04-000002GM Antonio Medina, Sanford Bosem, Ben Fried, John Durante, Irwin Beitch, Jack Tellerman, Eric Pfeffer, David Bitton, Edeed Ben-Josef, David Bulva, Joseph Bentel, Philip Voss, Town Of Golden Beach, Scott Schlesinger, And Muriel Scemla vs. City Of Sunny Isles Beach; La Mansion, L.L.C.; And Department Of Community Affairs Status: Closed DOAH Final Order on Monday, August 9, 2004.

Summary: City`s land development regulations found to be in compliance where they were consistent with the terms of the comprehensive plan policy being implemented and with Chapter 9J-5, Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTONIA MEDINA, SANFORD BOSEM, )

BEN FRIED, JOHN DURANTE, IRWIN )

BEITCH, JACK TELLERMAN, ERIC )

PFEFFER, DAVID BITTON, EDEED )

BEN - JOSEF, DAVID BULVA, JOSEPH )

BETEL, PHILIP VOSS, TOWN OF )

GOLDEN BEACH, SCOTT SCHLESINGER,)

and MURIEL SCEMLA, )

)

Petitioners, )

)

vs. ) Case No. 04 - 0002GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS and CITY OF SUNNY )

ISLES BEACH, )

)

Respondents, )

)

and )

)

LA MANSION, LLP, )

)

Intervenor. )

________________________________)

SUMMARY FINAL ORDER

Pursuant to notice, this matter was heard before the

Division o f Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on July 20,

2004. The hearing was conducted by telephone, with counsel

being located in Miami, Fort Lauderdale, Sunny Isles Beach,

and Tallahassee, Florida.

APPEA RANCES

For Petitioners: John K. Shubin, Esquire

Shubin & Bass, P.A.

46 Southwest First Street, Third Floor

Miami, Florida 33130 - 1610

For Respondent: Susan F. DeLegal, Esquire

( City) Holland & Knight, LLP

Post Office Box 14070

Fort Lauderdale, Florida 33302 - 4070

Susan L. Stephens, Esquire

Holland & Knight, LLP

Post Office Drawer 810

Tallahassee, Florida 32302 - 0810

Lynn M. Dannheisser, Esquire

City Attorney

17070 Collins Avenue, Suite 250

Sunny Isles B each, Florida 33160 - 3635

For Intervenor: Adam M. Schacter, Esquire

Stears, Weaver, Miller, Weissler,

Alhadeff & Sotterson, P.A.

150 West Flagler Street, Suite 2200

Miami, Florida 33130 - 1536

For Respondent: Shaw P. Stiller, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The issue in this case is whether the land development

regulations (LDRs) adopted by Respondent, City of Sunny Isles

Beach (City), by Ordinance No. 2002 - 165 on December 10, 2002,

as amended, are in compliance.

PRELIMINARY STATEMENT

This matter bega n on December 10, 2002, when the City

adopted Ordinance No. 2002 - 165, which established new land

development regulations (LDRs), including a Zoning Map, for

the City.

On June 19, 2003, or within 12 months after the adoption

of the LDRs, Petitioners filed with the City their challenge

of the LDRs under Section 163.3213(3), Florida Statutes

(2003). 1 In their filing, Petitioners alleged that the LDRs

were not in compliance. On July 23, 2003, the City filed a

response to Petitioners' filing. On August 25, 2003,

Petitioners filed a Petition with Respondent, Department of

Community Affairs (Department), again contending that the LDRs

were not in compliance. A supplemental filing was made by

Petitioners with the Department on September 29, 2003. 2

On October 2 , 2003, the Department conducted an informal

hearing with the parties pursuant to Section 163.3213(4),

Florida Statutes, to investigate Petitioners' allegations. On

November 26, 2003, the Department issued its Determination of

Consistency of a Land Dev elopment Regulation (Determination).

That Determination found that the City's LDRs, as later

amended by Ordinance Nos. 2003 - 171 and 2003 - 173, "[were]

consistent with the City's Comprehensive Plan."

