02-000173GM Palm Beach Polo Holdings, Inc. vs. The Village Of Wellington And Department Of Community Affairs Status: Closed Recommended Order on Tuesday, October 29, 2002.

Summary: Petitioner did not prove that Village`s decision to approve amendment, changing transportation and capital investment elements of Comprehensive Plan, was not in compliance with Chapter 163, Part II, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH POLO HOLDINGS, )

INC., )

)

Petitioner, )

) Case N o. 02 - 0173GM

vs. )

)

THE VILLAGE OF WELLINGTON and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was given and on May 7 and 8, 2002, a final

hearing was held in this case. Pursuant to the authority set

forth in Sections 120.569, 120.57(1), and 163.3184(9)(b),

Florida Statutes, the hearing was conducted by Charles A.

Stampelos, Administrative Law Judge, in Palm Beach County,

Florida.

APPEARANCES

For Petitioner, Palm Beach Polo Holdings, Inc.:

Lawrence M. Weisberg, Esquire

6877 Southwest 18th Street, Suite 141

Boca Raton, Florida 33433 - 7045

For Respondent, Department of Community Affairs:

Karen A. Brodeen, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399 - 2100

For Respondent, The Village of Wellington:

Thomas G. Pelham, Esquire

John H. Holley, Esqui re

909 East Park Avenue

Tallahassee, Florida 32301 - 2646

STATEMENT OF THE ISSUES

Whether the Comprehensive Plan Amendment to the Village

of Wellington Comprehensive Plan, adopted by Ordinance No.

2001 - 11, is "in compliance" as defined in and required by t he

"Local Government Planning and Land Development Regulation

Act," Chapter 163, Part II, Florida Statutes, and whether the

Plan Amendment is supported by adequate data and analysis as

required by Chapter 163, Part II, Florida Statutes, and Rule

9J - 5, Flor ida Administrative Code.

PRELIMINARY STATEMENT

On October 23, 2001, the Village of Wellington (Village)

amended its Comprehensive Plan (Plan) through the adoption of

Ordinance No. 2001 - 11, which approved an amendment to the

Transportation and Capital Impro vement Elements of the

Village's Plan (Amendment).

On December 13, 2001, the Department of Community Affairs

(Department) found the Amendment "in compliance" pursuant to

Sections 163.3184 and 163.3189, Florida Statutes, and issued a

Notice of Intent.

On January 7, 2002, Palm Beach Polo Holdings, Inc.

(Polo), by and through counsel, filed a Petition for Formal

Administrative Hearing (Petition) with the Department, and the

Petition was forwarded to the Division of Administrative

Hearings for the assignment of an administrative law judge.

In a Joint Response to Initial Order, the parties advised that

they were available for final hearing on March 18 and 19,

2002, and March 26 through 29, 2002. On January 28, 2002, the

final hearing was scheduled for March 2 8 and 29, 2002, and an

Order of Pre - Hearing Instructions was issued.

On or about January 28, 2002, the Village served expert

witness interrogatories on Polo. Thereafter, counsel for Polo

disclosed four experts, but indicated that no opinions had

been form ulated and no final list of experts had been

determined.

On March 6, 2002, Polo filed a request to file an amended

petition. The request was granted on April 19, 2002.

On March 11, 2002, the Village filed a Motion to preclude

Polo's expert witnesses fro m testifying or, in the

alternative, to compel Polo to respond to the expert

interrogatories.

On March 14, 2002, counsel for Polo moved to withdraw

without objection from the Village or the Department. The

Motion to Withdraw was considered during a teleph one hearing

held on March 14, 2002, and was granted.

During the March 14, 2002, telephone hearing, Polo's

counsel moved ore tenus for a continuance of the final

hearing. The continuance was granted without objection. Polo

was given until March 28, 2002, to obtain new counsel and file

a notice of appearance, and until April 4, 2002, for the new

counsel or representative, to file responses to the pending

motions. With the concurrence of all parties, the final

hearing was re - scheduled for May 7 and 8, 2002, to give Polo

adequate time to prepare for the final hearing.

The oral ruling was confirmed in the Order dated

March 14, 2002. The Order further advised Polo and

Respondents that "[a]ll pending motions will be considered

after March 28, 2002," and tha t "[o]n or before April 4, 2002,

Palm Beach [Polo], by its counsel or representative, shall

advise, in writing, of Palm Beach's [Polo] position regarding

all pending motions." Id. The motions pending at that time

were Polo's request for leave to file an amended petition and

the Village's Motion to preclude Polo from calling expert

witnesses or to compel answers to discovery.

On April 6, 2002, the Law Offices of Lawrence M.

Weisberg, P.A., served a Notice of Appearance on behalf of

Polo. On April 8, 2002, Mr. Weisberg also served a Motion

requesting a continuance to prepare for the final hearing.

Respondents opposed a continuance.

By Order dated April 19, 2002, Polo's Motion for

Continuance was denied for failure to show good cause. Polo's

pending requ est to amend its Petition was granted, and the

Amended Petition previously filed on behalf of Polo was

accepted as Polo's Amended Petition. The Village's Motion to

preclude Polo's expert witnesses from testifying was denied.

However, the Village's Motion to compel Polo to furnish

additional information requested in the expert witness

interrogatories was granted.

On April 24, 2002, Polo filed an Emergency Motion for

Protective Order seeking to protect its witnesses from

depositions unless the Village agree d to alternate the

depositions of Polo's and the Village's experts, and the

Village made its Council members available for depositions, in

order to discover, in part, the "motivation and rationale for

the Council members voting the way they did."

On April 25, 2002, the Village filed a Motion for

Protective Order seeking to protect the Village Council

members from Polo's deposition request. After hearing, by

Order dated April 26, 2002, Polo's motion was denied, and the

Village's motion was granted. Also, P olo's ore tenus motion

requesting the undersigned to view the local traffic situation

was denied.

On May 2, 2002, Polo filed a Motion to Reconsider Taking

the Depositions of Village Council Members and Striking

Protective Order and Motion to Require a Spec ial Master at the

Deposition of Paul Schofield. The Village and the Department

filed a Joint Motion in Limine seeking to exclude the

introduction of evidence regarding the internal inconsistency

of the existing Comprehensive Plan, other options or plan

am endments which the Village might have but did not adopt, and

the motive and intent of the Village Council members in

adopting the Amendment. By Order dated May 3, 2002, Polo's

motions were denied and ruling was deferred on the Village's

motion until the d ay of the hearing.

