to serve the

Property.

43. School facilities, emergency medical services, and

fire and police services are also available and adequate to

serve the Sluggett Property.

44. Although Petitioners suggested that the Sluggett

Amendment would cause stormwater drainage problems, no competent

evidence was presented to demonstrate that a real threat of

stormwater contamination exists or that any comprehensive plan

provision related to stormwater would be violated.

45. In their petition for hearing, Petitioners claimed

that the Sluggett Amendment meets the definition of urban

sprawl, but included no specific factual allegation other than

the amendment would allow “strip-type commercial development.”

46. The requirement of the Sluggett Amendment that ten

acres of open space be set aside in the northern portion of the

property, and the requirement to develop as a Traditional

Marketplace Development prevents a strip development, as that

term is normally applied in land use planning.

47. The Sluggett Property is somewhat distant from other

commercial uses, a consequence of the poorly planned development

of the residential subdivisions in the area. The Sluggett

Amendment reduces a deficit in neighborhood-serving commercial

uses and thereby remedies an existing imbalance of land uses

caused by the past urban sprawl.

easure Coast Regional Planning Council determined

that the Sluggett Amendment was consistent with the Council’s

Strategic Regional Policy Plan. Petitioners did not show how

the Sluggett Amendment causes an inconsistency with any

provision of the Strategic Regional Policy Plan.

Ordinance 2008-49, the Northlake Amendment 3/

49. The Northlake Amendment would change the future land

use designation of a 30.71-acre parcel located on the southwest

corner of Coconut Boulevard and Northlake Boulevard from Rural

Residential 20 to Commercial-Low/ Rural Residential 5.

50. The Northlake Property is in the Exurban Tier.

51. East of the Northlake Property, along Northlake

Boulevard, are the residential communities of Bayhill Estates

and Rustic Lakes, which were developed at a density of one unit

per two acres and one unit per five acres, respectively.

Farther east, is the large, gated golf course development called

Ibis, which consists of approximately 2,000 units developed at

1.25 dwelling units per acre.

52. On the north side of Northlake Boulevard is a large

tract of agricultural land located in the City of Palm Beach

Gardens. Northeast are Osprey Isles and Carlton Oaks, which are

residential developments with quarter-acre lots, and a cemetery

and land designated for commercial low/office development.

53. South of the Northlake Property, across two-lane

Hamlin Road, is the Acreage.

54. Existing and proposed institutional development in the

vicinity of the Northlake Property include the adjacent parcel

to the east, which is proposed to be developed as a 21,000-

square-foot U.S. Post Office and, to the west, the existing

Pierce Hammock Elementary School.

55. The comprehensive plan allows development of

institutional uses in the Exurban Tier at intensities of up to

.20 Floor Area Ratio (FAR). The Northlake Amendment proposes

development at less than half that intensity, .08 FAR.

56. The Northlake Property is located in an area that was

the subject of a regional planning effort called the Western

Northlake Corridor Study (WNCLUS) conducted by the county, the

City of West Palm Beach, and the City of Palm Beach Gardens.

The WNCLUS was completed in 1998 and is now being updated. In

April 2008, an updated, intergovernmental analysis of the need

for commercial uses in the study area concluded that the need

exceeded the square footage of commercial uses that would be

provided by the Northlake Amendment.

57. The Northlake Property is one of the few parcels in

the area that meets the commercial land use siting criterion in

FLUE Policy 1.3-f, having frontage on an arterial road and a

collector road.

58. In their petition for hearing, Petitioners claimed

that the Northlake Amendment meets the definition of urban

sprawl, but included no specific factual allegation other than

the amendment would allow “strip-type commercial development.”

59. The Northlake Amendment only affects one parcel. The

amendment would not extend any existing commercial uses on

Northlake Boulevard or Coconut Boulevard.

60. The applicant has agreed to record restrictive

covenants on parcels owned by the applicant that are west of the

Northlake Property, which would remove any potential for their

future development for commercial uses. Executed restrictive

covenants and easements are being held in escrow by the County

Attorney and would be recorded after the approval of the

Northlake Amendment.

61. Although the Northlake Property is not integrated with

other commercial uses, that situation is a consequence of the

poorly planned development of the residential subdivisions in

the area. The Northlake Amendment reduces a deficit in

neighborhood-serving commercial uses and thereby remedies an

existing imbalance of land uses caused by past urban sprawl.

