08-001212GM Save Boca Raton Green Space, Llc And Robert Dukate vs. City Of Boca Raton And Department Of Community Affairs Status: Closed Recommended Order on Monday, August 4, 2008.

Summary: A change in the City`s Future Land Use Map and new text amendment are found to be in compliance; Multi-Modal Transportation District and the City`s Evaluation and Appraisal Report are inapplicable in a compliance review.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAVE BOCA RATON GREEN SPACE )

LLC, and ROBERT DUKATE, )

)

Petitioners, )

)

vs. ) Case No. 08-1212GM

)

CITY OF BOCA RATON and )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondents, )

)

and )

)

MCZ/CENTRUM FLORIDA V OWNER, )

LLC, )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on May 22 and 23,

2008, in Boca Raton, Florida.

APPEARANCES

For Petitioners: Marcy I. Lahart, Esquire

Marcy I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405-1443

For Respondent: Samuel Dean Bunton, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent: Daniel L. Abbott, Esquire

(City) Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301-1949

Diane Grub Freiser, Esquire

City Attorney

201 West Palmetto Park Road

Boca Raton, Florida 33432-3730

For Intervenor: Maureen McCarthy Daughton, Esquire

Broad & Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32301-1804

Patricia M. Baloyra, Esquire

Broad & Cassel

One Biscayne Tower

Two South Biscayne Boulevard

21st Floor

Miami, Florida 33131-1806

STATEMENT OF THE ISSUE

The issue is whether the City of Boca Raton's (City's)

amendments to the Future Land Use Map (FLUM) and the

Transportation Element of its Comprehensive Plan (Plan) adopted

by Ordinance Nos. 4987 and 4991 on December 11, 2007, are in

compliance.

PRELIMINARY STATEMENT

This matter began on December 11, 2007, when the City

adopted two plan amendments (Ordinance Nos. 4987 and 4991) which

(a) changed the land use designation on approximately 29.58

acres from Recreation and Open Space (PR) to Residential Medium

(RM) and (b) amended the Transportation Element of the Plan by

amending one existing policy and creating a new goal, objective,

and four policies. The effect of the latter amendment was to

establish a new level of service for Northwest Second Avenue

from Yamato Road to Jeffrey Street within the City. (In

addition, two other Ordinances were adopted at the same time;

however, they are not at issue in this case.) The land which is

the subject of the FLUM change is owned by Intervenor,

MCZ/Centrum Florida V Owner, LLC (MCZ), and makes up a part of

the Ocean Breeze Golf and Country Club (Club) in Boca Raton,

Florida.

On February 4, 2008, Respondent, Department of Community

Affairs (Department), published a Notice of Intent to Find City

of Boca Raton Comprehensive Plan Amendment in Compliance (Notice

of Intent). On February 25, 2008, Petitioners, Save Boca Raton

Green Space, LLC (Save Boca), an association of property owners,

some of whom own property and live at the Club, and Robert

Dukate, who also owns property and resides at the Club, filed

their Petition for Formal Administrative Hearing (Petition)

alleging that the two amendments were not "consistent with the

requirements of Sections 163.3177, F.S., and 163.3180, F.S. the

state comprehensive plan" in several respects. At that time,

Petitioners were not represented by counsel. (Counsel for

Petitioners filed her Notice of Appearance on May 15, 2008.)

The matter was referred by the Department to the Division of

Administrative Hearings on March 11, 2008. On the same date,

Intervenor filed a Petition to Intervene into Comprehensive Plan

Challenge Proceeding. Subject to the filing of a timely

objection, intervention was authorized by Order dated March 12,

2008.

By Order dated March 27, 2008, a final hearing was

scheduled on August 19 and 20, 2008, in Boca Raton, Florida. On

April 24, 2008, Intervenor filed a Notice of Demand for

Expedited Hearing under Section 163.3189(3)(b), Florida

Statutes. 1 The following day, Intervenor filed a Motion for

Expedited Discovery. Notices of Opposition to Expedited Hearing

and Discovery were filed by Robert Dukate on May 1, 2008. Over

Mr. Dukate's objection, an Amended Notice of Hearing was issued

rescheduling the final hearing to May 15 and 16, 2008, at the

same location. Also, by Order dated May 7, 2008, the Motion for

Expedited Discovery was denied. On May 2, 2008, the Department

filed an Unopposed Motion to Reschedule the Hearing Date, and

the matter was continued to May 22 and 23, 2008, at the same

location. On May 19, 2008, the case was transferred from

Administrative Law Judge J. Lawrence Johnston to the

undersigned.