On December 16, 2003, Petitioners filed their Request f or

Hearing with the Department seeking a formal hearing to

challenge the LDRs. The Request for Hearing was forwarded to

the Division of Administrative Hearings on January 2, 2004,

with a request that an administrative law judge conduct a

hearing. On J anuary 16, 2004, Motions to Dismiss the

Request for Hearing filed by the City and Intervenor, La

Mansion, LLP, were granted on the grounds that the two - page

Request for Hearing failed to comport with Florida

Administrative Code Rule 28 - 106.201(2) or contai n allegations

that Petitioners were substantially affected persons, as

required by Section 163.3213(2)(a), Florida Statutes. Such

dismissal, however, was without prejudice to Petitioners'

refiling an amended petition. On January 30, 2004,

Petitioners fil ed their Amended Request for Hearing.

By Notice of Hearing dated February 10, 2004, a final

hearing was scheduled on March 17, 2004, in Sunny Isles Beach,

Florida. Based on a scheduling conflict, Petitioners' request

for a continuance was granted, and th e final hearing was

rescheduled to July 20 and 21, 2004, at the same location.

On July 1, 2004, the parties filed a Joint Request for

Telephonic Oral Argument in Lieu of Final Hearing, in which

they advised that there were no genuine issues as to any

mat erial facts. (In that filing, the parties agreed that the

Findings of Fact contained in the Department's Determination

are not in dispute.) On the same date, the City filed a

Motion for Summary Final Order (Motion) under Section

120.57(1)(h), Florida Sta tutes. A Memorandum of Law and

Response to Motion for Summary Final Order was filed by

Petitioners on July 16, 2004. (No documents were attached to

Petitioners' Response.) For purposes of disposing of this

matter in an efficient manner, and with the agr eement of the

parties, that filing has been treated as a Cross - Motion for

Summary Final Order (Cross - Motion). On July 19, 2004,

Intervenor filed a Notice of Joinder, in which it joined in

the City's Motion. Finally, on July 21, 2004, the Department

filed a Notice of Joinder in the City's Motion.

On July 20, 2004, a telephonic hearing on the City's

Motion and Petitioners' Cross - Motion was conducted. All

parties participated in the hearing by telephone.

Besides the pleadings filed in this matter, the rec ord

consists of Exhibits A - H, which are attached to the City's

Motion. Those Exhibits include a copy of the Department's

Determination of Consistency of a Land Development Regulation

(Exhibit A); City Ordinance Nos. 2000 - 105 and 2002 - 147

(Exhibit B); City Ordinance No. 2002 - 165 (Exhibit C); City

Ordinance Nos. 2003 - 167, 2003 - 171, 2003 - 173, and 2003 - 178

(Exhibit D); the City's Comprehensive Plan (Exhibit E); the

City's Intergovernmental Coordination Element (Exhibit F); and

a copy of the decision in Town of Golden Beach, et al. v. City

of Sunny Isles Beach et al. , Case No. 03 - 473AP (Fla. 11th

Cir.Ct., Appellate Division, June 15, 2004) (Exhibit G).

(That case involved an unsuccessful challenge by Petitioners

to a City Resolution granting Intervenor's applic ation to

construct a 42 - story condominium. It is fair to conclude that

the underlying issue driving this dispute is Intervenor's

proposed construction of a high - rise condominium within the

City.)

A Transcript of the hearing was filed on August 2, 2004.

The parties waived their right to file proposed findings of

fact and conclusions of law.

FINDINGS OF FACT

Based upon the record presented by the parties, the

following undisputed findings of fact are determined:

1. The City sits between the Intracoas tal Waterway and

the Atlantic Ocean in northern Dade County just south of the

Town of Golden Beach (Town) and just north of the City of Bal

Harbour. It was incorporated in 1997. As required by Section

163.3161, Florida Statutes, on October 5, 2000, the C ity

adopted its first Comprehensive Plan. See Exhibit E. The

Plan was amended by Ordinance No. 2002 - 147 on January 17,

2002. See Exhibit B.

2. The Plan's Future Land Use Map contains a land use

category known as Mixed Use - Resort/High Density (MU - R), w hich

is "designed to encourage development and redevelopment within

the area east of Collins Avenue for resort style developments

catering to tourists and seasonal residents (hotel, hotel/

apartments, vacation resorts and resort style apartments) as

well a s high quality residential apartments." The category

also allows associated retail uses such as restaurants and

conference facilities that are internal and accessory to

hotel/resort development.

