03-000718GM Anna R. Current vs. Town Of Jupiter And Department Of Community Affairs Status: Closed Recommended Order on Friday, October 24, 2003.

Summary: Challenge to the Comprehensive Plan Amendment primarily on the ground that the Town did not follow its adoption procedures, but that it is not a compliance review criterion challenge fails, as the Amendment is "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNA CURRENT, )

)

Petitioner, )

)

vs. )

) Case No. 03 - 0718GM

TOWN OF JUPITER and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents. )

_ )

RECOMMENDED OR DER

On July 30, 2002, final administrative hearing was held in

this case in Jupiter, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Anna Current, pro se , through fin al

hearing

711 Ryan Road

Jupiter, Florida 33477

Michael W. Morell, Esquire, post - hearing

Post Office Box 18649

West Palm Beach, Florida 33416 - 8649

For Town: Thomas J. Baird, Esquire

Thomas J. Baird, P.A.

11891 U.S. H ighway One

Suite 105

North Palm Beach, Florida 33408 - 2864

For Department of Community Affairs:

Timothy E. Dennis, Esquire

David L. Jordan, General Counsel

Department of Community Affairs

2555 Shumard Oak Boule vard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The issue in this case is whether Comprehensive Plan

Amendment 2002 - 02, adopted by the Town of Jupiter (Town) as

Ordinance 62 - 02, is "in compliance" as defined in Section

163.3184(1)(b), Fl orida Statutes. 1

PRELIMINARY STATEMENT

After the Town's adoption of Amendment 2002 - 02

(Amendment), the Department of Community Affairs (DCA) gave

notice of intent to find the amendment "in compliance."

Petitioner, Anna Current, pro se , filed a Petition for

Administrative Hearing (Petition) on March 28, 2003. DCA

referred the matter to the Division of Administrative Hearings

(DOAH). In accordance with the Joint Response to Initial

Order, the case was set for hearing in Jupiter, Florida, on

July 30, 200 3.

At the conclusion of an Order on Motion to Compel and

Motion for Protective Order entered on May 16, 2003, it was

noted:

[A]lthough the bulk of the Petition for

Administrative Hearing in this case

complains about the adequacy of the

published notice of the transmittal and

adoption hearings, the relevance of

discovery on those issues is doubtful since

consistency with notice requirements is not

a compliance criterion under Section

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

Emerald Lakes Residents' Ass'n, I nc. vs.

Collier County and Dept. of Community

Affairs , DOAH Case No. 02 - 3090GM, 2003 WL

329685, at *11 - 12 (Div. Admin. Hrgs. 2003),

adopted with two minor exceptions not

pertinent here in the Final Order entered

by DCA on May 8, 2003.

On June 16, 2003, Petitioner filed a copy of a letter to

counsel for the Town and DCA requesting "permission" to amend

her Petition "by identifying the issues of disagreement as

material fact, as well as making some minor corrections and

statements to my Petition." The Tow n opposed "identifying

issues of disagreement as material fact" as being "highly

irregular"; DCA did not respond. Based on the filings, an

Order Granting Leave to Amend for these purposes was entered on

June 25, 2003.

On June 27, 2003, Petitioner filed her Amended Petition.

In addition to the overall "not - in - incompliance" issue,

Petitioner appeared to attempt to plead numerous sub - issues in

the original Petition and in the Amended Petition, including:

standing; public participation; publication of noti ce

requirement for three public hearings (local planning agency,

transmittal and adoption); the adequacy of the published notice

of the transmittal and adoption hearings; home rule authority

of local governments to adopt planning and public participation

p rograms that exceed minimum statutory and rule criteria; DCA's

compliance review responsibilities; data and analysis; the

relationship of the comprehensive plan to implementing land

development regulations; annexation; findings of blight within

community r edevelopment agencies; and private property rights.

On July 14, 2003, the Town filed an exhibit list

consisting of nine exhibits and reserving the right to add

exhibits necessary for rebuttal or impeachment. On July 23,

2003, Petitioner filed her Corre cted List of Exhibits, which

included a general category of exhibits "listed by Respondents

and/or necessary for rebuttal." On July 29, 2003, DCA and the

Town filed a joint Prehearing Statement which listed their 12

joint exhibits, DCA's three exhibits, a nd the Town's five

exhibits. The joint exhibits included an exhibit titled "Proof

of Publication and Notice of Publication and Notice of Town's

P&ZC Meeting of August 13, 2002," which was not included on any

previous exhibit list. On July 29, 2003, Petit ioner also filed

a prehearing statement which was styled as a "Prehearing

Stipulation." Petitioner's prehearing statement agreed to the

admission of all of the Town's and DCA's exhibits.

At the formal hearing, Petitioner testified in her own

behalf and sought to have admitted in evidence several exhibits

from a book that contained 105 exhibits, 2 103 individually

numbered (apparently not in any logical manner) in accordance

with Petitioner's Corrected List of Exhibits filed on July 23,

2003, and all subs equently organized by tabs into nine

categories reflecting the order in which Petitioner intended to

refer to them during her testimony. 3 Several of the 105

exhibits (namely, those in tabs 8 and 9) were not offered.

Several were received (most over objec tions on grounds of

hearsay and relevance), namely, Petitioner's curriculum vita in

tab 1, Petitioner's Exhibits 3, 6a, 13a, 18, 23, 68, 69, 72,

and 78. Objections (mostly on grounds of relevance) to several

of the offered exhibits were sustained (includi ng all exhibits

in Tab 5) -- specifically, Petitioner's Exhibits 6, 14, 25, 29,

48 - 53, 55 - 57, 64 - 69, 81 - 85, 87 - 90, 92 - 95, 99, 102 - 109, and an

unnumbered newspaper article in tab 7; but the rulings on the

objections to Petitioner's Exhibits 55 and 56 are reco nsidered,

those objections are now overruled, and those exhibits are

received. Ruling was reserved on objections to several

exhibits offered -- namely, 1a, 1b, 5b, 9, 10, 12, 25, 26, 30,

30a, 31, 34 - 41, 73 - 75, and 79; the objections are now overruled

as to 1a, 5b, 9, 10, 12, 30, 30a, 31, 34 - 41, 73, and 75, which

are now received 4 ; objections as to the others are sustained.

The Town called one witness, David Kemp, who is the Town's

Principal Long Range Planner. The Town also had Town Exhibits

1 - 11 admitte d into evidence. DCA called its Senior Planner,

Joseph Addae - Mensa, as an expert witness in comprehensive

planning. DCA had DCA Exhibits 1 - 3 admitted in evidence.

Neither the Town nor DCA offered into evidence the exhibit

titled "Proof of Publication an d Notice of Public Hearing for

Town's Planning and Zoning Commission Meeting held August 13,

2002," which was on the list of Respondents' Joint Exhibits in

their joint Prehearing Statement.