On May 3, 2002, the parties filed a Joint Prehearing

Stipulation. On May 6, 2002, Polo filed a Notice of Filing

Signature Page to Joint Pretrial Stipulation and Notice of

Amending Petitioner's Portion of the Exhibit and Witness List

of the Joint Prehearing Stipulation.

A final hearing was held on May 7 and 8, 2002, in the

Village of Wellington. At the beginning of the final hearing,

the undersigned ruled on the Respondents' Joint Motion in

Limine. The Motion was granted as to evidence of the motive

and intent of Village Council members and of the internal

inconsistency of the existing Comprehensive Plan, and was

otherwise denied, allowing Polo to offer evidence of data and

analysis, which was in existence when the Village Council

approv ed the Amendment.

The Village's ore tenus motion seeking to quash two

subpoenas for deposition served by Polo on the afternoon of

May 6, 2002, was granted.

At the final hearing, Polo called as witnesses Michael H.

Nelson; Robert F. Rennebaum, P.E. (an e xpert in traffic

engineering); Robert E. Basehart, A.I.C.P. (an expert in land

use planning and zoning); Daniel Carr; and Glenn F. Straub.

Polo's twelve exhibits were admitted into evidence.

The Village called as witnesses Andrea Moutman, P.E.

(an expe rt in traffic engineering and transportation

planning), and Paul Schofield, A.I.C.P. (an expert in land use

planning and comprehensive planning). The Village's five

exhibits were admitted into evidence.

The Department did not call any witnesses or introduc e

any exhibits into evidence.

The parties introduced three joint exhibits which were

admitted into evidence.

Pursuant to a request and Section 120.57(1)(b), Florida

Statutes, public comment and one public exhibit were received

during the final hearing on M ay 8, 2002.

At the conclusion of the final hearing, the parties

stipulated that the proposed recommended orders would be filed

within 45 days after the final hearing transcript was filed.

The transcript of the final hearing was filed on July 16,

2002, and the parties filed proposed recommended orders which

have been considered in preparing this Recommended Order.

The Village has filed a motion seeking attorney's fees

and costs from Polo, pursuant to Sections 120.569(2)(e),

120.595(1)(b) and (c), and 163.3 184(12), Florida Statutes. In

support of this Motion, the Village filed the depositions of

Gary Clough; Andrea Moutman, P.E.; Paul Schofield,

A.I.C.P.; Glenn F. Straub; Robert E. Basehart, A.I.C.P.;

Michael H. Nelson; and Robert F. Rennebaum, P.E. No response

was filed by Polo or the Department.

FINDINGS OF FACT

The Parties

1. Palm Beach Polo Holdings, Inc. Polo is a Florida

corporation and the owner of real property within the

Wellington Country Place Planned Unit Development (PUD), which

is located wi thin the Equestrian Preserve of the Village of

Wellington, Florida. Polo is a developer of the Wellington

Country Place PUD, significant portions of which remain

undeveloped. Specifically, the Wellington Country Place PUD

is about 30 to 35 percent built - out. Among Polo's real estate

holdings in the Village of Wellington is a 17.9 - acre parcel of

undeveloped, commercially designated land, which is located on

South Shore Boulevard at or near the intersection with Green

Shores Boulevard.

2. Glen F. Straub and Michael H. Nelson appeared at the

final hearing as the corporate representatives of Polo.

Mr. Nelson lives in Wellington and is employed by Effective

Solutions, Inc., which provides a number of services to Polo,

including management services, land use ser vices, and lobbying

services. In his lobbying capacity, Mr. Nelson has on

numerous occasions advocated Polo's position before the

Village.

3. Mr. Nelson and Mr. Straub spoke in opposition to the

Amendment at the October 23, 2001, meeting of the Wellington

Village Council. Mr. Nelson testified at the October 23,

2001, meeting, in support of the four - laning of the two

roadway segments which will remain two - lane roads under the

Amendment. Mr. Nelson's objections were made in his capacity

as a resident of We llington and "as an effected [sic] resident

from Basin A." The minutes of the October 23, 2001, Wellington

Village Council meeting, which were introduced into evidence

by Polo to establish its standing, state that "Mr. Straub

stated that he was concerned w ith limiting traffic on South

Shore Boulevard. He felt that the Council should consider 4 -

laning that road." Mr. Nelson also stated: ". . . the

Council needed to consider ways to help circulate traffic for

residents of Basin A. He felt that there would be a need in

the future to 4 - lane South Shore and Lake Worth Road."

4. Polo's Amended Petition alleges that "[r]ather than

improving these road segments by four laning them - the road

segments are currently two lane - the Village through the

current amendmen t seeks to lower the LOS to E and add more

trips."

5. Mr. Straub testified that a four - lane road might be an

alternative. In part, he was concerned that the Village

Council did not examine the effect of "build - out" in the area

and the impact on traffic and resulting "gridlock" in the

area. Mr. Straub views the Amendment (which he says is

inconsistent with the Plan) as a "Band - Aid" to fix an ongoing

traffic problem. Mr. Straub believes the traffic analysis

supplied to the Village Council was performed hastil y,

incomplete, and inadequate.

6. The Village of Wellington. The Village is a

municipality of the State of Florida, with the duty and

responsibility under Chapter 163, Part II, Florida Statutes,

to adopt a comprehensive plan and comprehensive plan

amendment s. The Village is located in the western portion of

Palm Beach County and became incorporated in 1995 and

operational on March 28, 1996, with the seating of the first

Village Council. Following incorporation, the Village adopted

its first Comprehensive P lan in 1999.

7. Department of Community Affairs. The Department is

the state land planning agency and has the authority to

administer and enforce the Local Government Planning and Land

Development Regulation Act (Act), Chapter 163, Part II,

Florida Statutes. Among the responsibilities of the

Department under the Act is the duty to review plan amendments

and determine if the comprehensive plans and plan amendments

are in compliance with the Act.