3. Pertinent to this dispute is Policy 15B of the Future

Land Use Element (FLUE), which establishes density and

intensity standards for the MU - R land use category. More

specifically, the policy provides the following standards:

This category allows an as - of - right density

of a maximum one hundred (100) hotel -

apa rtment units per acre and fifty (50)

dwelling units per acre for apartments and

a floor area ratio (FAR) intensity of 2.5.

The allowable number of hotel rooms is

controlled by floor area ratio. Additional

residential density and FAR intensity may

be perm itted for developments that comply

with bonus program requirements .

Residential densities with bonuses may not

exceed eighty (80) units per acre for

solely apartments and one hundred twenty

five (125) units per acre for hotel -

apartments, exclusive of lock out units.

(Emphasis added)

4. Under the foregoing policy, a maximum density of 100

units per acre is allowed for hotel - apartment units, a maximum

density of 50 units per acre is allowed for apartments, and a

floor area ratio (FAR) intensity of 2.5 has b een established.

However, the underscored portion of the policy authorizes a

bonus density and intensity program which allows a developer

to exceed the prescribed density and intensity standards for

developments "that comply with bonus program requirement s."

5. If the bonus density program requirements are

satisfied, the policy establishes a cap for the density bonus

at 125 hotel - apartment units per acre and 80 residential units

per acre. While the policy does not establish a similar cap

for the intens ity bonus, it essentially defers the amount of

the intensity cap and the details of the bonus program to the

LDRs, which are to be adopted at a later time.

6. Objective 8 of the Plan provides that the City "shall

adopt, maintain, update and enhance devel opment regulations

and procedures to ensure that future land use and development

in the City of Sunny Isles Beach is consistent with the

Comprehensive Plan." Objective 15 of the Plan provides that

the "land use densities, intensities and approaches [conta ined

in Policy 15B] shall be incorporated in the Land Development

Regulations." Finally, Section 163.3202(1), Florida Statutes,

requires that local governments, within one year after

submission of their comprehensive plans, "adopt or amend and

enforce lan d development regulations that are consistent with

and implement their comprehensive plan."

7. On December 10, 2002, the City approved Ordinance No.

2002 - 165, which adopted a comprehensive set of LDRs to

implement the Plan. See Exhibit C. In 2003, the L DRs were

further amended in minor respects by Ordinance Nos. 2003 - 167,

2003 - 171, 2003 - 173, and 2003 - 178. See Exhibit D. In sum, the

LDRs consist of more than one hundred pages of regulations,

and except for one of these, Section 703.8.4(i)3, none of the

other LDRs directly relates to this dispute.

8. Section 703.8.4(i)3 implements Policy 15B by

outlining the criteria and requirements necessary to qualify

for additional intensity or FAR through the bonus program. It

also establishes a cap on FAR intens ity. If the bonus program

requirements are satisfied, 3 the regulation allows a maximum

intensity bonus of 1.5 FAR, or a potential total FAR of 4.0,

which exceeds the 2.5 FAR contained in Policy 15B. (Intensity

bonuses to increase the FAR can also be obta ined through the

transfer of development rights under Section 515 of the LDRs.

However, those bonuses are not in issue here.)

9. Petitioners include a group of twelve City residents;

the Town, which lies adjacent to, and just north of, the City;

and two Town residents. There is no dispute that Petitioners

will be substantially affected by the LDRs and thus they have

standing to bring this challenge.

10. In their Cross - Motion, which essentially tracks the

allegations in their Amended Request for Hearin g, Petitioners

assert that they, and not the City, are entitled to a summary

final order in their favor for three reasons. First, they

argue that it is beyond fair debate that all of the LDRs,

including Section 703.8.4(i)3, are inconsistent with Policies

4A and 4C of the Intergovernmental Coordination Element of the

Plan because the City failed to solicit comments from the Town

prior to the adoption of the LDRs. Second, they argue that it

is beyond fair debate that the City violated Florida

Administrative Code Rule 9J - 5.005(2)(g) when it adopted

Section 703.8.4(i)3. Finally, they contend that it is beyond

fair debate that in order to achieve consistency with the

Plan, the LDR must not establish a FAR that is beyond the

intensity standard (2.5) established in the Plan.