Prior to the hearing, numerous procedural and discovery

disputes arose. Between May 12 and 15, 2008, four Motions to

Quash Subpoenas Duces Tecum and a Supplement thereto were filed

by the City. Only one Motion to Quash ultimately required

resolution, and that requested relief (to quash the subpoena

issued to Steve Utrecht, the sole member of the City's Planning

and Zoning Board who voted against the recommended approval of

the plan amendments) was granted at the outset of the hearing. 2

On May 15, 2008, Petitioners filed a Motion for Protective

Order, which was resolved by the parties prior to hearing. On

May 19, 2008, Intervenor filed a Motion in Limine to Prohibit

Testimony and Evidence Regarding Alleged "Environmental" or

"Golf Course Safety" Issues. After Petitioners acknowledged

that environmental matters were no longer in issue, a ruling was

reserved on the golf course safety issue until testimony on the

subject was presented. That issue was later determined not to

be a relevant consideration in a compliance proceeding and

should more appropriately be addressed during the site plan

phase of the process. On May 20, 2008, Intervenor filed a

Motion in Limine to Bar Testimony and Evidence Regarding the

City's MMTD (Multi-Modal Transportation District). 3 Because the

City and Department had not considered the MMTD during the

adoption and review process, limited evidence on this issue was

allowed for the purpose of determining whether the MMTD was a

relevant consideration for the City when it adopted the plan

amendments and by the Department when it performed its

compliance review. In a later portion of this Recommended

Order, the undersigned has determined that it is not a relevant

consideration. On May 20, 2008, Petitioners filed a Motion to

Place Case in Abeyance on the ground there was a substantial

likelihood that the issues in this case would become moot as a

result of a pending case in Circuit Court. That Motion was

opposed by all other parties and was denied at the hearing. On

May 21, 2008, Intervenor filed a Motion to Strike "Expert"

Report and Proposed Testimony of Gary Nash. The Motion was

rendered moot after Petitioners announced at hearing that

Mr. Nash would not testify. On May 21, 2008, Intervenor filed a

Motion in Limine to Exclude the Introduction of the Archive

Items from the City of Boca Raton by the Petitioners. The

requested relief was granted during the course of the hearing on

the ground the documents sought to be introduced, which were

prepared between 1973 and 1980, were too remote and dated to be

relevant to the challenged plan amendments. On May 21, 2008,

Petitioners filed a Request for Leave to Amend, together with an

Amended Petition for Administrative Hearing, which was opposed

by all other parties. Because the Request for Leave to Amend

the pleadings was not filed until the afternoon before the

hearing, and if granted would cause prejudice and/or delay to

the other parties, the Request for Leave to Amend was denied.

Intervenor filed Requests for Official Recognition on May 7, 13,

and 14, 2008, respectively. The first Request was granted by

Order dated May 20, 2008; the other two were granted by oral

ruling at the hearing. By those rulings, official recognition

has been taken of City Ordinance Nos. 4487, 4488, 4489, and 4491

adopted by the City on December 11, 2007; the City's

Comprehensive Plan (Plan) dated February 25, 2005; and the

City's 2005 Evaluation and Appraisal Report (EAR). Finally,

because a pre-hearing stipulation was not filed, various

disputes by the parties over the timely disclosure of witnesses,

exhibits, and expert opinions were resolved as they arose during

the course of the hearing.

At the final hearing, Petitioner Robert Dukate testified on

his own behalf and both Petitioners presented the testimony of

Larry Hymowitz, a Transportation Planner with the Florida

Department of Transportation (DOT); Douglas Hess, City Traffic

Engineer; Robert Wyman, a traffic consultant and accepted as an

expert; Jennifer Simon Hofmeister, a Principal Planner for the

City and accepted as an expert; Joy Puerta, a Transportation

Analyst for the City; and Deborah Golden-Gestner, a certified

grant professional and accepted as an expert. Also, they

offered Petitioners' Exhibits 2, 5, 7, 10, and 12, 13, 14a, 14b,

and 15, which were received in evidence. 4 The Department

presented the testimony of Robert Dennis, a Department Regional

Planning Administrator and accepted as an expert. Also, it

offered Department's Exhibits 10, 17, and 18, which were

received in evidence. Intervenor presented the testimony of

Dennis Taback, a partner in the joint venture which owns the

Club; Karl B. Peterson, a professional engineer and accepted as

an expert; and Timothy R. Stillings, a planner and accepted as

an expert. Also, it offered Intervenor's Exhibits 1-9, 11-15,

18, and 20-29, which were received in evidence. Exhibit 29 is

the deposition of Lillian Dukate, the wife of Robert Dukate, who

signed the Petition on behalf of Save Boca. The City, which is

aligned with the Department and Intervenor, presented no

evidence except through examination of the other parties'

witnesses.

The Transcript of the hearing (four volumes) was filed on

June 24, 2008. (A second copy of the Transcript was filed on

July 10, 2008.) By agreement of the parties, the time for

filing proposed findings of fact and conclusions of law was

extended to July 14, 2008, or twenty days after the filing of

the Transcript. A Joint Proposed Recommended Order was timely

filed by the Department, Intervenor, and City and has been

considered in the preparation of this Recommended Order. Also,

on July 14, 2008, Intervenor filed Motions for Sanctions, Fees,

and Costs under Section 163.3184(12), Florida Statutes, directed

to each Petitioner. On July 22, 2008, Petitioners filed a

Response to Intervenor's Motions for Sanctions and Fees [and

Costs]. As noted in the Conclusions of Law, these Motions must

be dealt with by separate final order. Finally, on July 17,

2008, Petitioners filed a Motion for Enlargement of Time to File

Proposed Recommended Order and asked for an additional twenty-

one days in which make their filing. The Motion was opposed by

all other parties and was denied by Order dated July 18, 2008. 5

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The Parties

1. The City is a municipality in eastern Palm Beach County

located approximately half way between West Palm Beach and Fort

Lauderdale. It adopted the Ordinances which approve the land

use amendments being challenged.