After presentation of the evidence, DCA requested a

transcript o f the final hearing, and the parties were given ten

days from the filing of the transcript in which to file

proposed recommended orders (PROs). The transcript was filed

on August 18, 2003. On August 25, 2003, counsel for Petitioner

filed a notice of appe arance as counsel of record. On

August 27, 2003, counsel for Petitioner filed a request for

extension of time to file PROs and to enlarge the page limit

for PROs. The Town and DCA filed written responses in

opposition to the request. On August 29, 2003, an Order

Extending Time was entered extending the time for PROs to

September 8, 2003, but denying the request to enlarge the page

limit. The Town later requested an additional extension of one

day due to facsimile transmission difficulties; neither DCA n or

Petitioner opposed the extension.

On September 3, 2003, counsel for Petitioner filed an

Expedited Motion to Request Official Recognition. A telephone

hearing was held on September 4, 2003. Based upon the motion

and oral arguments, an Order on Offici al Recognition was

entered on September 5, 2003, in which official recognition was

granted as to some documents but denied as to others.

Separate PROs were filed by the Petitioner, Town and DCA.

In Petitioner's PRO, all of the issues raised in the orig inal

and amended petitions were waived except the overall "not - in -

compliance" issue, and the specific sub - issues of: standing;

public participation; publication of notice requirements for

three public hearings (land planning agency, transmittal and

adopti on); the adequacy of the published notice of the

transmittal and adoption hearings; home rule authority of local

governments to adopt planning and public participation programs

that exceed minimum statutory and rule criteria; and DCA's

compliance review re sponsibilities. All of the PROs were fully

considered in preparing this Recommended Order.

The Town's PRO contained a request that DOAH reserve

"jurisdiction to determine the entitlement to an award of

attorney's fees and costs and to award reasonable attorney's

fees and costs should it deem appropriate . . . ." On October

7, 2003, Petitioner filed a Notice of Service of Petitioner's

Verified Motion for Sanctions against the Town of Jupiter under

Section 57.105, Florida Statutes, and Request that DOAH not

Issue the Recommended Order before October 30, 2003. Neither

the Town nor DCA responded to this last filing. At this time,

based on the following Findings of Fact and Conclusions of Law,

all requests relating to sanctions and assessment of attorneys'

fees are denied.

FINDINGS OF FACT

The Parties

1. Petitioner, Anna Current, resides at property on the

Jupiter River in the Town of Jupiter at 711 Ryan Road, Jupiter,

Florida 33477.

2. The Town of Jupiter (Town) is a municipality of the

State of Florid a whose address is 210 Military Trail, Jupiter,

Florida.

3. The Department of Community Affairs (DCA) is the state

land planning agency with the duty to review comprehensive plan

amendments pursuant to Sections 163.3164(20) and 163.3184.

The Amendment

4. Amendment 2002 - 02 (Amendment), which was adopted by

the Town's Ordinance 62 - 02, consists of four text amendments,

one amendment to the Transportation Map Series, and one

amendment to the future land use map (FLUM) element.

5. The first text amendment amends the Transportation

Element by adding Policy 2.2.6. Policy 2.2.6 requires updates

to the Town's Bicycle Transportation Master Plan.

6. The second text amendment amends the text of the

Conservation Element. Specifically, it amends Policy 1.2.5 to

reference the June 2000 as opposed to the December 1985 version

of the "Loxahatchee River National Wild and Scenic River

Management Plan."

7. The third text amendment adds two new policies to the

Intergovernmental Coordination Element of the Town’s

Comp rehensive Plan. These policies reference and adopt certain

parameters for the Western Corridor Interlocal Agreement, an

interlocal agreement between the Town, Palm Beach County and

Martin County.

8. The fourth text amendment amends certain tables

relat ed to Level of Service and Capacity Standards in the

Public School Facilities Element.

9. The fifth change adds Figures 10 and 10a and amends

Figures 5, 6 and 7 of the Transportation Map Series.

10. The sixth and final section of the Amendment changes

the Future Land Use Map for the Town of Jupiter. Specifically,

it redesignates 12.3 acres in Jupiter Community Park from the

recreation land use category to the conservation land use

category.

The Adoption Process

11. On August 13, 2002, the Town's Pl anning and Zoning

Commission, acting as the local planning agency (LPA), held a

public hearing and recommended that the Jupiter Town Council

approve seven separate comprehensive plan amendments. These

amendments consisted of five text amendments, an amend ment to

the Transportation Map Series (with modifications), and a

Future Land Use Map (FLUM) amendment.

12. Petitioner testified that this LPA public hearing was

not advertised in advance. The Town's witness, David Kemp, who

is the Town's Principal Lon g Range Planner, did not dispute

Petitioner's testimony; instead, he testified that he did not

recall whether this LPA public hearing was advertised.

13. There was documentary evidence that, on July 7, 2003,

the Town Planner sent an e - mail message to th e Town's Clerk

informing her that, with regard to Petitioner's request for

"proof of publication" of the advertisement for the LPA meeting

on August 13, 2002, the Town Planner's staff had reviewed all

relevant files and was unable to locate the requested p ublic

records.

14. There also was documentary evidence that the Town's

Records and Archives Manager notified the Town's Clerk by e -

mail on April 29, 2003, that Petitioner had requested a copy of

the "proof of publication" of the advertisement for the LP A

public hearing on August 13, 2002, and had been informed that

no advertisement was necessary since it was a regular meeting

of the LPA.

15. The minutes of the LPA's meeting on August 13, 2002,

show that the six component parts being considered as part of

the proposed Amendment 2002 - 02 were on the LPA's regular

meeting consent agenda. The minutes indicate that two of the

components were "pulled" from the consent agenda. The minutes

also indicate that no one in attendance at the meeting spoke on

the pr oposed amendments. The minutes do not reflect that the

LPA or any of its members invited public participation before a

vote was taken on the six components of the proposed

amendments.

16. Neither the Town nor DCA introduced evidence of an

advertisement for the LPA's meeting on August 13, 2002,

notwithstanding their listing of proof of publication of the

advertisement as a joint exhibit of the DCA and the Town in

their Joint Prehearing Statement, and Petitioner's stipulation

to its admissibility.

17. The minutes of the LPA meeting on August 13, 2002,

reflect that Petitioner was not present during the consent

agenda portion of the meeting. They indicate that she appeared

later for the regular agenda portion of the meeting and spoke

in favor of a site p lan/special exception/PUD application being

considered during that portion of the meeting.

18. On Tuesday, September 3, and Tuesday, September 17,

2002, the Jupiter Town Council held public hearings and

approved the transmittal of Ordinance 62 - 02, consi sting of all

seven of the proposed plan amendments recommended by the LPA,

to DCA.