Village Review and Adoption of the Amendment

8. The Village Equestr ian Preserve Committee was created

to review all decisions affecting the Equestrian Preserve

prior to the full review by the Village Council. On April 11

and 26, 2001, the Village Equestrian Preserve Committee

considered several options for the designated roadways,

including the proposed Amendment. On May 9, 2001, the Village

Equestrian Preserve Committee voted to recommend approval of

the Amendment.

9. On June 7, 2001, the Village Planning, Zoning, and

Adjustment Board, sitting as the Local Planning Agency,

recommended approval of the Amendment.

10. The Village planning staff recommended approval of

the Amendment. On October 23, 2001, the Village adopted the

Amendment by Ordinance No. 2001 - 11.

Department Review of the Amendment

11. The Village submitted the adopted Ordinance No. 2001 -

11, the Staff Report, and other supporting documents to the

Department for review on October 31, 2001.

12. After a review of the adopted Amendment, on

December 13, 2001, the Department sent a letter to the

Village, informing the Vi llage that the Amendment was "in

compliance" as that term is defined in Subsection

163.3184(1)(b), Florida Statutes. The Department issued its

Notice of Intent to find the Amendment "in compliance"

pursuant to Sections 163.3184 and 163.3189, Florida Statu tes.

This notice was published in the Palm Beach Post on

December 17, 2001.

The Existing Village Comprehensive Plan

13. The Village's Comprehensive Plan was adopted in 1999,

by Ordinance No. 99 - 01. Subsequently, the existing

Comprehensive Plan was revi ewed by the Department and found to

be "in compliance" with the Act.

14. The Transportation Element of the existing Village

Plan contains the following Goal, Objective, and Policy:

Goal 1.0 Provide a transportation system

that meets the needs of the Village of

Wellington and the larger community of

which the Village is a part while

maintaining a high quality of life for

Village residents and businesses.

Objective 1.1 Motorized and non - motorized

transportation system: Achieve a safe,

convenient, and efficien t motorized and

non - motorized transportation system

consisting of arterial, collector and local

street and roads; pedestrian ways; bicycle

ways and equestrian trails which provide:

1) acceptable levels of service; 2)

alternative routes of travel for major

traffic flows; and 3) minimal vehicular

intrusion into residential neighborhoods.

This objective shall be made measurable by

implementing policies. [9J - 5.007(3)(b)(1)]

15. Policy 1.1.1. provides, in part, LOS standards for

streets and roads in the Village. All Village arterial and

collector streets and all Village local streets and roads have

a Level of Service (LOS) D and all Village rural collector

streets have a LOS E. By definition in the Plan, "Rural

Collector" and "Rural Local Roads and Streets" shal l be

designed to maximize safety and minimize traffic speeds in the

Equestrian Preserve Area. They shall be no more than two

lanes, except for turn lanes, in the case of "Rural Collector"

roads.

16. The Transportation Element includes the "Future

Transport ation Map." This map's legend identifies the various

types of roadways within the Village, which are graphically

depicted on the map. Some of the roadways have different

classifications for discrete roadway segments.

17. The Plan includes an optional secti on entitled

"Equestrian Preservation Element," which is designed to

preserve the Village's equestrian community. The data and

analysis for this Plan Element provides: (1) a history,

overview, and assessment of the Village's equestrian industry;

(2) an as sessment of the potential threats and opportunities

affecting that industry; and (3) actions which may be taken to

further the preservation and integration of the equestrian

industry and rural lifestyle into the fabric of the growing

community.

18. The Equest rian Preservation Element supplements other

provisions of the Plan which relate to the Equestrian Preserve

area. It is not the sole portion of the Plan which applies to

that area.

19. The Equestrian Preservation Element was placed in the

Plan to protect the unique character of the Equestrian

Preserve area. It identifies the equestrian uses that are

found there and seeks to preserve the rural lifestyle that is

found in the equestrian area.

20. The Equestrian Preservation Element includes data and

analysis, Goals , Objectives, and Policies (GOPs), and a Future

Equestrian Circulation Map, which includes roads and

equestrian trails. Unlike this map and the GOPs, the data and

analysis are not adopted portions of the Plan.

21. The Equestrian Preservation Element of the e xisting

Plan contains the following Goal, Objective, and Policies:

Goal 1.0 The goal of this element is to

ensure the preservation and protection of

the neighborhoods which comprise this area,

the equestrian industry and the rural

lifestyles which exist i n the Equestrian

Preserve.

Objective 1.3 The Village shall control

traffic volume, speed and type within the

Equestrian Preserve to limit the negative

impacts of high volume, high speed and

through traffic on the Equestrian Preserve.

This objective shal l be made measurable by

its implementing policies and by limiting

vehicular speed on rural roads,

installation of signage, road design

features, implementation of capital

improvement projects and other actions of

the Village Council.

Policy 1.3.1 Within one year of the

effective date of this plan, the Village

will develop a traffic - calming plan for all

roadways in the Equestrian Preserve. This

plan shall:

a) Minimize traffic through the area

by considering alternative routes

around the area;

b) Provi de for safe equestrian

crossings at all identified points of

vehicular and equestrian conflict.

Particular attention shall be paid to

the intersection of South Shore and

Pierson Road and Lake Worth Road and

South Shore Boulevard and generally

along Pierso n Road;

c) Provide for a reduction in speed

through the installation of traffic

circles, speed humps, four - way stop

signs or other traffic calming measures

as deemed appropriate by the Village

Engineer.

Policy 1.3.3 Roadways within the

Equestrian Prese rve shall be maintained as

two - lane facilities. Adopted levels of

service for these roadways shall be Level

of Service E.

22. As noted, the Equestrian Preservation Element gives

special planning treatment to the Village's equestrian

preserve area to protect its equestrian nature and rural

lifestyle. The Element protects the Equestrian Preserve by

controlling the impacts of traffic. It treats traffic and

roadways inside the Equestrian Preserve differently from that

outside the Preserve. It seeks to limit t hrough - traffic in

the Equestrian Preserve by reducing speeds and level of

service, and requiring traffic signage and calming measures in

the Preserve. The Element also establishes an Equestrian

Committee to review and make recommendations regarding

develo pment proposals in the Preserve.