2. The Department is the state land planning agency

charged with the responsibility for reviewing plan amendments of

local governments, such as the City.

3. MCZ is a joint venture real estate company (and an

Illinois limited liability company) that acquired ownership of

the Club in December 2004. MCZ applied to the City for the plan

amendments being challenged and plans to redevelop the property

which is the subject of the land use change. Through its agent

and consultants, MCZ timely submitted comments to the City

during the adoption of the plan amendments.

4. Robert Dukate owns and resides on property facing one

of the Club's golf courses, on which are the 29.58 acres that

MCZ wishes to develop. He acknowledged that he drafted the

Petition (without the assistance of counsel) which was filed in

this case. Mr. Dukate timely submitted comments to the City

during the adoption of the amendment. The parties agree that he

is an affected person. See § 163.3184(1)(a), Fla. Stat.

5. Save Boca is a Florida-for-profit limited liability

corporation formed on June 14, 2007, or approximately two months

after MCZ filed its application for approval of the plan

amendments. According to Petitioners' Exhibit 5, it has around

eighty members, although Mr. Dukate stated at hearing that it

has "[a]pproximately 70," of which around thirty-five own

property at the Club, and twenty-eight live directly adjacent to

the proposed development. The corporation's Operating Agreement

approved on June 24, 2007, indicates that Save Boca is a "member

managed organization." Petitioners' Exhibit 12. However, it

has only one manager, Lillian Dukate (Mr. Dukate's wife), who

also serves as its Treasurer. Even though Ms. Dukate is the

sole manager of the corporation and signed the Petition, she had

no role in the drafting of the document. She added that she

only reviewed "a little" of the Petition before it was filed in

February 2008 and "just kind of skimmed through it just to see

what it was." There is one other officer, Ann Pinkocze, who

serves as Secretary but has no involvement with the corporation

except for signing checks.

6. The Petition alleges that the organization "submitted

oral and/or written comments and objections to the amendment

during the adoption process." This was confirmed at hearing by

Mr. Dukate who indicated that the organization hired an attorney

(Jane West, Esquire) to submit oral or written comments to the

City Commission during the adoption process.

7. There is some confusion regarding the nature and

purpose of the organization. Neither the Articles of

Incorporation nor the Operating Agreement (the only two

documents pertaining to the operation of the corporation)

provides that information. At hearing, Mr. Dukate, who was

responsible for its formation, stated that the corporation was

formed "for the purposes of saving green space within the City

of Boca Raton at the request of many residents in this

particular community." He added that it is not necessarily

limited to activities within the City and denied that it was

formed specifically to oppose these plan amendments or "reap the

benefits of any negotiations [it] might have with the

developer."

8. Although Section III.6 of the Operating Agreement

requires that the organization conduct "an annual membership

meeting," and it provides that "any member may call a special

membership meeting at any time by communicating to all other

members the plan to schedule a special meeting," there is no

evidence that the organization has ever held a meeting or

passed a resolution. This fact was partially acknowledged by

Mr. Dukate when he confirmed that no meetings have been held

since the City adopted the amendments in December 2007. Minimal

activities conducted by the organization include the filing of a

Petition and participating in this matter, sending emails and

correspondence to members of the Boca Teeca community, and the

hiring of one expert and counsel shortly before the hearing.

9. According to a letter he wrote to his neighbors on

June 22, 2007, or around a week after Save Boca was formed,

Mr. Dukate urged them to join Save Boca "to coordinate the

process" of negotiating with MCZ on behalf of the community in

order to reduce the impact of the project as much as possible.

Intervenor's Exhibit 21. In an earlier email authored by

Mr. Dukate on June 10, 2007, concerning the possibility of

hiring an attorney to oppose the project, he stated that

"[c]onsidering the amount of money that the city was extracting

from this developer -- $3myn [$3 million] $185K for the median

beautification more money for work-force housing -- we should

have no trouble getting in excess of $300k for our community, or

almost $10k/house." Intervenor's Exhibit 22.

10. Through cross-examination at hearing, Intervenor

sought to establish that there was no action ever taken by the

corporation to approve the filing of a petition in this case.

However, that issue was not pursued in the Joint Proposed

Recommended Order and it is assumed that claim has been

abandoned. The Operating Agreement indicates that all

management decisions will require "the approval of a majority of

managers" and that "[a]ction by written consent may be taken

without a meeting, without prior notice, and without a vote."

Petitioners' Exhibit 12, page 1. Ms. Dukate is the only manager

and she alone could presumably make a decision to initiate a

legal proceeding on behalf of Save Boca. Except for the

Petition itself, there is no evidence of any other "written

consent."