62. The residential density allowed by the Northlake

Amendment (one dwelling unit per five acres) conforms with the

adjacent residential densities, which range from one unit per

five acres to one unit per 1.25 acres.

63. The Northlake Amendment is compatible with surrounding

land uses.

64. If the Northlake Property were developed at the

maximum commercial intensity of 133,000 square feet, LOS

standards on affected roadways would likely be exceeded.

Therefore, the Northlake Amendment includes a condition that

limits development to 106,566 square feet of commercial.

65. Water and wastewater utilities are available to the

Northlake Property and there is adequate capacity to serve the

property.

66. School facilities, emergency medical services, fire

and police services are all available and adequate to serve the

Northlake Property.

67. The Treasure Coast Regional Planning Council reported

that it considered the Northlake Amendment to be inconsistent

with the Strategic Regional Policy Plan, “unless and until the

County updates the WNCLUS in coordination with the Cities of

Palm Beach Gardens and West Palm Beach.” The Council did not

identify any specific provision of the Strategic Regional Policy

Plan with which the Northlake Amendment was inconsistent.

68. The Council issued its comments without the

opportunity to consider subsequent data and analysis that are

included in the record of this case. For example, after the

Council issued its report, the City of Palm Beach Gardens

expressed support for the Northlake Amendment. In addition, the

County planning staff’s objections to the Northlake Amendment,

which appeared to be the primary basis for the Council’s finding

of inconsistency, were subsequently refuted by the County’s

Planning Director.

Ordinance 2008-48, the Panattoni Amendment 4 /

69. The Panattoni Amendment would change the future land

use designation of a 37.85-acre parcel located on the south side

of Lake Worth Road, and 1,320 feet east of Lyons Road, from Low-

Residential 2 to Commercial-High with an underlying 2 units per

acre.

70. The Panattoni Property is within the Urban/Suburban

Tier. The Urban/Suburban Tier is described in the Plan as

“urban levels of service.” The Urban/Suburban Tier is expected

to accommodate about 90 percent of the County’s population.

71. The Panattoni Property is also within the County’s

Urban Service Area. The Urban Service Area is the area in which

the County anticipates the extension of urban services through

the long range planning horizon.

72. The properties to the north, south, east, and west are

designated Low Residential 2. There is an existing residential

community to the west. The properties to the north, south, and

east are vacant.

73. The Panattoni Amendment requires the property to be

developed as a Lifestyle Commercial Center. The Lifestyle

Commercial Center is similar to a Traditional Marketplace

Development, being a mixed-use, pedestrian-friendly form of

development. The Panattoni Amendment meets the commercial land

use siting criteria in FLUE Policy 1.2-k.

74. The county planning staff anticipated that the

surrounding vacant properties would be developed at a higher

density than two units per acre through one or more of the

county’s density bonus programs.

75. The Panattoni Amendment includes a condition that at

least five percent of the project must be designated as public

open space as squares, greens, or plazas.

76. Parking must be dispersed through the site. The

interconnected vehicular and pedestrian circulation system must

provide on-street parking and access to transit stops and off-

site pedestrian and bicycle systems where feasible.

77. The Panattoni Property be developed with building mass

and placement to provide a spatial definition along streets.

Additionally, the design must incorporate human-scale elements

along streets and in common areas that includes seating,

landscaping, lighting and water or art features.

78. No single tenant can exceed 100,000 square feet and

cannot not be a “big box.”

79. The Panattoni Amendment would not result in strip

development.

80. The Panattoni Amendment is compatible with surrounding

land uses.

81. Petitioners testified that a number of stores in the

area have closed as evidence that the area does not need

additional commercial uses. A window survey of empty stores is

not an accurate way to evaluate vacancy rates, in particular, or

the need for commercial uses, generally.

82. Panattoni provided an adequate justification and

demonstrated need for the 396,000 square feet of commercial uses

authorized by the Panattoni Amendment.

83. The Panattoni Property is located in the tier in which

the County has indicated it wants most of its development to

occur. Petitioners presented no evidence that the Panattoni

Amendment would cause urban sprawl.

84. There are adequate public services and infrastructure

to accommodate the Panattoni Amendment.