The Amendment

23. On October 23, 2001, the Village Council adopted

Ordinance No. 2001 - 11, which approves certain amendments to

the Plan. The Ordinance adopted various changes to the

Transportation and Capital Improvements El ements related to

the creation and implementation of a new roadway

classification, "Rural Arterial."

24. The Transportation Element Policy 1.1.1 establishes

LOS standards for roadways depicted on the Future

Transportation Map, identifies corresponding criteri a for each

roadway, and defines roadway classifications and qualifying

criteria. Prior to the Amendment, "[a]ll Village arterial and

collector streets" and "[a]ll Village rural collector

streets," had an LOS of D and E, respectively. (The Future

Transpor tation Map shows the types of roadways and the segment

classifications for each of the various roadways within the

Village.)

25. The Amendment amends the Transportation Element

Policy 1.1.1 of the Plan to create the new Village roadway

classification of "Rura l Arterial" and to adopt an LOS

standard of "E" for all Village Rural Arterial roads and

describes these roads as follows:

These roads shall be designed to maximize

safety and minimize traffic speeds in the

Equestrian Preserve Area. They shall be no

more than two lanes, except for turn lanes.

Rural Arterial Roads shall be paved and

shall be designed and marked in a manner to

limit vehicular speeds.

26. Transportation Element Policy 1.5.2 is amended and

adopts right - of - way widths for roadways based on their

classification in Policy 1.1.1. Under Policy 1.5.2, all

public roads, except local streets, must have right - of - way

widths of 120 feet. The Amendment provides a right - of - way

width of 120 feet for Rural Arterial roads "to allow

comfortable separation betw een vehicles and horses."

27. The Amendment also amends the Transportation Element

to designate two roadway segments within the Village as Rural

Arterial on the Future Transportation Map. These re -

designated roadway segments are South Shore Boulevard from

Pi erson Road to Lake Worth Road, and Lake Worth Road from

120th Street West to South Shore Boulevard (the roadway

segments). The roadway segments are located in the Wellington

Country Place PUD and the Equestrian Preserve.

28. The Capital Improvements Elemen t (CIE) Policy 1.2.1

mirrors Transportation Policy 1.1.1 to a large extent by

reiterating the same LOS standards. CIE Policy 1.2.1

identifies criteria for various roadways, as does

Transportation Policy 1.1.1. With respect to arterial and

collector stree ts, pre - Amendment CIE Policy 1.2.1 described

the qualifying criteria as "[u]ntil such time and at such

locations as signalized intersections exceed 2.49 per mile."

The Amendment deletes this description.

29. CIE Policy 1.2.1 also was amended to delete the

de scription of Village Rural Arterial roads as having "2.49 or

fewer intersections per mile." Under the Amendment, this

Policy refers to all Village Rural Arterial roads as having an

LOS standard of E with no mention of signalization or

intersections or oth er qualifying criteria.

30. The Amendment also amends the CIE to include funding

for the improvement of the two re - designated roadway segments

in the five - year capital improvements schedule in the CIE.

The two roadway segments are to be reconstructed as two - lane

roadways with a median and turn lanes.

31. The term "rural" in the context of the Village's

roadway classifications refers to a roadway lying within the

Equestrian Preserve. It is not used to describe the nature of

the roadway's surroundings. See endn ote 2.

Polo's Amended Petition

32. Polo alleges that the Amendment is not "in

compliance" because it is internally inconsistent with

Transportation Element Goal 1.0 and Objective 1.1, and

Equestrian Element Objective 1.3 of the Village Comprehensive

Plan.

33. Polo also alleges that the Amendment is inconsistent

with the Wellington Country Place Planned Unit Development

(Wellington PUD), which is, according to Polo, incorporated

into the Village Comprehensive Plan and contemplates that the

two road segments in q uestion will be four - laned.

34. Further, Polo alleges that the Amendment is not

supported by adequate data and analysis as required by

Section 163.3177(6),(8), and (10), Florida Statutes, and Rule

9J - 5.005(2), Florida Administrative Code.

35. In the Joint P rehearing Stipulation, Polo clarified

and stated with particularity that its claim of inadequate

date and analysis relates to three deficiencies in the Pinder -

Troutman traffic analysis relied upon by the Village.

Specifically, Polo contended that the Pind er - Troutman traffic

analysis is deficient because it (1) used only a one - day

traffic count as opposed to three days; (2) failed to properly

account for future growth; and (3) did not include a safety

analysis. See Findings of Fact 60 - 74.

The Affected Roa dways

36. The two roadway segments directly affected by the

Amendment are (1) South Shore Boulevard from Pierson Road to

Lake Worth Road; and (2) Lake Worth Road from 120th Street to

South Shore Boulevard. The two roadway segments are located

in the Equestri an Preserve of the Village.

37. Currently, the two roadway segments are two - lane

undivided roads. They are designated on the Future

Transportation Map of the existing Village Comprehensive Plan

as two - lane collector roads with an LOS D.

Internal Consistenc y

38. Polo contends that the Amendment is inconsistent with

the following Plan provisions: (1) Transportation Element

Goal 1.0; (2) Transportation Element Objective 1.1; and (3)

Equestrian Preserve Element Objective 1.3.

39. The existing Village Comprehensive P lan was adopted

in 1999, and subsequently reviewed and determined to be "in

compliance" by the Department.

40. The Department’s final determination of compliance

included a determination that the provisions of the Village's

original Comprehensive Plan were i nternally consistent and

supported by adequate date and analysis.

41. In determining the internal consistency of the

Amendment with existing provisions of the Comprehensive Plan,

each Comprehensive Plan Goal and its umbrella Objectives and

Policies must be re ad and considered together. It is not

appropriate to read and interpret an individual Policy in

isolation.

42. Maintaining the high quality of the equestrian

lifestyle for the Equestrian Preserve Area is a major goal for

the Villageansportation Policy 1.1.19 recognizes the

unique character of the Equestrian Preserve Area, and the need

to preserve it, by requiring the Village to "implement its

system of streets and roads in coordination with the system of

equestrian trials and other equestrian facilitie s set forth in

the Goals, Objectives and Policies of the Equestrian Element."

43. Limiting the speed for through - traffic and

discouraging cut - through traffic is consistent with Goal 1.0

and Objective 1.1 of the Transportation Element. The

Amendment accomplis hes this by limiting the Rural Arterial

roads to two lanes, and adding medians and turn lanes to those

roadways.