B. Background

11. As noted above, MCZ purchased the Club in December

2004. The Club consists of approximately 212 acres on which are

located a residential community known as Boca Teeca, three nine-

hole golf courses (known as the north, west, and south courses),

a clubhouse, an inn, and maintenance facilities. The Club is

bounded on the west by Interstate 95 (I-95), on its southern

border by Yamato Road, by a railroad track which lies just west

of North Dixie Highway (State Road 811) on its eastern side, and

by a canal on its northern boundary. Northwest Second Avenue (a

part of which is also known as Boca Raton Boulevard), a City-

maintained road, runs in a north-south direction through the

eastern half of the property, while Jeffrey Street intersects

with Northwest Second Avenue and runs from there through the

center of the property in a northwest direction and eventually

crosses over I-95 where it becomes Clint Moore Road.

12. MCZ plans to redesign the Club by significantly

upgrading the eighteen-hole championship golf course, creating a

new nine-hole executive golf course from an existing nine-hole

championship course, creating new enhanced social facilities,

and constructing 211 new townhome units. The townhomes will be

constructed on approximately 29.58 acres in the southwest

portion of the property just east of I-95 and south of Jeffrey

Street. Nine holes of the existing golf course are currently

located on that site and will be eliminated, to be replaced by a

nine-hole executive course in another area of the Club. It is

fair to infer that one of the driving forces behind this

challenge is Petitioners' opposition to the construction of 211

townhomes on what is now open space (currently a nine-hole golf

course) lying to the west-southwest of the homes of Mr. Dukate

and presumably some other Save Boca members.

13. By application filed with the City on April 10, 2007,

MCZ sought approval of the two plan amendments in question,

including a change in the 29.58 acres from Recreation and Open

Space to Residential Medium (Ordinance No. 4987) and a text

amendment (consisting of a new goal, policy, and four objectives

and an amendment to an existing policy) to the City's

Transportation Element (Ordinance No. 4991). The FLUM amendment

allows a density on the property not to exceed 9.5 units per

acre, although MCZ has agreed to not exceed 7.1 units per acre.

See Policy LU.1.1.2. The text amendments specifically provide

for the adoption of an Alternate Traffic Concurrency Standard

(ATCS). The effect of the text amendments is to allow a new

interim level of service (LOS) standard (1,960 two-way peak hour

trips) for that portion of Northwest Second Avenue extending

from Yamato Road to Jeffrey Street to account for the

anticipated impacts of the proposed development. This was

necessary since the traffic volume on the roadway has been, and

is currently, exceeding the upper limit of its established LOS E

(1,550 vehicles at peak hour). Any development approved

pursuant to the ATCS must also employ certain mitigation

measures, such as improved turn lanes.

14. The amendments were considered at a meeting of the

City's Planning and Zoning Board on June 7, 2007. With one

dissenting vote, the Board recommended approval to the City.

The amendments were then considered and approved by the City

Council at a public hearing conducted on September 11, 2007. On

September 25, 2007, the amendment package was transmitted to the

Department for its review. (The amendment package included four

Ordinances; however, only two are in issue.) On November 30,

2007, the Department issued its Objections, Recommendations and

Comment Report (ORC), which cited objections relating to

ensuring adequate potable water and transportation capacity to

support the proposed map amendments and establishing a level of

service (LOS) standard "consistent with Rule 9J-5, F.A.C." More

specifically, in terms of traffic impacts, the Department was

concerned that the City had only evaluated the impacts of the

proposed development rather than the maximum development

potential that would be allowed under the new land use category.

15. On December 11, 2007, the City Council voted to adopt

Ordinance Nos. 4987 and 4991, which approved the change in the

FLUM and amended the Transportation Element. The amendment

package was transmitted to the Department for its final review

on December 17, 2007. That package included revised data and

analysis in response to the ORC. See Finding of Fact 44, infra .

16. On January 25, 2008, a Department staff report was

issued recommending that the two Ordinances be found in

compliance. This was approved by the Office of Comprehensive

Planning on January 28, 2008.

17. On February 4, 2008, the Department published its

Notice of Intent in the Boca Raton News .

18. On February 25, 2008, Petitioners filed their Petition

contending that Ordinance Nos. 4987 and 4991 were not in

compliance. As grounds, they asserted that Ordinance No. 4987

(the FLUM amendment) is inconsistent with Objective REC. 3.1.0

of the Plan, while they generally contended that Ordinance No.

4991 (the text amendment) is inconsistent with the EAR and

various provisions within the Transportation Element of the

Plan, is not supported by adequate data and analysis, and

violates the concurrency statute.

C. Petitioners' Objections

19. Petitioners first contend that the FLUM amendment is

inconsistent with Objective REC 3.1.0, which requires the City

to "[d]esignate, acquire, or otherwise preserve a system of open

space" that, among other things, "provides visual relief from

urban development." The Petition alleges that the amendment

"reduces the availability of open space, as well as, the

availability of land designated for recreational use within the

city and does not provide visual relief from urban development."

Petition, paragraph 15.

20. Mr. Dukate's residence is approximately 150 feet from

the location of the proposed townhome development and overlooks

a golf course, some trees, and I-95 in the distance.