85. The potential traffic impacts associated with the

Panattoni Amendment were reviewed under the Test One and Test

Two analyses. As to Test One, the traffic analysis shows that

affected roads will not meet the LOS standard in 2025 at the

maximum development intensity. Therefore, the Panattoni

Amendment includes a condition that the development must be

limited to 396,000 square feet of commercial use.

86. As to Test Two, the traffic analysis shows that all

roads will operate at the adopted LOS standard if the project is

limited to 65,000 square feet until construction has commenced

for the recommended improvements at Lake Worth Road/Turnpike

interchange. Therefore, the Panattoni Amendment includes this

condition on the development. Construction of the improvements

has already commenced.

87. The Treasure Coast Regional Planning Council

determined that the Panattoni Amendment is consistent with the

Strategic Regional Policy Plan. Petitioners did not show how

the Panattoni Amendment causes an inconsistency with any

provision of the Strategic Regional Policy Plan.

CONCLUSIONS OF LAW

88. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to Sections 120.569, 120.57(1), and

163.3184(9), Florida Statutes.

89. The Department has the statutory power and duty to

review proposed and adopted local government comprehensive plan

amendments to determine whether the amendment is “in

compliance,” as defined in Section 163.3184(1)(b), Florida

Statutes.

90. It is not the role of the Department to determine

whether an amendment is the best approach available to the local

government for achieving the local government’s purposes.

91. The term “in compliance” is defined in Section

163.3184(1)(b), Florida Statutes:

In compliance means consistent with the

requirements of ss. 163.3177, 163.3176, 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.

92. Petitioners did not claim that the amendments are

inconsistent with Section 163.3178, 163.3191, or 163.3245,

Florida Statutes. Petitioners’ challenge focused on alleged

inconsistency with the Palm Beach County Comprehensive Plan,

Section 163.3177, Florida Statutes, and portions of Florida

Administrative Code Chapter 9J-5.

Standing

93. In order to have standing to challenge a plan

amendment, a challenger must be an “affected person,” which is

defined as a person who resides, owns property, or owns or

operates a business within the local government whose

comprehensive plan amendment is challenged. See §

163.3184(1)(a), Fla. Stat.

94. Petitioners Patricia Curry, Alexandria Larson, and

Sharon Waite, and Intervenors Northlake and Sluggett have

standing as affected persons.

95. Although Petitioner Patrick Wilson’s standing is

questioned because he did not present evidence at the final

hearing to show that that he made timely comments to the County

about the amendments, the issue need not be discussed because of

the standing of the other petitioners. 5/ See Coalition for

Adequacy and Fairness in School Funding, Inc. v. Chiles , 680 So.

2d 400, n.4 (Fla. 1996).

96. Petitioners challenged Panattoni’s standing because

sometime after this case was initiated, Panattoni transferred

its rights to Panattoni Development Company, Inc. Rule 1.260(c)

of the Florida Rules of Civil Procedure provides that, in the

case of any transfer of interest, the action may be continued by

or against the original party, unless the court on motion

substitutes or joins the new entity. See Levine v. Gonzalez ,

901 So. 2d 969 (Fla. 4th DCA 2005); Schmidt v. Mueller , 335 So.

2d 630 (Fla. 2d DCA 1976).

97. Based on the guidance provided by the civil rule, and

because Panattoni Development Company, LLC, met the definition

of “affected person” at the time of its intervention in this

case, Panattoni has standing in this proceeding.

Burden and Standard of Proof

98. As the parties challenging the Department’s “in

compliance” determination, Petitioners have the burden of

proving that the amendments are not in compliance. See Young v.

Department of Community Affairs , 625 So. 2d 831 (Fla. 1993).

99. Because the Department determined that the amendments

are “in compliance,” the amendments shall be determined to be

“fairly debatable.” See § 163.3184(1)(b), Fla. Stat.

100. The term “fairly debatable” is not defined in Chapter

163, Florida Statutes. In Martin County v. Yusem , 690 So. 2d

1288, 2195 (Fla. 1997), the court said, “The fairly debatable

standard of review is a highly deferential standard requiring

approval of a planning action if reasonable persons could differ

as to its propriety.” Quoting from City of Miami Beach v.