11. Policies 4A and 4C of the Intergovernmental

Coordination Element provide as follows:

4A. The City will notify and solicit

comments from adjacent jurisdictions and

the School Board of any requests for land

use amendments, variances, cond itional uses

or site plan approvals which impact

property within 500 feet of a public school

or within 500 feet of the boundaries of an

adjacent jurisdiction.

4C. The City will notify and solicit

comments from adjacent jurisdictions and

the School Board of its existing standards

or proposed regulations being considered

for problematic or incompatible land uses.

12. Nothing in the two policies requires that the City

solicit comments from adjacent jurisdictions when adopting the

LDRs being challenged here . Rather, these policies

specifically address notice and comments as to "land use"

changes, not the adoption of LDRs, or to "regulations being

considered for problematic or incompatible land uses." Even

assuming arguendo that the two policies require som e type of

prior notice, Petitioners do not dispute the fact (as set

forth in the Department's Determination) that prior to the

adoption of the LDRs, "the City notified the Town both in

writing and orally". (Determination, Finding of Fact 6).

13. Florid a Administrative Code Rule 9J - 5.005(2)

contains general data and analyses requirements for

comprehensive plans. Paragraph (2)(g), which Petitioners

assert was violated by the City when it adopted Section

703.8.4(i)3, provides as follows:

(g) A local gove rnment may include, as

part of its adopted plan, documents adopted

by reference but not incorporated verbatim

into the plan. The adoption by reference

must identify the title and author of the

document and indicate clearly what

provisions and edition of t he document is

being adopted. The adoption by reference

may not include future amendments to the

document because this would violate the

statutory procedure for plan amendments and

frustrate public participation on those

amendments. A local government ma y include

a provision in its plan stating that all

documents adopted by reference are as they

existed on a date certain. Documents

adopted by reference that are revised

subsequent to plan adoption will need to

have their reference updated within the

plan through the amendment process. Unless

documents adopted by reference comply with

paragraph 9J - 5.005(2)(g), F.A.C., or are in

the F.S., the F.A.C., or the Code of

Federal Regulations, copies or summaries of

the documents shall be submitted as support

docum ents for the adopted portions of the

plan amendment.

14. This rule sets forth the manner in which local

governments may adopt and incorporate by reference documents

into their comprehensive plans. If they choose to do so, they

must identify the title an d author of the document being

incorporated by reference, the edition of the document, and

the specific portion of the document relied upon. Whenever an

amendment or change to the incorporated document occurs at a

future time, the local government must re adopt those changes

in order for them to be valid and effective. On its face, the

rule applies exclusively to the use of incorporated documents

in comprehensive plans, or plan amendments, and has no

application to LDRs.

15. In the case of Town of Gold en Beach et al. v. City

of Sunny Isles Beach et al. , No. 03 - 472AP (Fla. 11th Cir.Ct.,

Appellate Division, June 15, 2004), a copy of which has been

submitted as Exhibit G, Petitioners unsuccessfully sought by

petitions for writ of certiorari to quash a City Resolution

which granted Intervenor's application to construct a

condominium at 19505 Collins Avenue, Sunny Isles Beach. The

application sought approval of a site plan for the condominium

and approval of the use of the property as a receiver site for

the transfer of 38,847 square feet of transfer development

rights in accordance with the City's LDRs.

16. In that proceeding, Petitioners contended that they

were denied due process because the City failed to provide

proper notice to neighboring property o wners under Section

515.7 of the LDRs; and that the City violated the essential

requirements of the law by improperly transferring development

rights and additional floor area ratio through bonuses to the

developer, in excess of the 2.5 FAR expressly permi tted by the

City's Plan and LDRs. The court ruled in favor of the City on

both issues. The parties agree, however, that a motion for

rehearing of that decision has been filed by Petitioners, and

the decision is not yet final. Further, the decision does not

clearly indicate whether the same consistency arguments raised

here were adjudicated in that matter. The notice issue is not

the same.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3213, Florida

Statutes.

18. Section 120.57(1)(h), Florida Statutes, provides in

part that

any party to a proceeding in which an

administrative law judge of the Division of

Administrative H earings has final order

authority may move for summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to inter rogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order.