44. Such traffic limitations are required by the

Equestrian Preservation Element. In that Element's data and

analysis section, it is stated that the Village will adopt an

LOS of E for roads within the Equestrian Preserve Area in

order to protect that area from increasing speeds by widening

the rural collector roads to four lanes.

45. Policy 1.3.3 of the Equestrian Preservation Element

addresses this c oncern and provides that roadways within the

Equestrian Preserve shall be maintained as two - lane facilities

with adopted LOS E. This Policy was found to be internally

consistent with Transportation Goal 1.0 and Objective 1.1 and

Equestrian Preservation El ement Objective 1.3 when the

existing Village Plan was found to be "in compliance."

46. Policy 1.3.1 of the Equestrian Preservation Element

does not distinguish between classifications of roadways. The

Village interprets Policy 1.3.3 to apply to all classe s of

roadways within the Equestrian Preserve regardless of

classifications. The Village's planning expert, Mr.

Schofield, testified that, in his opinion, this interpretation

is reasonable.

47. Mr. Basehart, Polo's planning expert, testified that

Policy 1.3.3 of the Equestrian Preservation Element was

intended to address only local roads and collectors because

the original Plan did not provide for rural arterials, and

that the Village had always intended that the two roadway

segments be four - laned. However, th e Transportation Element's

Future Transportation Map of the existing Village Plan depicts

the two roadway segments as two - lane facilities consistent

with Policy 1.3.3 of the Equestrian Element.

48. Adopting an LOS standard of E for the newly created

Rural A rterial roads and limiting those roadways to two lanes

is consistent with Transportation Element Goal 1.0 and

Objective 1.0.

49. By continuing to require Equestrian Policy 1.3.3's

two - lane requirement and LOS of E for future roads within the

Equestrian Preser ve Area, the Amendment is consistent with

that Policy.

Data and Analysis : The Pinder - Troutman Traffic Analysis

50. As noted herein, Polo raised three issues related to

the Amendment's data and analysis. Each of those issues

relates to the sufficiency of a r eport prepared by traffic

consultants and relied on by the Village as data and analysis

to support the Amendment. The March 2001 report is referred

to herein as the "Pinder - Troutman Report."

51. The validity of the data, as collected, is not in

dispute. Po lo's traffic engineer, Mr. Rennebaum, accepted the

accuracy of the count data in reaching his conclusions.

52. Prior to the adoption of the Amendment, the Village

was experiencing traffic capacity problems with the two

roadway segments. The Village asked Pin der - Troutman whether

the traffic volume and growth in the area justified a Plan

change. To address the problems, in January 2001, the Village

retained Pinder - Troutman Consulting, Inc. (Pinder - Troutman) to

do a traffic analysis of the two roadway segments and to make

recommendations for solving the problem.

53. Pinder - Troutman performed the analysis and submitted

an initial report on February 6, 2001, and a final report on

March 1, 2001, i.e. , the Pinder - Troutman Report.

54. In the February 6, 2001, report, Ms outman, the

author of this report, noted that the roadways for the

Equestrian area are limited to two lanes with a LOS of E and

that in accordance with the Village's adopted Transportation

Element, this roadway cross section and LOS correlate to an

ado pted peak hour directional service volume of 900. (This

service volume was derived from the Florida Department of

Transportation (FDOT) 1995 LOS Manual, Table 5 - 1, for

Urbanized Area arterials.) Directional volumes were derived

from count data and annual average conditions examined.

Because of the limited count data available for the roadway

links in question, peak season factors and historic growth

rates were developed, based on available count data for area

roadways. An historic growth rate of 4.73 pe rcent was

applied. One conclusion reached was that the adopted two - lane

LOS E service volume of 900 was projected to be exceeded in

one year for Lake Worth Road.

55. In the February 6, 2001, report, Pinder - Troutman

concluded that "in order to ensure operat ion at adopted LOS D

standards, in the near future the inclusion of a four - lane

cross - section in the equestrian area is recommended." The

February report discussed one option for creating additional

capacity on the roadway segments.

56. Thereafter, the Villa ge requested Pinder - Troutman to

consider, in part, whether the Plan’s classification of the

road segments was appropriate. The February and later March

studies followed the same methodology, examining growth and

the traffic along the corridor. (The Febru ary study was

attached to the March study.)

57. The March 1, 2001, Pinder - Troutman Report considered

various alternatives for improving service volumes to the

South Shore Boulevard and Lake Worth Road segments. Turn

lanes and medians were specifically evalua ted, both of which

are design features which increase safetyaffic data was

collected along the corridor, and morning and afternoon

intersection turning movement counts were conducted at four

locations. Twenty - four hour count data collected by the

Vil lage and Palm Beach County were also utilized. The FDOT

1998 LOS Handbook was also utilized to examine the potential

for creating additional capacity with the construction of

auxiliary turn lanes. A two - tier analysis was performed which

included consider ation of the appropriateness of utilizing

"the category" for "unsignalized uninterrupted flow" for the

roadway segments.

58. Based upon observations of the roadway segments,

Ms. Troutman testified that there was a minimal amount of

traffic entering and exiti ng the driveways on the roadway

segments and that the fixed traffic signals only existed at

the ends of the roadway segments. In her judgment, this meant

that the flow of traffic was uninterrupted, notwithstanding

the placement of a flashing signal at the intersection of

South Shore Boulevard and Lake Worth Road (which Msoutman

treated as "a fully functional signal"), which is a mile from

the traffic signal at the intersection of South Shore

Boulevard and Pierson Road, and a traffic signal (flashing

ye llow signal) at the fire station, which flashes only during

emergencies, and is not considered "as a fully - operational

signal." See Findings of Fact 70 - 74.

59. Based on its traffic study and analysis, Pinder -

Troutman concluded that LOS D could be maintained on the two

roadway segments for at least five years without widening to

four lanes 1 if the new roadway category of "Rural Arterial"

and service volumes for these segments are adopted and a

median with turn lanes is provided. 2

60. In the Joint Prehearing Sti pulation, Polo alleged

that there are three specific deficiencies in the Pinder -

Troutman Report’s data and analysis. Specifically, Polo

alleged that the Report was inadequate because it: (1)

utilized one day of data instead of three; (2) did not

properly account for future growth; and (3) did not include a

safety analysis.