19. The transmittal public hearing was held on a weekday

at least seven days after the advertisement for the public

hearing, which appeared in the Palm Beach Post , a news paper of

general circulation in the Town, on August 25, 2002. The

advertisement included the title of the proposed Ordinance 62 -

02, in bold:

AN ORDINANCE OF THE TOWN . . . AMENDING

ORDINANCE NO. 57 - 89, THE COMPREHENSIVE PLAN

OF THE TOWN . . . ; AMENDING THE TEXT OF THE

CONSERVATION, FUTURE LAND USE,

INTERGOVERNMENTAL COORDINATION, AND PUBLIC

SCHOOL FACILITIES ELEMENTS; AMENDING THE

TEXT AND MAP SERIES OF THE TRANSPORTATION

ELEMENT; PROVIDING FOR AN AMENDMENT TO THE

FUTURE LAND USE ELEMENT TO CHANGE THE L AND

USE DESIGNATION OF A 12.3 ACRE PROPERTY

LOCATED IN THE NORTHERN PART OF THE TOWN'S

COMMUNITY PARK AT 3377 CHURCH STREET FROM A

RECREATION DESIGNATION TO A CONSERVATION

DESIGNATION; . . . .

The advertisement also included a map showing the location of

the 12.3 - acre property.

20. At the transmittal hearing, the public was invited to

comment, and three individuals offered public comments.

21. On September 26, 2002, DCA received the proposed

amendments.

22. Although the Town requested that DCA not review the

Amendment or issue an Objections, Recommendations, and Comments

Report (ORC report), Petitioner requested a review and ORC

report, and DCA determined that a review and ORC report were

necessary, even if not requested by Petitioner.

23. DCA c onducted a review of the proposed amendments for

consistency with the requirements of Chapter 163, Part II,

Florida Statutes, Florida Administrative Code Rule 9J - 5, the

Treasure Coast Regional Planning Council Strategic Policy Plan,

and Chapter 187, Florid a Statutes (the State Comprehensive

Plan), and issued an ORC report to the Town of Jupiter on

November 27, 2002. The ORC report raised only one objection,

specifically to a text amendment that would allow for increased

densities in the Coastal High Hazard Area.

24. The Town Council held a public hearing on December

17, 2002, at which six of the seven proposed changes

contemplated by the transmitted proposed amendments were

adopted. (The Town did not adopt the amendment to which DCA

has objected in the ORC report.)

25. This adoption hearing was held on a weekday at least

five days after the advertisement for the public hearing

appeared in the Palm Beach Post , a newspaper of general

circulation in the Town. The advertising appeared on December

10, 200 2. The advertisement included, in bold, the same title

of the proposed Ordinance 62 - 02 as the transmittal hearing

advertisement, except that reference to the text change to the

Future Land Use Element was omitted. The advertisement also

included a map sh owing the location of the 12.3 - acre property

(as well as other properties affected by other ordinances being

advertised at the same time).

26. At the adoption hearing, Petitioner offered written

comments. There were no other comments or objections.

27. Petitioner attempted to prove that the Town failed to

meet a statutory requirement to provide sign - forms for

comprehensive plan amendment hearings. She proved that no

sign - in forms were provided for the LPA hearing on August 13,

2002. She did not pr ove that no sign - in forms were provided

for the transmittal hearings in September 2002 or for the

adoption hearing in December 2002.

28. On December 23, 2002, DCA received the Town’s adopted

Amendment 2002 - 02 for review. DCA conducted a review of

adopt ed Amendment 2002 - 02 for consistency with the requirements

of Chapter 163, Part II, Florida Statutes, Rule 9J - 5, the

Treasure Coast Regional Planning Council Strategic Policy Plan,

and Chapter 187, Florida Statutes (the State Comprehensive

Plan). Amendmen t 2002 - 02 was found to be "in compliance."

29. DCA's witness, Senior Planner, Dr. Joseph Addae -

Mensa, testified that DCA's review of an adopted plan amendment

includes verification that the local government held the

required advertised transmittal and a doption hearings.

According to his testimony, this ordinarily is accomplished by

a simple review to ascertain that the local government included

the usual statement in its submission to DCA to the effect that

the required advertised public hearings had be en held. In this

case, the Town's submission included such a statement, and

DCA's review went no further.

Town's Public Participation and

Advertising Requirements

30. Petitioner asserts that the Town's adoption of

Resolution No. 58 - 87 on December 1, 1 987, specified additional

or more stringent public participation and notice procedures

for the consideration and recommendation of comprehensive plans

and amendments by the Town's LPA and for the adoption of such

plans by the Town's governing body. Howeve r, Section 1 of the

Resolution stated:

The Town of Jupiter hereby adopts the

following procedures [for the LPA and Town

Council] to implement . . . [minimum]

criteria as established by [DCA] . . .

pending the enactment of permanent

provisions by Ordinanc e, provided, however,

that any failure by the Town to fully

comply with the technical requirements

hereof shall not be cause to invalidate the

adoption of any Amendments to the Jupiter

Comprehensive Plan which otherwise meet the

requirements of law . . . .

In addition, on March 3, 1998, the Town's new home - rule charter

became effective. It provided in Article VI that "procedures

for the adoption of ordinances and resolutions for the Town of

Jupiter shall be as made and provided by the Florida Statutes,

as may be hereafter amended and revised" and that the Town

Council "may provide, by appropriate action, requirements for

the adoption of ordinances and resolutions which are more

stringent than those set forth in the Florida Statutes."

31. There was no evidence of any subsequent "appropriate

action" to establish procedures that are "more stringent . . .

than those set forth in the Florida Statutes."

32. Resolution 58 - 87 was neither repealed nor re - enacted

after the effective date of the home - rule char ter. However, it

appears that the home - rule charter should be viewed as

repealing or superseding Resolution 58 - 87. In any event, for

purposes of this proceeding, as indicated, Resolution 58 - 87 did

not add any compliance review criteria to the "requiremen ts of

law."

Data and Analysis for the Conservation Element

33. Petitioner attempted to challenge the text amendment

to the Conservation Element of the Town’s Comprehensive Plan.

The Amended Petition states: "The restrictions placed on the

Loxahatchee River Buffer were hastily prepared, flawed, and

dubious in value. It was submitted without valid data and

analysis."

34. It was determined at the hearing that Petitioner

actually mistakenly was seeking to challenge either a

subsequent FLUM amendment co nsidered by the Town Council in

July, 2003, or land development regulations that were

considered by the Town Council in February, 2003. These are

not the changes to the Conservation Element of the Town’s

Comprehensive Plan adopted in Amendment 2002 - 02. T he amendment

at issue here merely changed a reference from the December 1985

version of the "Loxahatchee River National Wild and Scenic

River Management Plan" to the June 2000 plan.

35. Submitted with the Amendment was data and analysis in

the form of a staff report describing the procedural process

used to adopt the amendment to the Conservation Element, staff

analysis, and a narrative explanation of why this essentially

housekeeping item was needed.

36. Petitioner presented no evidence at hearing th at this

minor change to the Conservation Element was submitted without

adequate valid data and analysis.

Data and Analysis for the Transportation Element

37. Petitioner challenged the modification of

Transportation Map Series figures 5, 6 and 7, and on the basis

that they were supported by old data from 1999.