See also Fla. Admin. Code R. 28 - 106.204(4) . Because the

undersigned has final order authority in this proceeding under

Section 163.3213(5)(b), Florida Statutes, summary disposition

of the dispute is appropriate.

19. Where the Department has found an LDR to be

consistent with the local comprehe nsive plan, the parties

shall be "the petitioning, substantially affected person, any

intervenor, the state land planning agency, and the local

government." § 163.3213(5)(a), Fla. Stat. Here the

parties do not dispute

that Petitioners are subst antially affected persons and have

standing to challenge the LDRs.

20. "The adoption of a land development regulation by a

local government is legislative in nature and shall not be

found to be inconsistent with the local plan if it is fairly

debatable that it is consistent with the plan." §

163.3213(5)(a), Fla. Stat. This means that "if reasonable

persons could differ as to its propriety," an LDR must be

upheld. Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997). See also Martin County v. Sec tion 28 Partnership,

Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA 2000)(where there is

"evidence in support of both sides of a comprehensive

amendment, it is difficult to determine that the County's

decision is anything but 'fairly debatable.'").

21. Florida Administrative Code Rule 9J - 5.023 also

prescribes certain criteria for determining consistency of

LDRs with the comprehensive plan. Relevant here are the

criteria found in paragraphs (2) and (3) of the rule:

(2) Whether the land development

regulations are compatible with the

comprehensive plan, further the

comprehensive plan, and implement the

comprehensive plan. The term "compatible"

means that the land development regulations

are not in conflict with the comprehensive

plan. The term "further" means that the

land development regulations take action in

the direction of realizing goals or

policies of the comprehensive plan.

(3) Whether the land development

regulations include provisions that

implement objectives and policies of the

comprehensive pla n that require

implementing regulations in order to be

realized, including provisions implementing

the requirement that public facilities and

services needed to support development

shall be available concurrent with the

impacts of such development.

22. P etitioners' first contention that the City failed

to solicit comments from the Town prior to the adoption of the

LDRs is a procedural argument and does not affect whether the

LDRs are consistent with the Plan. That is, procedural

requirements are not comp liance criteria, and absent a showing

of prejudice, a plan amendment (or LDR) will not be set aside

on the basis of a procedural error. See , e.g. , Brevard County

v. Department of Community Affairs et al. , Case Nos. 00 - 1956GM

and 02 - 0391GM, 2002 WL 3184645 5 at *16 (DOAH Dec. 16, 2002,

DCA Feb. 26, 2003). In any event, the notice requirements in

Policies 4A and 4C do not apply to the challenged LDRs, and

Petitioners have conceded that the City gave notice to the

Town "by oral and written notice" prior to th eir adoption. On

this issue, then, the City is entitled to a favorable ruling.

23. Petitioners next contend that it is beyond fair

debate that the City violated Florida Administrative Code Rule

9J - 5.005(2)(g) when it adopted Section 703.8.4(i)3. As

pr eviously found in Finding of Fact 14, the cited rule applies

to documents incorporated by reference into comprehensive

plans, and not LDRs, and has no application to this

controversy. (Assuming arguendo that the rule did apply, and

that it had been violat ed, it would be necessary to find

Policy 15B not in compliance, rather than the LDR. However, a

plan compliance issue cannot be raised in an LDR challenge.)

Therefore, the contention is without merit.

24. Petitioners also argue that it is beyond fair de bate

that Section 703.8.4(i)3 is inconsistent with Policy 15B since

it sets an intensity cap (4.0) beyond the 2.5 intensity

standard established in the policy.

25. As previously found, Policy 15B establishes a FAR

intensity standard of 2.5 for the MU - R land use category, but

also provides that "[a]dditional . . . F.A.R. intensity may be

permitted for developments that comply with bonus program

requirements." In other words, the policy itself allows for

developments in the MU - R category to qualify for ad ditional

FAR through a bonus program. Section 703.8.4(i)3 implements

this provision by outlining the criteria and requirements

necessary to qualify for additional intensity through the

bonus program. It also establishes a cap on the total FAR

intensity a llowed through the bonus program. Obviously, it

would have been more preferable for the intensity cap for MU - R

development to be established in the policy itself (and the

Department says so in its Determination). However, the entire

Plan, including Polic y 15B, has been found to be in

compliance. It is at least fairly debatable that Section

703.8.4(i)3 is consistent with, and follows the mandate of,

Policy 15B by establishing "additional . . . F.A.R.

intensity" as well as the details for complying with

the "bonus program requirements." Indeed, the LDR does

exactly what Objectives 8 and 15 and Policy 15B call for.