21. The proposed townhomes are designed to resemble villas

in a Key West architectural style and are clustered in groups of

six connected by pedestrian walkways. The height restriction

for all units is thirty-five feet. However, the townhomes

closest to the single-family homes have been designed as two-

story units. There will be significant landscaping and a buffer

between the townhomes and I-95 and the existing single-family

homes to the east. The evidence shows that if the property is

developed, it will provide visual relief from urban development.

22. In addition, the proposed development provides

substantial open space on site, over sixty percent more than is

required by the City's Land Development Code.

23. The FLUM amendment also furthers the cited Objective

by providing pedestrian and bicycle linkages between parks,

schools, residential, and commercial areas.

24. Although the issue of compatibility was not raised in

the Petition except in the context of proving standing, the

City's Principal Planner, Jennifer Hofmeister, established that

her review of the FLUM amendment was a "lot more detailed and

specific than a lot of other local governments would do [for]

their compatibility analysis." Ms. Hofmeister concluded that

the two uses are compatible under the current Plan. In making

her analysis, she reviewed the adjacent land uses on the FLUM,

the proposed site plan submitted by MCZ, including the maximum

height of the townhomes, and the densities allowed by single-

family neighborhoods and the new land use. Ms. Hofmeister

further noted that higher density housing has existed adjacent

to single-family homes in the area just north of Yamato Road

since the Club was developed in 1973 or 1974. She also pointed

out that in the field of planning, medium density (such as

townhomes) is considered a transitional land use in the

residential land use category and is compatible with a single-

family neighborhood.

25. Petitioners' planning expert, Deborah Golden-Gestner,

acknowledged that while she had reviewed parts of the

application file, such as the Department of Transportation's

(DOT) traffic comments, she had never seen or reviewed the

challenged plan amendments before she presented testimony at the

final hearing.

26. Ms. Golden-Gestner contended that the City's review

process was flawed because it failed to consider the 1973 master

plan for the Boca Teeca community, which limited development to

1,774 units, of which 1,682 have been built to date. Therefore,

she concluded that the FLUM amendment violates the terms of that

plan since it allows 211 more units to be built. However,

consistency with a master plan is not a compliance

consideration. Further, the 1973 master plan was not raised as

an issue in the Petition. Assuming arguendo that the master

plan is data that could have been considered by the City

(although this argument was not made by Petitioners), Ms.

Hofmeister established that the property subject to the FLUM

amendment (a golf course) has been purchased by a separate

entity (MCZ) and is subject to a different master plan.

27. Petitioners have not shown beyond fair debate that the

FLUM amendment is inconsistent with the cited Objective or is

otherwise not in compliance.

28. Ordinance No. 4991 amends the Transportation Element

of the Plan in several respects. First, it revises Policy TRAN.

1.3.1., which prescribes the LOS standards to be maintained on

roadways during peak hour and daily conditions, by providing

that an exception to those LOS standards is permitted if it is

"approved pursuant to Goal 5 of the Transportation Element." At

the same time, the Ordinance creates a new Goal 5 which reads as

follows:

GOAL TRAN. 5.0.0: IT IS THE GOAL OF THE

CITY OF BOCA RATON TO IMPLEMENT INTERIM

CONCURRENCY MEASURES FOR CONSTRAINED

ROADWAYS IDENTIFIED IN THE COMPREHENSIVE

PLAN, PENDING THE ADOPTION BY THE CITY

COUNCIL OF A MULTI-MODAL TRANSPORTATION

DISTRICT ("MMTD") FOR THE CITY.

29. The City also created the following rather lengthy

objective and policies to implement the above goal:

OBJECTIVE TRAN. 5.1.0: The City Council

shall adopt interim traffic concurrency

measures that are compatible with, and

supportive of, MMTD concepts and principles,

including the provision of alternative modes

of transportation, funding mechanisms to

support transit, applicable roadway

improvements and transportation mode

connectivity.

POLICY TRAN. 5.1.1: The Boca Raton City

Council established as its "Major Issue"

pursuant to the 2005 Evaluation and

Appraisal Report, the adoption of an MMTD

for the City. As an interim measure,

pending adoption of MMTD Goal, Objective and

Policy amendments to the Comprehensive Plan,

the City Council desires to implement a

procedure for the approval of an alternative

traffic concurrency standard ("ATCS") over

roadways that are constrained and exceed the

adopted level-of-service as provided in

Policy TRAN 1.3.1. Any development approved

pursuant to the ATCS shall employ mitigation

measures as provided below and must be

consistent with all other provisions of the

Comprehensive Plan.