38. DCA did not raise this as an objection in their ORC

report. The Florida Department of Transportation ("FDOT") did

raise the issue of old data as an objection in its comment

letter to DCA dat ed October 21, 2002. After receipt of the

comment letter, however, Town Staff contacted FDOT regarding

the objection. Town Staff explained that the Town was

completing a transportation study related to the Indiantown

Road Corridor and indicated the Town' s commitment to

incorporating the data and analysis contained in the final

transportation study into the Transportation Element in a

subsequent round of comprehensive plan amendments.

39. At the final hearing, David Kemp, Principle Long

Range Planner fo r the Town, testified that the Transportation

Map Series amendments were to reflect only the possible

alignment of a future roadway, that the Town had utilized the

most current data based on the interlocal agreement and the

alignments shown in the interloc al agreement, and that the Town

had resolved the FDOT's concerns regarding the data.

40. Submitted with the Amendment was data and analysis in

the form of a staff report describing the procedural process

used to adopt the amendment to the Transportation Element and

Map Series, staff analysis which responded to FDOT's

objections, and a narrative explanation describing the changes

and why they were needed. Petitioner did not prove beyond fair

debate that the Transportation Map Series amendment was not

sup ported by data and analysis.

Other Substantive Issues

41. Other issues Petitioner may have raised in her

challenge to the compliance determination in this case either

were dropped or were unfounded, some having been mistakenly

directed to Town action ot her than the Amendment at issue in

this case.

CONCLUSIONS OF LAW

42. Section 163.3184(1)(b) sets out the compliance

criteria for this case:

"In compliance" means consistent with the

requirements of ss. 163.3177, 163.31776,

when a local government adop ts 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

inconsisten t with this part and with the

principles for guiding development in

designated areas of critical state concern.

43. Absent a statutory directive to the contrary, the

burden of proof generally is on the party (or parties)

asserting the affirmative of the issue in an administrative

proceeding. Young v. Dept. of Community Affairs , 625 So. 2d

831 (Fla. 1993); Balino v. Dept. of Health, etc. , 348 So. 2d

349 (Fla. 1st DCA 1977). In this case, DCA and the Town are

asserting the affirmative of the issue: that the Amendment is

in compliance, i.e. , that it is "consistent" with the

requirements listed in Section 163.3184(1)(a). However,

Section 163.3184(9)(a) alters the general rule.

44. Since DCA issued notice of intent to find the

Amendment to be "in complia nce," Section 163.3184(9)(a)

provides that the Amendment "shall be determined to be in

compliance if the local government's determination of

compliance is fairly debatable." This language has been

interpreted consistently as shifting the burden of proof t o the

party seeking to establish noncompliance.

45. It was held in Martin v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997):

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.

See B & H Travel Corp. v. State Dep't of

Community Affairs , 602 So. 2d 1362 (Fla.

1st DCA 1992). In other words, "[a]n

ordinance may be said to be fairly

debatable when for any reason it is open to

dispute or controvers y on grounds that make

sense or point to a logical deduction that

in no way involves its constitutional

validity." City of Miami Beach v. Lachman ,

71 So. 2d 148, 152 (Fla. 1953). The

procedural requirements inuring to a quasi -

judicial proceeding are dist inct from those

inuring to a legislative proceeding. See

generally City Envtl. Servs. Landfill, Inc.

v. Holmes County , 677 So. 2d 1327 (Fla. 1st

DCA 1996). However, we do point out that

even with the deferential review of

legislative action afforded by t he fairly

debatable rule, local government action

still must be in accord with the procedures

required by chapter 163, part II, Florida

Statutes, and local ordinances. Cf. David

v. City of Dunedin , 473 So. 2d 304 (Fla. 2d

DCA 1985) (finding null and void an

ordinance enacted in violation of the

notice provisions of the relevant

statutes). 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 to a logical

deduction that in no way involves its

constitutional validity.

46. In this case, Petitioner's primary contentions are

that the Amendment is not consistent with notice requirements

for LPA hearings under Section 163.3174(4)(a), 5 and for

adoption and transmittal hearings under Section 163.3184(15), 6

and with public participation requirements under Section

163.3181 7 and Rule 9J - 5.004. Of these, only Rule 9J - 5.004 is

listed as a compliance criterion under Section 163.3184(1)(b).

47. Rule 9J - 5.004 states:

(1) The local governing body and the local

planning agency shall adopt procedures to

provide for and encourage public

participation in the planning process,

including consideration of amendments to

the comprehensive plan and evaluation and

appraisal reports.

(2) The p rocedures shall include the

following:

(a) Provisions to assure that real

property owners are put on notice, through

advertisement in a newspaper of general

circulation in the area or other method

adopted by the local government, of

official actions that will affect the use

of their property;

(b) Provisions for notice to keep the

general public informed;

(c) Provisions to assure that there are

opportunities for the public to provide

written comments;

(d) Provisions to assure that the required

public hea rings are held; and

(e) Provisions to assure the consideration

of and response to public comments.

(3) Local governments are encouraged to

make executive summaries of comprehensive

plans available to the general public and

should, while the planning proc ess is

ongoing, release information at regular

intervals to keep its citizenry apprised of

planning activities.

48. Rule 9J - 5.004 implements Section 163.3181, which

states in pertinent part:

(1) It is the intent of the Legislature

that the public part icipate in the

comprehensive planning process to the

fullest extent possible. Towards this end,

local planning agencies and local

governmental units are directed to adopt

procedures designed to provide effective

public participation in the comprehensive

p lanning process and to provide real

property owners with notice of all official

actions which will regulate the use of

their property. The provisions and

procedures required in this act are set out

as the minimum requirements towards this

end.

(2) Dur ing consideration of the proposed

plan or amendments thereto by the local

planning agency or by the local governing

body, the procedures shall provide for

broad dissemination of the proposals and

alternatives, opportunity for written

comments, public heari ngs as provided

herein, provisions for open discussion,

communications programs, information

services, and consideration of and response

to public comments.

49. The Town's Amendment does not purport to adopt

procedures to "provide for and encourage publi c participation

in the planning process" (Rule 9J - 5.004) or to "provide

effective public participation in the comprehensive planning

process and to provide real property owners with notice of all

official actions which will regulate the use of their proper ty"

(Section 163.3181). Such procedures already are in place.

Essentially, Petitioner contends that the Town did not follow

its procedures and, in so doing, that its actions were not

consistent with the public participation requirements in

Section 163.31 81 and in Rule 9J - 5.004 when it adopted the

Amendment -- specifically, by not giving notice of the LPA

hearing on August 13, 2002, and by giving insufficient notice

of the transmittal and adoption hearings in September and

December 2002. 8

50. Although Sec tion 163.3181 and Rule 9J - 5.004 both

appear to direct local governments to adopt procedures, not

compel conduct in accordance with the procedures, Petitioner

contends that plan amendments are not "in compliance" if the

local government does not follow the adopted procedures (and

minimum procedural requirements reflected in the statute and

rule) in amending its comprehensive plan. In making this

argument, Petitioner relies on the case of Austin, et al. v.