Lachman , 71 So. 2d. 148, 152 (Fla. 1953), the Court stated

further that “an ordinance may be said to be fairly debatable

when for any reason it is open to dispute or controversy on

grounds that make sense or point a logical deduction that in no

way involves its constitutional validity.”

101. Section 163.3177(2), Florida Statutes, and Florida

Administrative Code Rule 9J-5.005(5)(a), require the elements of

a comprehensive plan to be internally consistent. A plan

amendment can only create internal inconsistency when the

amendment conflicts with an existing provision of the

comprehensive plan.

102. Petitioners failed to prove beyond fair debate that

the amendments are inconsistent with any goal, objective, or

policy of the Pal Beach County Comprehensive Plan.

103. Petitioners failed to prove that the amendments are

inconsistent with any provision of Section 163.3177, Florida

Statutes, including the requirement to demonstrate need for the

amendments.

104. Florida Administrative Code Rule 9J-5.006(5)(g) sets

forth 13 primary indicators that a plan or plan amendment fails

to discourage the proliferation of urban sprawl. In addition to

a consideration of the 13 primary indicators, an urban sprawl

analysis requires a consideration of need, land uses, local

conditions, and development controls. See Fla. Admin. Code R.

9J-5.006(5)(h)-(j).

105. Petitioners failed to prove that the amendments

constitute a failure of the County to prevent the proliferation

of urban sprawl.

106. All data in existence and available to a local

government at the time of adoption of the plan amendment may be

relied upon to support an amendment in a de novo proceeding.

Zemel v. Lee County et al. , 15 F.A.L.R. 2735 (Dept. of Community

Affairs Final Order, June 22, 1993), aff’d , 642 So. 2d. 1367

(Fla. 1st DCA 1994).

107. Analysis, on the other hand, does not have to exist

at the time of the adoption of a plan amendment. See Zemel ,

supra . Data that existed at the time of the adoption of a plan

amendment can be analyzed for the first time in preparation for

the administrative hearing challenging a plan amendment.

108. Petitioners failed to prove that the amendments are

not supported by appropriate data and analysis, that the data

used was not the best available data, or that the data was not

used appropriately.

109. Petitioners failed to prove that the amendments are

inconsistent with any provision of the Strategic Regional Policy

Plan.

110. In summary, Petitioners failed to prove beyond fair

debate that the amendments are not “in compliance,” as that term

is defined in Section 163.3184(1)(b), Florida Statutes.

RECOMMENDATION

Based on 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 amendments adopted by Palm

Beach County by Ordinances 2008-48, 2008-49, and 2008-50 are "in

compliance."

DONE AND ENTERED this 21st day of October, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of October, 2009.

ENDNOTES

1 / Unless otherwise noted, all references to the Florida

Statutes are to the 2008 codification.

2 / In some exhibits and testimony, this amendment is referred to

as the Seminole/Southern Commercial amendment.

3 / In some exhibits and testimony, this amendment is referred to

as the Coconut/Northlake Commercial amendment.

4 / In some exhibits and testimony, this amendment is referred to

as the Lake Worth Commercial amendment.

5 / No party suggested that Mr. Wilson’s participation in any way

prejudiced the proceeding.

COPIES FURNISHED :

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Robert P. Banks, Esquire

Palm Beach County Attorney's Office

301 North Olive Avenue, Suite 601

West Palm Beach, Florida 33401

Sharon Waite

15058 75th Place, North

Loxahatchee, Florida 33470

Patrick Wilson

3848 Cypress Edge Drive

Lake Worth, Florida 33467

Margaret-Ray Kemper, Esquire

Ruden, McClosky, Smith,

Schuster & Russell, P.A.

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301

Patricia D. Curry

12390 59 Street North

Royal Palm Beach, Florida 33411

Vinette D. Godelia, Esquire

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Post Office Box 6526

Tallahassee, Florida 32301

Alexandria Larson

16933 West Harlena Drive

Loxahatchee, Florida 33470

Amy Taylor Petrick, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway, Suite 359

West Palm Beach, Florida 33401-4606

Gary K. Hunter, Esquire

Hopping Green & Sams

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32301

Dale A. Bruschi, Esquire

Ruden, McClosky, Smith,

Schuster & Russell, P.A.

200 East Broward Boulevard

Fort Lauderdale, Florida 33302

Tom G. 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 32399-2160

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.