61. Regarding the traffic counts, using a one - day traffic

count does not invalidate the traffic analysis. For traffic

studies like the Pinder - Troutman Report, a one - day traffic

count is the standard procedure approved by Palm Beach County

and the FDOT. The FDOT requires three days of counts only

when variables or characteristics of a roadway are being

changed, and no variables are being changed in the Pinder -

Troutman report. Polo's expe rt, Mr. Rennebaum, stated that

the Pinder - Troutman Report did not change any variables.

Further, Mr. Rennebaum testified that he also typically uses a

one - day traffic count, and that a one - day traffic count is

professionally acceptable. Mr. Rennebaum did not collect any

new data on or perform an independent analysis of the roadway

segments. However, although Mr. Rennebaum accepted the count

data as accurate, he was critical of the use of a one - day

count versus a three - day count because, according to Mr.

Rennebaum, FDOT "typically requires three day counts."

62. Pinder - Troutman took traffic counts in the middle of

the week at peak hours. It is professionally accepted

standard practice to conduct traffic studies during the middle

of the week rather than on we ekends.

63. Pinder - Troutman used the best available data in its

traffic analysis.

64. In its traffic analysis, Pinder - Troutman used a

future annual growth rate of 4.73 percent. This rate was

based on the historical growth rate of the areas adjacent to

the S outh Shore Boulevard and Lake Worth Road segments. This

rate was conservative because there has actually been negative

growth in the area. The growth rate Msoutman used was

professionally acceptable.

65. The historic growth rate was based on informatio n

provided by Palm Beach County. There was no historic data

available for the two roadway segments. Only recently have

Palm Beach County and the Village begun to collect data for

the two roadway segments in dispute.

66. The growth rate took into considera tion future

development that had been approved by development orders,

including the Village of Wellington Mall and the Mento

property. As the growth rate utilized in the study already

projected future growth and it did not appear that those

developments wo uld add to those anticipated impacts, the Mall

and Mento developments were not specifically added to the

projected 4.73 percent growth rate.

67. The methodology used in developing the historic

growth rate is professionally acceptable.

68. Polo did not offer p ersuasive evidence that the

growth rate used in the Pinder - Troutman Report was inaccurate

or inadequate. Polo's traffic expert, Mr. Rennebaum, had not

conducted a growth rate analysis to determine if Pinder -

Troutman's growth rate was correct, and had not formed an

opinion on the growth rate.

69. Regarding safety issues, the Pinder - Troutman Report

did not expressly discuss safety because the report was a

capacity analysis. Experts for both the Village and Polo

testified that safety is primarily a design fea ture, more

appropriately considered and addressed at the design stage of

a roadway. However, the Pinder - Troutman Report does include

safety as a consideration; it considered and evaluated turn

lanes and medians, in conjunction with two - lane roads, which

a re safety features. Mr. Rennebaum agreed that turn lanes and

medians are relevant safety considerations.

70. Although Polo did not identify it as an issue in the

Joint Prehearing Stipulation, Mr. Rennebaum opined that the

un - signalized uninterrupted flow ana lysis used by Pinder -

Troutman for the two road segments was inappropriate. The

issue is at least the subject of fair debate.

71. According to Mr. Rennebaum, Pinder - Troutman

inappropriately treated the two road segments as a freeway

because the uninterrupted flow analysis only applies to

freeways and un - signalized sections of rural highways and

because the roadway segments are not un - signalized segments.

However, Ms. Troutman testified that the FDOT manual provides

that both arterials and freeways may be anal yzed under the un -

signalized uninterrupted flow category. Pinder - Troutman

treated the two roadway segments as an arterial for purposes

of the uninterrupted flow analysis which is provided for in

the FDOT manual. See Finding of Fact 58.

72. The rural arteria l classification of the two roadway

segments is appropriate. The term "rural" is used to indicate

that the roads are located in the Equestrian Preserve which is

the "rural" area of the Village. The arterial classification

is appropriate because the two r oadways currently function as

arterials and will continue to do so after implementation of

the Amendment. See endnote 2.

73. The weight of the evidence indicated that the two

roadway segments currently function as arterials and will

continue to operate as ar terials if the Amendment is

implemented. As noted by Msoutman: "The change in

classification does not change how the roadway operates. It's

already operating as an arterial today. It's already

operating at an uninterrupted. All we're doing is chang ing

the classification to make it consistent with how it operates.

It will not change how the road operates."

74. It is professionally acceptable to use the

uninterrupted flow analysis on the two roadway segments.

Litigation Costs and Attorney's Fees Shoul d Not Be Assessed

Against Polo

75. Polo raised a reasonable dispute regarding the

traffic analyses prepared by Pinder - Troutman. For the most

part, experts supported Polo's positions, but their testimony

and other evidence were not sufficient to overcome the

statutory burden. Polo did not prove that the Amendment is not

"in compliance." Nevertheless, on this record, it can not be

concluded that Polo participated in this proceeding for an

improper purpose.

CONCLUSIONS OF LAW

Jurisdiction

76. The Division of Admi nistrative Hearings has

jurisdiction to conduct a hearing on the subject matter of

this proceeding. Sections 120.569, 120.57(1), and

163.3184(9), Florida Statutes.

Standing

77. Polo is an "affected person" with standing to

participate as a party in this proc eeding pursuant to Section

163.3184(1)(a), Florida Statutes. The evidence established

that Polo owns real property within the boundaries of the

Village of Wellington, and that Polo, through its

representatives, timely commented to the Village regarding th e

Amendment.

Burden of Proof

78. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceeding. Young v. Department of Community

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

79. Section 163. 3184(9)(a), Florida Statutes, imposes the

burden of proof on the person challenging a plan amendment

that has been determined by the Department to be "in

compliance."

80. "In compliance" means consistent with the requirements

of Sections 163.3177, 163.3178, 16 3.3180, 163.3191, and

163.3245, Florida Statutes, the State Comprehensive Plan, the

Regional Policy Plan, and Rule 9J - 5, Florida Administrative

Code. See Section 163.3184(1)(b), Florida Statutes.