26. Because Section 703.8.4(i)3 is compatible with the

Plan, that is, it does not conflict with the Plan, it takes

action in the direction of realizing the goals and policies of

the Plan, and it implements a Plan policy that requires

implementing regulations in order to be realized, it satisfies

the criteria for determining consistency of an LDR under

Florida Administrative Code Rule 9J - 5.023 . This being so, on

this issue, the City is entitled to final disposition in its

favor. 4

27. Finally, the City contends that under the doctrine

of estoppel by judgment, Petitioners should be prevented from

relitigating issues previously decided between them. See ,

e.g. , Gordon v. Gordon , 59 So. 2d 40, 44 (Fla. 1952)("the

principle of estoppel by judgment is applicable where the two

causes of action are different, in which case the judgment in

the first suit only estops the parties from litigating in the

second suit issues - that is to say points and questions -

common to both causes of action and which were actually

adjudicated in the prior litigation"). Specifically, the City

argues that Petitioners have already litigated and had decided

(in the City's favor) the issue of whether the Plan authorizes

an increase in intensity over 2.5 FAR. Town of Golden Beach ,

supra . While this may be true, that decision is not final,

and there is no clear indication in the decision that the

identical consistency issue s argued here were specifically

raised before that court. Therefore, invocation of that

doctrine is not appropriate.

28. In summary, there is no genuine issue as to any

material fact, and the City is entitled as a matter of law to

the entry of a final order in its favor.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the City's Motion for Summary Final Order is

granted, and the challenged land development regulations

adopted by Ordinance No. 2002 - 165, as a mended, are determined

to be in compliance.

DONE AND ORDERED this 9th day of August, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSo to Building

1230 Apalachee Parkway

Tallahassee, Florida 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 9th day of August, 2004.

ENDNOTES

1/ Unless otherwise noted, all references are to Florida

Statutes (2003).

2/ Petitioners' filings with the City and Department, and the

City's response, are not of record. However, in the

Department's Determin ation of Consistency of a Land Development

Regulation issued on November 26, 2003, the grounds for finding

the LDRs not in compliance are restated, and they appear to be

the same allegations raised here.

3/ The somewhat lengthy regulation provides that b onuses may

be secured by a developer for beach access, access easements,

beach access trust fund contributions, Collins Avenue public

streetscape enhancements, Sunny Isles public parking, and

public oceanfront park and open space enhancements.

4/ In su pport of their consistency argument, Petitioners have

cited one line of cases which generally stands for the

proposition that Florida Administrative Code Rule 9J -

5.005(2)(g) should be strictly interpreted since the language

in the rule is clear and unambig uous. While this is true, the

rule does not apply here. The second line of cases cited by

Petitioners generally holds that state agencies may adopt by

reference regulations that are in effect at the time of

adoption, but may not adopt by reference change s to those

regulations that may occur at a future time. As previously

noted, the underlying rule which codifies this principle does

not apply, but even if it did, the City's adoption of LDRs does

not violate this principle.

COPIES FURNISHED:

John K. S hubin, Esquire

Shubin & Bass, P.A.

46 Southwest First Street, Third Floor

Miami, Florida 33130 - 1610

Susan F. DeLegal, Esquire

Holland & Knight, LLP

Post Office Box 14070

Fort Lauderdale, Florida 33302 - 4070

Susan L. Stephens, Esquire

Holland & Knight, LLP

Post Office Drawer 810

Tallahassee, Florida 32302 - 0810

Lynn M. Dannheisser, Esquire

City Attorney

17070 Collins Avenue, Suite 250

Sunny Isles Beach, Florida 33160 - 3635

Adam M. Schacter, Esquire

Stears, Weaver, Miller, Weissler,

Alhadeff & Sotter son, P.A.

150 West Flagler Street, Suite 2200

Miami, Florida 33130 - 1536

Shaw P. Stiller, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely af fected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal wi th the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. Th e notice of

appeal must be filed within 30 days of rendition of the order

to be reviewed.