Dept. of Community Affairs, et al. , DOAH Case Nos. 8 8 - 6338GM

and 89 - 0291GM, 1989 WL 645182 (DOAH June 2, 1989; DCA Aug. 20,

1990, and Sept. 29, 1989).

51. In Austin , DCA reviewed the entirety of the

Comprehensive Plan of the City of Cocoa under the Local

Government Comprehensive Planning and Land Develop ment

Regulation Act, Chapter 163, Part II, Florida Statutes (1985),

commonly referred to as the Growth Management Act, and found

the City's Plan to be "in compliance." In the Recommended

Order (RO) entered on June 2, 1989, on the petition filed by

Austin, et al. , challenging DCA's "compliance" determination,

findings were made regarding preparation and transmittal of the

proposed plan (including LPA meetings and public notices

given), DCA's review and ORC report on the proposed plan

(including, in RO Findi ng 82, a finding as to a statement in

the ORC report that "the City's public participation procedures

[were] in violation of Rule 9J - 5.004(2)(c) and (e)" because

they lacked "provisions to assure that the public has

opportunities to provide written comment s and would receive

responses to their comments"), and the City's review of the ORC

report and adoption of the City's Plan (including meetings and

public notices given). The RO also included the following

"Ultimate Findings as to Public Participation":

18 3. The public participated in the

comprehensive planning process to the

fullest extent possible. The City Council

adopted procedures to provide effective

public participation, including notice to

real property owners of all official action

affecting the use of their property.

184. Any deficiency in the procedures is

immaterial. The Planning and Zoning Board

duly discharged its responsibilities as the

local planning agency under the Act. The

City Council and Planning and Zoning Board

amply advertised th eir many public hearings

and provided reasonable opportunity for

written comments and open discussion.

Comments from the public appear to have

received fair consideration. The City

disseminated proposals and other

information as broadly as possible,

alth ough certain materials were available

at times only to staff and not the City

Council, Planning and Zoning Board, or

public.

185. The City was confronted with a

substantial task involving the

identification, consideration, and

resolution of complex techn ical and legal

questions. The City prudently delegated

much of the work to City staff and outside

consultants. The Act generates severe time

pressures, especially on the local

government, which has only 60 days to digest

the ORC and adopt a plan. Once th e City

received the ORC, about half of the 60 days

was spent by the staff and outside

consultants in drafting proposed revisions

and responses.

186. Neither City Council or the Planning

and Zoning Board could realistically

commence public meetings until the members

had reviewed the work of the consultants

and staff. Critical land use decisions

such as those involved in the adoption of a

comprehensive plan are politically

sensitive. The land use decisions in this

case generated considerable controversy in

the community. Members of the City Council

or the Planning and Zoning Board could not

reasonably be expected to commence public

meetings before they were aware of what

revisions and responses were being proposed

by their experts.

187. The greatest short coming in the

public participation process involved the

ongoing proposed changes to the Future Land

Use Map and the inability or unwillingness

of the City to disseminate in a timely

manner updated maps reflecting these

proposed changes. Broader and more t imely

dissemination of the proposed changes would

have facilitated more careful consideration

of the effects of redesignating the uses of

large parcels of land.

188. However, the real target of the

frustrations expressed with the public

participation pro cess is with the resulting

land use decisions, not the process itself.

Even in light of the shortcomings with

respect to the revisions to the Future Land

Use Map, the public participated in the

process to the fullest extent possible

under the circumstances described above.

Austin , supra at *35 - 36. The RO also included the following

Conclusions of Law on "Public Participation":

242. It is the intent of the Legislature

that the "public participate in the

comprehensive planning process to the

fullest exte nt possible." Section

163.3181(1), Florida Statutes. Local

planning agencies and local governments must

"adopt procedures" to provide for "effective

public participation" in the planning

process and to provide real property owners

with notice of all offi cial actions that

will regulate the use of their property.

Id. The procedures must provide for:

broad dissemination of the

proposal and the alternatives,

opportunity for written comments,

public hearings, as provided

herein, provisions for open

discussi on, communications

programs, information services,

and consideration of and response

to public comments.

Section 163.3181(2).

243. The reference in the above - cited

statute to public hearings is to the

requirements of Section 163.3184(15),

Florida Statut es. This statute requires

that a majority of the governing body

approve the transmittal of a proposed plan

and the adoption of a plan. The adoption

of a plan must be by ordinance.

Section 163.3184(15)(a).

244. The statute requires that the

governing b ody hold at least two advertised

public hearings on the proposed plan. The

first hearing must be held at the

transmittal stage. The hearing must take

place on a weekday about seven days after

the day that the first advertisement was

published. The intent ion to hold and

advertise a second hearing must be

announced at the first hearing. The second

hearing must be held at the adoption stage.

The hearing must take place on a weekday

about five days after the day that the

second advertisement was published.

Section 163.3184(15)(b)1. and 2.

245. The advertisements described in the

preceding paragraph must state the date,

time, place, and subject matter of the

meeting and the locations at which the

public may inspect the proposed plan or

plan. The advertise ments must also state

that interested persons may appear at the

meeting and be heard regarding the

transmittal or adoption of the proposed

plan or plan. Id.

246. If the proposed plan or plan changes

the permitted use of land or land use

categories, the advertisements must be no

less than one - quarter size in a standard or

tabloid - size newspaper with a headline in

no smaller than 18 - point type. The

advertisement may not appear in the portion

of the newspaper devoted to classifieds and

legal notices. The newspaper must be of

general paid circulation in the county and

of general interest and readership in the

community. If possible, the newspaper

should be published at least five days a

week. The advertisement must contain a

geographic location map with ma jor street

names indicated. The advertisement must

announce at the heading: "NOTICE OF CHANGE

OF LAND USE." The introductory paragraphs

of the advertisement must be substantially

in the same form as language set forth in

the statute.

247. The City Coun cil and Planning and

Zoning Board complied with the above - cited

law regarding public participation and

public hearings. Although the Planning and

Zoning Board evidently did not formally

adopt procedures for public participation,

the Board conducted its he arings in a

manner consistent with the requirements of

the Act concerning public participation.

Id. at *44 - 45. The Recommendation in the RO was to find the

City's Plan not "in compliance," but not for any reasons

relating to public participation.

52. After receipt of the RO in Austin , DCA determined

that the City's Plan was not "in compliance" and, under Section

163.3184(9)(b), Florida Statutes (1989), forwarded the RO to

the Administration Commission (AC) for entry of a final order.

On September 29, 1989, the AC entered an Amended Final Order.

Id. at *55 - 63. The Amended Final Order included the following

findings:

The commission adopts the hearing officer's

Ultimate Findings Numbers 185 through 232,

except as noted in the following

paragraphs.

4. In this proceeding, the commission is

asked to reach a threshold determination

concerning public participation in the

local government comprehensive planning

process. At the outset, the commission

notes that communication at the draft and

proposed plan stages can be as essential to

the outcome of an effective plan as the

formal adoption procedures. Furthermore,

citizens should be afforded timely access

and education concerning the growth

management decisions entrusted to elected

and appointed officials.