81. Because the Department initially issued a Notice of

Intent to find the Amendment adopted by Ordinance Number 2001 -

011 "in compliance," this Amendment shall be determined to be

"in compliance" if the local government’s determination of

compliance is "fairly debatable" as set forth in Section

163.3184(9)(a), Florid a Statutes. Polo has the burden of

demonstrating beyond fair debate that the Amendment is not "in

compliance."

82. The term "fairly debatable" is not defined in Chapter

163, Florida Statutes, or Rule 9J - 5, Florida Administrative

Code. The Supreme Court of Fl orida has opined, however, that

the fairly debatable standard under Chapter 163, Florida

Statutes, is the same as the common law "fairly debatable"

standard applicable to decisions of local governments acting

in a legislative capacity. In Martin County v. Yusem , 690 So.

2d 1288, 1295 (Fla. 1997), the Court opined: "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." (citation omitted).

Qu oting from City of Miami Beach v. Lachman , 71 So. 2d 148,

152 (Fla. 1953), the Court stated further: "[A]n ordinance

may be said to be fairly debatable when for any reason it is

open to dispute or controversy on grounds that make sense or

point to a logic al deduction that in no way involves its

constitutional validity." Martin County v. Yusem , 690 So. 2d

at 1295. Nevertheless, "local government action still must be

in accord with the procedures required by Chapter 163, Part

II, Florida Statutes, and loca l ordinances." Id. (citation

omitted).

Data and Analysis: The Pinder - Troutman Traffic Analysis

83. Polo contends that the Amendment is not based upon

relevant and appropriate data and analysis as required by

Section 163.3177(6), (8) and (10), Florida Statut es, and Rule

9J - 5.005(2)(a), Florida Administrative Code. Specifically, as

set forth in the Joint Prehearing Stipulation, Polo alleges

that the Pinder - Troutman Report is deficient because it: (1)

utilized only one day of data rather than three days; (2) did

not properly account for future growth; and (3) did not

include a safety analysis.

84. Any amendment to a comprehensive plan must be based

upon appropriate data. Although such data need not be

original data, local governments are permitted to utilize

ori ginal data as long as appropriate methodologies are used

for data collection. Section 163.3177(8) and (10)(e), Florida

Statutes.

85. Rule 9J - 5.005(2), Florida Administrative Code,

requires that, in order for a plan provision to be "based"

upon relevant and a ppropriate "data," the local government

must "react to it in an appropriate way and to the extent

necessary indicated by the data available on that particular

subject at the time of adoption of the plan or plan amendment

at issue." The data must also be t he "best available existing

data" "collected and applied in a professionally acceptable

manner." Rule 9J - 5.005(2)(a) - (c), Florida Administrative

Code; Section 163.3177(10)(e), Florida Statutes.

86. However, the data and analysis which may support a

plan amen dment are not limited to those identified or actually

relied upon by a local government. All data available to a

local government in existence at the time of the adoption of

the plan amendment may be relied upon to support an amendment

in a de novo procee ding. Zemel v. Lee County, et al. , 15

F.A.L.R 2735 (DCA June 22, 1993), aff’d 642 So. 2d 1367 (Fla.

1st DCA 1994). See also The Sierra Club, et al. v. St. Johns

County, et al. , Case Nos. 01 - 1851GM and 01 - 1852GM (DCA Final

Order July 30, 2002)("The ALJ ne ed not determine whether the

[local government] or the Department were aware of the data,

or performed the analysis, at any prior point in time."

(citation omitted.)) Analysis which may support a plan

amendment, however, need not be in existence at the ti me of

the adoption of a plan amendment. See Zemel , supra . Data

which existed at the time of the adoption of a plan amendment

may be subject to new or even first - time analysis at the time

of an administrative hearing challenging a plan amendment.

Id.

87. Th e Pinder - Troutman Report, in analyzing the capacity

of the two roadway segments, evaluated several factors,

including: LOS standards; maintaining the two roadways as

two - lane facilities; turn lanes and medians; and the

reclassification of the two roadways to Rural Arterial. These

factors are relevant and appropriate to the Amendment adopted

by the Village.

88. The Pinder - Troutman Report utilized the best

available data in the form of the best traffic counts

available from Palm Beach County and the Village w hich

consisted of the one - day count taken by Pinder - Troutman.

Polo's expert traffic engineer accepted the accuracy of the

one - day count and did not identify or provide any better data

sources.

89. The Pinder - Troutman Report employed professionally

acceptab le methodologies. The use of one day’s worth of

traffic counts was professionally acceptable because there

were no variables changed in the study to trigger FDOT’s

requirements for three days of counts. Polo's expert

testified that a one - day count did no t invalidate the Pinder -

Troutman traffic analysis, confirmed that Pinder - Troutman did

not change any variables, and further that he typically uses a

one - day traffic count which is professionally acceptable. The

calculation and use of the historic growth r ate in the Pinder -

Troutman Report are professionally acceptable. Polo presented

no persuasive evidence to show that the growth rate was not

calculated in a professionally acceptable manner. Finally,

Pinder - Troutman's use of un - signalized uninterrupted fl ow

analysis on the two roadway segments, as provided in the

FDOT’s manual, was professionally acceptable.

90. Polo did not establish that safety was an appropriate

issue in this proceeding because of the scope of the

Amendment. Polo's expert admitted that sa fety is customarily

addressed at the design phase of roadways. However, safety

was considered in the Pinder - Troutman Report because of its

evaluation of safety features such as turn lanes and medians.

Polo's expert agreed that turn lanes at intersections and

medians are relevant safety considerations. Therefore, safety

was considered to the extent that it is relevant to the

Amendment.

91. The persuasive evidence establishes that the "rural

arterial" classification proposed by the Amendment for the two

roadw ay segments is appropriate. The term "rural" connotes

that the two roadways are in the Equestrian Preserve. The

roadway segments currently operate as arterials and will

continue to operate as arterials after they are reconstructed

as divided roads with a median and turn lanes.

92. Polo did not prove beyond fair debate that the

Amendment is not supported by appropriate data and analysis.