Any development approved pursuant to the

ATCS shall implement mitigation measures

including, but not limited to, the

following:

a. All development shall include on-site

and off-site non-vehicular transportation

improvements including sidewalks, shared use

pathways, transit facilities and/or bike

lanes. These improvements shall be

constructed to either tie into or expand

existing public facilities as a means to

provide connectivity to existing regional

transit facilities.

b. All development shall continue to test

for concurrency pursuant to the Palm Beach

County Traffic Performance Standards

Ordinance.

c. Any required roadway network

improvements otherwise consistent with the

Comprehensive Plan, such as turn lanes and

signalization improvements shall be

constructed by, and at the expense of, the

petitioner [developer].

d. All development shall include a

Transportation Demand Management program,

traffic calming techniques, a complementary

mix of land uses, appropriate densities and

intensities of land, access to transit

facilities, access management plans and

pedestrian friendly site design.

e. Any development approved pursuant to

this Comprehensive Plan goal shall enter

into an agreement documenting any and all

mitigation measures, including any funding

necessary to implement MMTD improvements

(i.e. mitigation measures) proposed to

mitigate roadway level-of-service impacts.

POLICY TRAN. 5.1.2: The City shall adopt

appropriate Land Development Regulations

prior to the approval of any development

pursuant to the Code.

POLICY TRAN. 5.1.3: Any request for

development approval pursuant to the ATCS

shall be authorized by the City Council

through an amendment to the Comprehensive

Plan, and shall be processed in accordance

with the Conditional Land Use Amendments and

Rezoning provisions found at Chapter 23,

Article VI, of the Land Development Code.

POLICY TRAN. 5.1.10: Policy TRAN. 1.4.8.

establishes NW 2nd Avenue from Yamato Road

to the northern City Limit as a 2-lane,

undivided, constrained roadway, in order to,

among other reasons, maintain the

residential character of the adjacent

neighborhoods. The following establishes

the ATCS for the proposed Ocean Breeze

development ("Development") (Universal

Conditional Approval Request (UC-06-04)) to

satisfy traffic concurrency under Goal 5 of

the Transportation Element, pursuant to the

purposes stated in this Goal and Objective,

subject to the following mitigation measures

and conditions:

a. The level-of-service for NW 2nd Avenue

between Yamato Road and Jeffrey Street is

hereby established as 1,960 two-way peak

hour trips.

b. The Ocean Breeze developer shall enter

into a written mitigation agreement to

implement the below described mitigation

measures, including but not limited to those

measures provided in POLICY TRAN. 5.1.1., as

more specifically defined below.

1. The developer shall contribute

$6,000,000 to the City to offset roadway

capacity constraints. These dollars shall

be used by the City to improve NW 2nd Avenue

as a 4-lane divided highway or to fund MMTD

improvements that will impact the

Development. The Mitigation Agreement shall

specify the disposition of funds in the

event the Development Order expires.

2. The developer shall construct the

following off-site MMTD improvements:

sidewalks along NW 2nd Avenue and Jeffrey

Street to tie the proposed development into

the City's pedestrian and bikeway system.

3. The Mitigation Agreement shall not be

transferred or assignable without the

written consent of the City and it shall be

entered into prior to the issuance of a

Development Order.

* * *

(Although the terms of a mitigation agreement between a local

government and a developer are not normally included in the

comprehensive plan, the testimony was that local governments are

now incorporating this type of language in their plans.)

30. Petitioners have alleged that the amendments adopted

by Ordinance No. 4991 are not in compliance for a number of

reasons, some of which are quite general in nature and do not

identify the specific parts of the lengthy text amendments that

are actually being challenged. First, they argue that the

amendments are inconsistent with a statement found at page 37 of

the City's 2005 EAR, which reads as follows:

For any significant future development to

occur in this area, Boca Raton Blvd. would

need to be widened to a four (4)-lane

divided roadway. Developers would be

required to fund this improvement. The

estimated cost to widen Boca Raton Blvd. to

a four (4)-lane divided road is

approximately 14.3 million dollars based

upon the FDOT Transportation Cost Manual.

Petitioners generally assert that because the Mitigation

Agreement entered into by the developer and the City only

provides for $6 million for the widening of Northwest 2nd Avenue

(Boca Raton Boulevard) and not the $14.3 million referred to in

the EAR, the amendment and the EAR are inconsistent.

31. An EAR is the first step in updating a local

government's comprehensive plan and is prepared every seven

years to determine if the plan's goals, objectives, and policies

are being met, or if new goals, objectives, and policies need to

be implemented. See § 163.3191, Fla. Stat.; Fla. Admin. Code R.

9J-5.003(44). Once an EAR is found to be sufficient by the

Department, the next step is for the local government to adopt

EAR-based amendments which incorporate the recommended revisions

in the EAR. However, there is no requirement in Chapter 163,

Florida Statutes, or Florida Administrative Code Rule Chapter

9J-5 that plan amendments be consistent with EAR provisions.

See § 163.3184(1)(b), Fla. Stat. In fact, the City may deviate

from changes recommended in the EAR, so long as the action taken

is supported by adequate data and analysis. In this case, the

proposed amendments are not EAR-based amendments, and the

Department did not review, and was not required to review, the

City's EAR to determine whether the proposed amendments were

consistent with that document. 6

32. Petitioners further allege that the City is basing the

amendments on the adoption and implementation of the MMTD, which

"may, or may not be adopted." Petition, paragraph 18. They go

on to allege that this in turn violates GOAL TRAN. 1.0.0, which

provides that a goal of the City shall be to provide a safe

transportation system.