In considering the requirements of section

163.3181, F.S., the commission notes

legislative intent that the public

participate in the comprehensive planning

process to the fullest extent possible.

Section 163.3181(2) specifies minimum

requirements for lo cal planning agencies

and local governmental units to adopt

procedures that "provide for broad

dissemination of the proposals and

alternatives, opportunities for written

comments, public hearings . . . ,

provisions for open discussion,

communication progra ms, information

services, and consideration of and response

to public comments."

The commission also notes section

163.3184(1)(b) of the act, which reads as

follows:

"In compliance" means consistent

with the requirements of ss.

163.3177, 163.3178, and 163.3191,

the state comprehensive plan, the

appropriate regional policy plan,

and rule 9J - 5, F.A.C., where such

rule is not inconsistent with

Chapter 163, part II.

Furthermore, the commission acknowledges

that Chapter 9J - 5.004, F.A.C., reflects

significa nt elements of section 163.3181 of

the act concerning public participation in

the comprehensive planning process. On

balance, the commission concludes that the

act and DCA Rule 9J - 5 include public

participation as an essential supporting

element in prepar ing and adopting a local

government comprehensive plan pursuant to

Chapter 163, Part II, F.S., and are within

the scope of compliance review under

section 163.3184, F.S.

Based on the conclusion of law that

public participation may be raised within a

com pliance review proceeding pursuant to

section 163.3184, F.S., the commission

adopts the Ultimate Findings of the hearing

officer's Recommended Order with respect to

this subject, except as noted below:

(a) The commission does not adopt the

first senten ce of Ultimate Finding Number

185, on page 71 of the Recommended Order.

(b) The commission does not adopt the

first sentence of Ultimate Finding Number

186, on pages 71 - 72 of the Recommended

Order.

(c) The commission does not adopt

Ultimate Finding Number 190 on page 73 of

the Recommended Order.

The commission concludes that the record

indicates that the City of Cocoa made a

good faith effort to comply with the intent

established in section 163.3181, F.S. and

Chapter 9J - 5.004, F.A.C., and adopts t he

hearing officer's findings as they pertain

to the minimum requirements that may be

addressed in this Section 163.3184

compliance review.

Id. at *56 - 57.

53. Based on the AC's findings and conclusions, it is

difficult to understand why the AC chose no t to adopt the

listed findings. 9 It also is difficult to ascertain what

exactly the AC was making part of compliance review when it

concluded that "the act and DCA Rule 9J - 5 include public

participation as an essential supporting element in preparing

and adopting a local government comprehensive plan pursuant to

Chapter 163, Part II, F.S., and are within the scope of

compliance review under section 163.3184, F.S." -- consistency

with the requirement that local government's adopt procedures

for ensuring publi c participation, or consistency with a

requirement that certain procedures be followed .

54. Notwithstanding findings in the RO as to the public

participation that occurred in the process of adoption of the

City's Plan for initial compliance review by DC A, the RO's

Conclusions of Law seemed to limit public participation

compliance review to a determination as to whether the City had

adopted transmittal and adoption procedures in compliance with

Rule 9J - 5.004 and Sections 163.3181 and 163.3184(15), Florida

Statutes (Supp. 1988). The AC's conclusions of law seemed to

be adding the LPA procedures to the scope of this compliance

review. Notwithstanding this apparently limited scope of

compliance review, the AC may have concurred with the RO's

Ultimate Findin g 184 that "[a]ny deficiency in the procedures

is immaterial" 10 and did concur with the RO's Conclusion of Law

247 11 that, "[a]though the Planning and Zoning Board [the LPA]

evidently did not formally adopt procedures for public

participation, the Board cond ucted its hearings in a manner

consistent with the requirements of the Act concerning public

participation." Id. at *45. Perhaps telling, the AC added to

the stipulated remedial amendments needed to bring the City's

Plan into compliance:

52. The city s hall also review, revise, and

adopt its public participation procedures,

guidelines and practices to ensure public

participation to the fullest extent

possible in compliance with Rule 9J - 5,

F.A.C. and Chapter 163, Part II, F.S.

Id. at *62. In addition, the AC granted certain undisclosed

exceptions 12 filed by Austin, et al.:

to the extent reflected in the remedial

actions specified in this order. While the

commission will not second - guess the

detailed application of local adoption

procedures, it does f ind that the minimum

procedural requirements specified in the

act and DCA Rule 9J - 5 may be reviewed and

enforced through the compliance review

process established in section 163.3184,

F.S. (Emphasis added.)

Id. at *58. Although not clear, it appears f rom the foregoing

that it was the intent of the AC to review the local

government's adoption procedures for consistency with the

requirement that they are sufficient to ensure public

participation, and not to review for consistency with a

requirement that certain procedures be followed . Petitioner

has not cited any AC or DCA precedent making it clear that

Austin should be interpreted as reviewing for consistency with

a requirement that certain procedures be followed .

55. In contrast to Rule 9J - 5.004 and Section 163.3181,

Rule 9J - 5.005(8) did require local governments to follow

certain procedures for ensuring public participation in the

preparation and adoption of government's adoption procedures,

until its repeal in 2001. Specifically, former Rule 9J -

5. 005(8) stated in relevant part:

(b) The comprehensive plan or element

shall be prepared in accordance with

Section 163.3174 and Subsection

163.3167(4), Florida Statutes, relating to

local planning agencies. Proposed plans,

elements, portions thereof an d amendments

shall be considered at a public hearing

with due public notice by the local

planning agency prior to making its

recommendation to the governing body

pursuant to Subsection 163.3167(4) and

Section 163.3174, Florida Statutes.

(c) The comprehens ive plan, element or

amendment shall be considered and adopted

in accordance with the procedures relating

to public participation adopted by the

governing body and the local planning

agency pursuant to Section 163.3181,

Florida Statutes, and Rule 9J - 5.004 of this

chapter. The local government shall submit

with its initial transmittal, pursuant to

Subsection 163.3167(2), Florida Statutes,

and subsequent transmittals pursuant to

Section 163.3191, Florida Statutes, a copy

of the procedures for public particip ation

that have been adopted by the local

planning agency and the governing body.

* * *

(e) . . . The comprehensive plan, elements

and amendments shall be adopted by

ordinance and only after the public

hearings required by Paragraph [sic]

163.318 4(15)(b), Florida Statutes, have

been conducted after the notices required

by Paragraphs [sic] 163.3184(15)(b) and

(c), Florida Statutes. Upon adoption the

local government shall transmit to the

Department a copy of the ordinance and the

required notices.