This record contains appropriate data and analysis to support

the Amendment at issue in this proceeding. This includes, b ut

is not limited to, the data and analysis supporting the

existing Village Comprehensive Plan, Ordinance No. 2001 - 11,

and supporting documentation, and the Pinder - Troutman traffic

analysis. Based on the data and analysis presented by the

Village, it is a t least subject to fair debate that the

Amendment is based upon adequate data and analysis.

Internal Consistency

93. Polo contends that the Amendment is not consistent

with other provisions of the Plan. Section 163.3177(2),

Florida Statutes, and Rule 9J - 5.00 5(5)(a), Florida

Administrative Code, require the elements of a comprehensive

plan to be internally consistent. To be "internally

consistent," comprehensive plan elements must not conflict.

If the objectives do not conflict, then they are coordinated,

re lated, and consistent. See generally Schember v. Department

of Community Affairs , Case No. 00 - 2066GM (DCA Final Order

Oct. 24, 2001).

94. Polo alleges that the Amendment is internally

inconsistent with Transportation Element Goal 1 and Objective

1.1, and Eq uestrian Preservation Element Objective 1.3. The

Amendment is not internally inconsistent with these provisions

of the Plan. The existing Plan, including Transportation

Element Goal 1 and Objective 1.1, and Equestrian Preservation

Element Objective 1.3 a nd Policy 1.3.3, have been previously

determined to be internally consistent.

95. Policy 1.3.3 of the Equestrian Preservation Element

provides that all roadways in the Equestrian Preserve shall be

two - lane facilities with adopted LOS E. The Village

interpr ets Policy 1.3.3, which does not distinguish between

classifications of roadways, to require all roads in the

Equestrian Preserve to be two - lane roads with LOS E. The

Village's interpretation is reasonable and is consistent with

the plain language of Poli cy 1.3.3. Capers v. State , 678 So.

2d 330, 333 (Fla. 1996) ("The plain meaning of statutory

language is the first consideration of statutory

construction.")

96. The Amendment, which maintains the two roadway

segments as two - lane facilities with adopted LOS E , does not

conflict with and is not inconsistent with the above - cited

provisions of the Plan. Thus, it is at least subject to fair

debate that the Amendment is internally consistent with the

Plan.

Ultimate Conclusion

97. For all of the foregoing reasons, Pol o did not prove

beyond fair debate that the Amendment is not "in compliance."

Litigation Costs and Attorney's Fees Should Not Be Assessed

Against Polo

98. Pursuant to Section 120.595(1)(b) and (c), Florida

Statutes, an award of litigation costs, including re asonable

attorney's fees, may be awarded in a Section 120.57(1)

proceeding if the administrative law judge finds the

nonprevailing party participated for an "improper purpose"

within the meaning of Section 120.569(2)(e), Florida Statutes.

(Likewise, sanct ions, including the imposition of reasonable

expenses including a reasonable attorney's fee, may be imposed

against a person for filing a motion, pleading, or other paper

in an administrative proceeding for an improper purpose.

Sections 120.569(2)(e) and 163.3184(12), Florida Statutes. A

separate Final Order has been entered denying the Village's

Motion for attorney's fees and costs pursuant to these

subsections.)

99. The definition of "improper purpose" in Section

120.569(2)(e), Florida Statutes, includes a "frivolous purpose

or needless increase in the cost of litigation." See also

Section 120.595(1)(e)1., Florida Statutes. A frivolous

purpose has been judicially defined as "one which is of little

significance or importance in the context of the goal of

a dministrative proceedings." Mercedes Lighting and Electrical

Supply, Inc. v. State, Department of General Services , 560 So.

2d 272, 278 (Fla. 1st DCA 1990).

100. Whether an improper purpose exists is a question of

fact determined by the administrative law ju dge's review of

the record presented by the parties. Burke v. Harbor Estates

Associates, Inc. , 591 So. 2d 1034, 1037 (Fla. 1st DCA 1991).

See also Mercedes Lighting , 560 So. 2d at 278. (The

determination of improper purpose is based on the record, not

a party's subjective intent.) In the absence of "direct

evidence of the party's and counsel's state of mind, we must

examine the circumstantial evidence at hand and ask,

objectively, whether an ordinary person standing in the

party's or counsel's shoes wou ld have prosecuted the claim."

Procacci Commercial Realty, Inc. v. Department of Health and

Rehabilitative Services , 690 So. 2d 603, 608 (Fla. 1st DCA

1997)(citation omitted.)

101. Polo raised a reasonable dispute regarding the

traffic analyses prepared by Pi nder - Troutman. For the most

part, experts supported Polo's positions, but their testimony

and other evidence were not sufficient to overcome the

statutory burden. Polo did not prove that the Amendment is not

"in compliance." Nevertheless, on this record, it can not be

concluded that Polo participated in this proceeding for an

improper purpose.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be issued concluding that

the Amendment adopted by the Village of Wellington in

Ordinance No. 2001 - 011 is "in compliance" as defined in

Chapter 163, Part II, Florida Statutes, and the rules

promulgated thereunder, and further, that the Department not

award attorney's fees and costs against Polo.

DONE A ND ENTERED this 29th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of October, 2002.

ENDNOTES

1 / Msoutma n opined that four - laning the roadway segments

would lead to more traffic into the Equestrian Preserve from

outside the Preserve and traffic at a higher speed.

2 / Msoutman explained that the term "rural" was used to

identify the road segments which a re within the Equestrian

community and that "arterial" was recommended because the

roadway segments function as arterials. Msoutman

confirmed that she was using "the arterial category, not the

freeway category." According to Msoutman, there is no t

likely to be a change in operation of the roadway segments if

the Amendment is implemented, except for "turn lanes to

provide a more safe and efficient access coming into [the]

driveways."

COPIES FURNISHED :

Karen A. Brodeen, Esquire

Department of Com munity Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399 - 2100

Thomas G. Pelham, Esquire

John H. Holley, Esquire

909 East Park Avenue

Tallahassee, Florida 32301 - 2646

Christine P. Tatum, Esquire

Village of Wellington

14000 Greenbriar Boulevard

Wellington, Florida 33414 - 7615

Lawrence M. Weisberg, Esquire

6877 Southwest 18th Street, Suite 141

Boca Raton, Florida 33433 - 7045

Steven M. Siebert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 1 00

Tallahassee, Florida 32399 - 2100

Cari L. Roth, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.