33. The purpose of a MMTD is to promote alternative forms

of transportation, such as pedestrian, bicycle, and transit

modes, in order to reduce automobile trips. The 2005 EAR

identified the adoption of a MMTD as a major issue for the City.

Intervenor's Exhibit 7, Chapter 3. While the City is currently

in the planning stages for the establishment of a MMTD, it must

first have money in the budget to implement the changes and then

prepare amendments to the Plan and Code of Ordinances. The

precise date when this will occur, if at all, is unknown.

34. The evidence established that the plan amendments are

neither contingent nor dependent on the implementation of the

MMTD. Indeed, the traffic analysis supporting the amendments

has not assumed that any trips would be removed from the roadway

by the implementation of the MMTD. Further, the Department did

not consider the implementation of the MMTD in its review of the

amendments nor deem it necessary. If the City does in fact

implement the MMTD at some future date, it will need to amend

its Plan by a separate amendment. Therefore, the MMTD is not

relevant to determining whether the amendments are in

compliance. 7

35. Petitioners further allege that the plan amendment,

which specifically modifies the LOS to allow for 1,960 two-way

trips on a segment of Northwest Second Avenue, violates Policy

TRAN. 1.4.8 by allowing "congestion which will jeopardize the

safety of not only the motorists but especially the pedestrians

and the reduction of the quality of life and lead to degradation

of the residential character of the community." Petition,

paragraph 19. The policy allegedly contravened provides that

"NW 2nd Avenue from Yamato Road to the northern city limits

shall remain a 2-lane undivided constrained facility in order to

maintain the residential character and provide a pedestrian and

bicycle friendly culture to adjacent neighborhoods."

36. The segment of roadway at issue is Northwest Second

Avenue between Jeffrey Street and Yamato Road, which cuts

through the eastern half of the Club and is a local road.

Although classified as a "2-lane undivided constrained facility"

in the Plan, this roadway is actually considered an undivided

three-lane roadway because it has a number of dedicated left

turn lanes. Like all City (or local) roads, this segment is

designated LOS E, which allows for 1,550 two-way peak trips.

This LOS has been consistently exceeded since 1994. (Local

governments have the discretion to establish LOS standards on

local roads that are not consistent with any LOS standards

established by the DOT. See § 163.3180(10), Fla. Stat.)

37. The LOS as defined in the Highway Capacity Manual and

accepted by the City and Palm Beach County (County) is

ultimately defined in terms of driver delay.

38. The City Traffic Engineer, Douglass Hess, established

that various improvements which are required by the City as

conditions of approval for these amendments will help improve

the LOS along this segment. Specifically, the developer will be

required to install sidewalks along Northwest Second Avenue and

turn lane improvements at the intersection of Northwest Second

Avenue and Jeffrey Street. The turn lane improvements include a

redesign of the north-bound turn lane (by expanding the lane

from 120 feet to 300 feet long), which will allow for more

storage of cars, and the addition of a new south-bound turn lane

which will direct traffic to West Jeffrey Street.

39. Mr. Hess also analyzed the intersection of Northwest

Second Avenue and Jeffrey Street on a chart demonstrating the

average motorist's delay during the morning and afternoon peak

hours under three different scenarios. See Intervenor's Exhibit

18. The first scenario was as the intersection currently exists

in 2007 peak season; the second is 2010 conditions without the

development; and the third demonstrated 2010 conditions with the

development, including the lane improvements. The Exhibit

reflects that the average delay in seconds during morning and

afternoon peak hours under existing traffic conditions in 2007

is now 74.8 and 73.1 seconds, respectively, or LOS E. Under

2010 traffic conditions with development, including the required

improvements, the average delay in seconds will be reduced to

30.5 and 47.3 seconds during morning and afternoon peak hours,

respectively, or within the standards for LOS C and D.

Therefore, any congestion will greatly improve with this

development and the improvements required by the City.

40. Petitioners further allege that Policy TRAN. 1.3.7 is

violated "due to a lack of accurate [traffic] data being

provided to the city" (Petition, paragraph 17), and

"[i]ncreasing the peak-hour traffic level of service standards

for a development results in having no standards at all and

should not be allowed under the policies of responsible growth

planning and therefore violates the concurrency requirements

required by the State of Florida" Petition, paragraph 20.

41. Policy TRAN. 1.3.7 provides that "[p]roposed land use

changes shall only be approved when traffic impact studies or

mitigation measures ensure that adopted roadway level-of-service

standards will be upheld." The new LOS for the segment in

question is 1,960 two-way peak trip hours, of which only

seventy-eight are attributable to the proposed development at

the Club during the peak hour.

42. In determining the impact of the development, the City

Traffic Engineer considered a number of factors. First, he

noted that the traffic volumes on this segment of roadway had

actually been declining over the past several years. Even so,

he elected to increase the existing traffic by a compounded

growth rate of 1.15 percent per year. Second, based upon data

provided by the County and City, he also included committed

traffic that has not yet materialized on the roadway network.

This is traffic that is associated with the approved projects

within the area that have not yet reached full build-out of the

development. Finally, he added to the roadway network the

traffic associated with the Club development.