These subsections appear to have been the basis for

consideration of the issue not only in Austin but also in

several other early cases. See , e.g. , Robert J. Starr et al.,

v. Department of Community Affairs et al. , Case Nos. 98 - 0449GM,

98 - 0701GM, 98 - 0702 GM, and 98 - 1634GM, 2000 WL 248379, *49 (DOAH

Feb. 11, 2000; DCA May 16, 2000); Minette Benson et al. v. City

of Miami Beach et al. , Case No. 89 - 6804GM, 1990 WL 749702, *2

(DOAH Sept. 24, 1990; DCA Nov. 12, 1990), rev'd , 591 So. 2d 942

(Fla. 3d DCA 1991); D ept. of Community Affairs, et al. v. City

of Islandia , DOAH Case No. 89 - 1508GM, 1990 WL 749353, *28 (DOAH

March 27, 1990; DCA June 20, 1990).

56. As indicated, former Rule 9J - 5.005(8) was repealed in

2001. See Volume 26, Number 42, Oct. 20, 2000, at 48 38,

Florida Administrative Weekly; Volume 27, Number 8, Feb. 23,

2001, at 975, Florida Administrative Weekly. Subsequent

decisions appear to give effect to the repeal by eliminating

compliance review for consistency with a requirement that

certain procedu res be followed . See Emerald Lakes Residents'

Ass'n, Inc. v. Collier County and Dept. of Community Affairs ,

DOAH Case No. 02 - 3090GM, 2003 WL 329685, *12 (DOAH Feb. 10,

2003; DCA May 9, 2003). See also Alessi, et al. v. Wakulla

County, et al. , DOAH Case N o. 03 - 0052GM, Order entered

February 4, 2003, and Order entered April 7, 2003.

57. Notwithstanding the foregoing, Petitioner maintains

that plan amendments still should be reviewed for consistency

with the requirements of former Rule 9J - 5.008. The basi s for

Petitioner's argument is that the notice of proposed rulemaking

for the rule's repeal stated that "redundant provisions" were

being repealed. Petitioner argues that, if the repealed

language was redundant, consistency with a requirement that

local g overnments follow statutory, rule, and local procedures

for ensuring public participation in the preparation and

adoption of government's adoption procedures must still be a

part of compliance review. But the meaning and significance of

the language in th e notice of proposed rulemaking is not clear;

and it cannot be concluded that consistency with a requirement

that local governments follow statutory, rule, and local

procedures for ensuring public participation in the preparation

and adoption of government 's adoption procedures remains a part

of compliance review, notwithstanding the repeal of former Rule

9J - 5.005(8).

58. Notwithstanding the repeal of former Rule 9J -

5.005(8), and apparent absence of any other statutory and rule

authority, DCA nonetheless suggests that some limited

compliance review of a local government's adoption process is

still appropriate. According to the evidence in this case,

DCA's review is limited to whether the transmittal and adoption

hearings took place as required by Section 163.3184(15).

Assuming such a review is appropriate, Petitioner did not prove

beyond fair debate that the requirements of Section

163.3184(15) were not met.

59. Section 163.3184(15) provides in pertinent part:

(a) . . . For the purposes of transmitti ng

or adopting a comprehensive plan or plan

amendment, the notice requirements in

chapters 125 and 166 are superseded by this

subsection, except as provided in this

part.

(b) The local governing body shall hold at

least two advertised public hearings on t he

proposed comprehensive plan or plan

amendment as follows:

1. The first public hearing shall be held

at the transmittal stage pursuant to

subsection (3) It shall be held on a

weekday at least 7 days after the day that

the first advertisement is publish ed.

2. The second public hearing shall be held

at the adoption stage pursuant to

subsection (7). It shall be held on a

weekday at least 5 days after the day that

the second advertisement is published.

(c) The local government shall provide a

sign - in for m at the transmittal hearing and

at the adoption hearing for persons to

provide their names and mailing addresses.

The sign - in form must advise that any

person providing the requested information

will receive a courtesy informational

statement concerning p ublications of the

state land planning agency's notice of

intent. The local government shall add to

the sign - in form the name and address of

any person who submits written comments

concerning the proposed plan or plan

amendment during the time period betw een

the commencement of the transmittal hearing

and the end of the adoption hearing. It is

the responsibility of the person completing

the form or providing written comments to

accurately, completely, and legibly provide

all information needed in order to receive

the courtesy informational statement.

(d) The agency shall provide a model sign -

in form for providing the list to the

agency which may be used by the local

government to satisfy the requirements of

this subsection.

(e) If the proposed comprehens ive plan or

plan amendment changes the actual list of

permitted, conditional, or prohibited uses

within a future land use category or

changes the actual future land use map

designation of a parcel or parcels of land,

the required advertisements shall be in the

format prescribed by s. 125.66(4)(b)2. for

a county or by s. 166.041(3)(c)2.b. for a

municipality.

Section 166.041(3)(c)2.b. provides:

(c) . . . Ordinances that change the actual

list of permitted, conditional, or

prohibited uses within a zoning category,

or ordinances initiated by the municipality

that change the actual zoning map

designation of a parcel or parcels of land

shall be enacted pursuant to the following

procedure:

* * *

2. In cases in which the proposed

ordinance changes the actual list of

permitted, conditional, or prohibited uses

within a zoning category, or changes the

actual zoning map designation of a parcel

or parcels of land involving 10 contiguous

acres or more, the governing body shall

provide for public notice and he arings as

follows:

* * *

b. The required advertisements

shall be no less than 2 columns

wide by 10 inches long in a

standard size or a tabloid size

newspaper, and the headline in the

advertisement shall be in a type

no smaller than 18 point. The

advertisement shall not be placed

in that portion of the newspaper

where legal notices and classified

advertisements appear. The

advertisement shall be placed in a

newspaper of general paid

circulation in the municipality

and of general interest and

reade rship in the municipality,

not one of limited subject matter,

pursuant to chapter 50. It is the

legislative intent that, whenever

possible, the advertisement appear

in a newspaper that is published

at least 5 days a week unless the

only newspaper in the m unicipality

is published less than 5 days a

week. The advertisement shall be

in substantially the following

form:

NOTICE OF (TYPE OF) CHANGE

The (name of local governmental

unit) proposes to adopt the

following ordinance: (title of

the ordinance) ___.

A public hearing on the ordinance

will be held on (date and time) at

(meeting place) .

Except for amendments which change

the actual list of permitted,

conditional, or prohibited uses

within a zoning category, the

advertisement shall contain a

geographic location map which

clearly indicates the area covered

by the proposed ordinance. The

map shall include major street

names as a means of identification

of the general area.

60. Petitioner contended that the notice requirements in

paragraphs (a), (b), an d (e) of Section 163.3184(15), were not

met because it was not permissible to combine the various plan

amendments into a single enacting ordinance, as done by the

Town in this case, and because the advertisements for the

transmittal and adoption hearings d id not adequately identify

the subject of the amendments. But the evidence was contrary

to Petitioner's positions, and Petitioner has cited no

authority to support her positions.

61. Petitioner also contended that the Town failed to

meet the sign - in fo rm requirements of paragraphs (c) and (d) of

Section 163.3184(15). But, as found, Petitioner failed to

prove this contention.

62. As found, Petitioner submitted written comment on the

proposed amendment and was in attendance at the adoption

hearing. I n addition, her participation established that, even

if there were deficiencies in the advertisements, she suffered

no prejudice as a result.

63. If following required transmittal and adoption

procedures is a compliance criterion, as it was before the

r epeal of former Rule 9J - 5.008 in 2001, prejudice to the

petitioner logically would not be an issue. See , e.g. , Benson

v. City of Miami Beach Department of Community Affairs , 591 So.

2d 942 (Fla. 3d DCA 1991)(no consideration of prejudice in

opinion where published notice of public hearing did not meet

statutory requirement for county - wide notice); Dept. of

Community Affairs, et al. v. City of Islandia , supra (no

consideration of prejudice in a case where petitioners were DCA

and an adjoining local governme nt not required to comment,

recommend, or object in order to be an "affected person" with

standing under Section 163.3184(1)(a)). But see Edmond J. Gong

and Dana L. Gong v. Dept. of Community Affairs and City of

Hialeah , DOAH Case No. 94 - 3506GM, 1994 WL 1 027737, *7 (DOAH

Oct. 11, 1994; DCA Nov. 29, 1994)(actions of City and DCA held

not to be a nullity for failure to give statutory notice, where

there was no showing of prejudice). In cases where a local

government's alleged failure to follow various proce dures for

public participation (including alleged inadequate public

notice) has been considered, for whatever reason, since the

repeal of Rule 9J - 5.008, the party alleging the failure was

required to establish resulting prejudice in order to prevail.

See Emerald Lakes Residents' Ass'n, Inc. v. Collier County and

Dept. of Community Affairs , supra ; Sutterfield et al. v.

Department of Community Affairs et al. , Case No. 02 - 1630GM,

2002 WL 31125197, *19 - 20 (DOAH Sept. 16, 2002; DCA Nov. 14,

2002). See also Cit y of Jacksonville v. Huffman , 764 So. 2d

695 (Fla. 1st DCA 2000)(waiver of procedural error on permit

for construction in historic district); Schumacher v. Town of

Jupiter , 643 So. 2d 8 (Fla. 4th DCA 1994), rev. den. , 654 So.

2d 919 (Fla. 1995)(person chal lenging statutory notice

requirements who read notice, attended hearing, and fully

participated in zoning amendment proceeding was estopped from

asserting a defect in the notice).

Data and Analysis Requirements

64. Data and analysis requirements for the adoption of

comprehensive plan amendments are set out in Rule 9J - 5.005(2).

65. Rule 9J - 5.005(2)(a) states in pertinent part:

All goals, objectives, policies,

standards, findings and

conclusions within the

comprehensive plan and its support

documents, and within plan

amendments and their support

documents, shall be based upon

relevant and appropriate data and

the analyses applicable to each

element. To be based upon data

means to react to it in an

appropriate way and to the extent

necessary indicated b y the data

available on that particular

subject at the time of adoption of

the plan or plan amendment at

issue.

66. The adoption of a reference to the year 2000 version

of the "Loxahatchee River National Wild and Scenic River

Management Plan," updated a reference to the 1985 version.

Since the Loxahatchee Plan was previously incorporated into the

Town's comprehensive plan, reference to the updated plan was an

appropriate reaction indicated by the data available on the

issue at the time of adoption and wa s appropriately found "in

compliance."

67. Petitioner has not demonstrated beyond fair debate

that the amendment to the Conservation Element was submitted

without adequate data and analysis and therefore not "in

compliance," as defined in Section 163.31 84(1)(b).

68. The adoption of the amendments to the Transportation

Map Series were based on the interlocal agreement between the

Town, Palm Beach County, and Martin County regarding the

construction of a road known as the "Western Corridor."

Amendment and adoption of these maps are necessary to reflect

the alignment of the roadway through the Town and to maintain

consistency within the comprehensive plan by reflecting changes

to the Transportation Element based on changes to the

Intergovernmental Coordi nation Element. The modification and

addition of maps in the Transportation Map Series was an

appropriate reaction indicated by the data available on the

issue at the time of adoption and was appropriately found to be

"in compliance."

69. Petitioner has not demonstrated beyond fair debate

that the Amendment regarding the Transportation element was

submitted based on inadequate data and analysis and therefore

not "in compliance," as defined in Section 163.3184(1)(b).

RECOMMENDATION

Based upon the foregoin g Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DCA enter a final order finding the

Town's Amendment 2002 - 02 to be "in compliance."

DONE AND ENTERED this 24th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

__________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of October, 2002.

ENDNOTES

1 / Unless otherwise noted, Sections refer to Sections of the

2002 codifica tion of the Florida Statutes, and Rules refer to

the current codification of the Florida Administrative Code.

2 / In addition to the general category of exhibits "listed by

Respondents and/or necessary for rebuttal," Petitioner listed a

total of 109 num bered exhibits, but six of these were stricken

from the list.

3 / Petitioner's pro se method of organizing her exhibits, as

well as her manner of presenting her case, made it difficult to

follow her presentation, find and use her exhibits, and make an

a ccurate record of objections and rulings.

4 / As reflected in the Conclusions of Law, several of these

exhibits relate to issues ultimately held to be outside the

scope of compliance review; however, they were received in

evidence for purposes of settin g the factual predicate for the

arguments on the scope of compliance review.

5 / Since the evidence was that no public notice was given, the

details of the notice requirements under this statute, which

are defined in Section 163.3164(18), need not be se t out.

6 / Quoted in Conclusion 59, infra .

7 / Quoted in Conclusion 48, infra .

8 / As found, neither the Town's Resolution 58 - 87 nor its home -

rule charter adds anything to the compliance review

requirements for purposes of this proceeding.

9 / Ultimate Finding 190 does not pertain to public

participation, and the AC's previous findings and conclusions

do not explain its action with respect to Ultimate Findings 185

and 186. Based on the AC's preceding findings and conclusions,

it would have been more logical for the AC to have declined to

adopt the first sentences of Ultimate Findings 183 and 184.

10 / As indicated in Endnote 9, supra , the AC may actually have

intended to reject this Ultimate Finding, which would have made

more sense in light of other findings and conclusions.

11 / The AC refers to adopted conclusions of law by the numbers

1 - 66. However, it appears that, prior to preservation in

Westlaw (and on the DOAH website), the numbering of Conclusions

of Law in the RO was changed to confor m with the subsequent

DOAH practice of numbering conclusions of law sequentially,

starting with the number following the number of the last

finding of fact. Since there were 226 findings in the RO, the

Conclusion of Law 247 falls within the range of concl usions of

law adopted by the AC.

12 / These exceptions are not revealed in the published

decision, only the rulings.

COPIES FURNISHED:

Thomas J. Baird, Esquire

Thomas J. Baird, P.A.

11891 U.S. Highway One

Suite 105

North Palm Beach, Florida 33408 - 286 4

Timothy E. Dennis, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399 - 2100

Michael W. Morrell, Esquire

Post Office Box 18649

West Palm Beach, Florida 33416 - 8649

David L. Jordan, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Colleen Castille, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

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.