43. The foregoing analysis resulted in the volume on the

relevant segment of roadway to be 1,908 in the peak hour.

Because of concerns noted by the Department in its ORC, which

asked that the City assume a total build-out of the proposed new

zoning category rather than the reduced number of units proposed

by MCZ, the City made a second analysis of the traffic impacts.

44. In its second analysis, the City evaluated the impacts

using a horizon year of 2012, rather than 2010. Even though the

developer proposed to construct only 211 townhomes, the City

assumed that there would be 281 dwelling units on the property.

With these new assumptions, the traffic volume increased to

1,958, which was still within the proposed LOS standard of 1,960

vehicles during the peak hour. The City reacted appropriately

to this data and analysis when it adopted the challenged

amendments.

45. In challenging Ordinance No. 4991, Petitioners relied

primarily upon the testimony of Larry Hymowitz, a Transportation

Planner with the DOT who submitted comments to the Department on

November 21, 2007, as part of the Department's review process.

See Petitioners' Exhibit 10. The DOT is one of the agencies

that is required by law to be provided with copies of proposed

amendments for review and to then forward its comments to the

Department. In criticizing the same amendment, Ms. Golden-

Gestner also relied heavily upon the DOT's comments.

46. Although Mr. Hymowitz concluded that there was a lack

of information submitted by the City to demonstrate that

adequate mitigation had been proposed to offset the increased

traffic from the project, he did not review the adoption package

or any other documentation dated after September 2007.

Therefore, he was unaware of the additional data and analysis

submitted by the City. In this respect, his analysis was

flawed. Mr. Hymowitz also incorrectly assumed that the LOS for

the Boca Raton Boulevard segment was LOS D, or 1,250 trips per

peak hour. In doing so, he overlooked a footnote in the City's

transmittal package to the Department which explained that links

within the jurisdiction of the City are assigned LOS E.

47. Moreover, the only objection noted by the DOT in its

written comments was related to potential traffic impacts on

I-95 and U.S. Highway 1. The evidence establishes, however,

that the impact of the proposed development on I-95 between

Glades Road and Yamato Road (which are the roadways having the

two closest ramps onto I-95) was only six trips during peak

hour, which is considered to be insignificant and requires no

mitigation. Similarly, the impacts on U.S. Highway 1 were

small, and the impacted sections would continue to operate at an

acceptable LOS D throughout the building of the project and into

the horizon year of 2012.

48. Petitioners' traffic consultant, Mr. Wyman, concluded

that because Northwest Second Avenue is already a constrained

roadway, and the project will generate new traffic, the City

should require "proper" mitigation, such as four-laning the

roadway or scaling back the development. In reaching this

conclusion, Mr. Wyman questioned the accuracy of the City

consultant's traffic report. He stated that if he had prepared

the traffic report, he would have used more conservative

estimates for pass-by trips and different directional components

in the traffic count calculation. He agreed, however, that the

traffic counts were done "professionally and correctly," he

stated that he "respected" the methodology used by the City's

consultant, and he agreed that a traffic study includes some

subjective analysis by the person performing the study.

49. Finally, in a similar vein, Petitioners have raised a

broad contention that "concurrency" requirements under

Section 163.3180, Florida Statutes, have been violated.

Petition, paragraph 20. (Although the statute runs for eight

pages, a more specific citation to a particular part of the

statute was not given.) In responding to this broad contention,

the Department's Regional Planning Administrator pointed out

that the Department is not required to make a concurrency

determination in its review of a plan amendment. Rather, its

review is limited to determining whether the local government is

properly planning for its public facilities. In doing so, the

Department determines whether the City (a) has the facilities

available at the present time to meet the needs of the proposed

development, or (b) the City has plans for facilities to be in

place when the impacts of the development occur. Thus, the

actual concurrency determination is made by the local government

at the time a development order or permit is issued. In this

case, the Department determined that the new LOS standard of

1,960 trips on the impacted roadway segment was sufficient to

accommodate the development of the project at the maximum

development potential. Finally, contrary to Petitioners'

assertion, in establishing the new LOS, the City was not

required to include any capital improvements in its schedule of

capital improvements since none are necessary to maintain that

standard.

50. Petitioners have failed to show beyond fair debate

that the plan amendments adopted by Ordinance No. 4991 are not

supported by adequate data and analysis, are inconsistent with

other Plan provisions, violate the concurrency statute, or are

otherwise not in compliance.

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3184(9),

Florida Statutes.

52. In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

Section 163.3184(1)(a), Florida Statutes. The parties agree

that Mr. Dukate owns property and resides within the City and he

submitted oral or written comments to the City during the

adoption process. Even though Save Boca has engaged in minimal

activities as an organization, given the Department's liberal

interpretation of the above statute, the facts arguably show

that it is operating a "business" within the City. It also

submitted comments to the City during the adoption of the

amendments. Therefore, it is an affected person and has

standing to participate in this matter.

53. Once the Department renders a notice of intent to find

a plan amendment in compliance, as it did here, that plan

provision "shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

§ 163.3184(9)(a), Fla. Stat. Therefore, Petitioner bears the

burden of proving beyond fair debate that the challenged plan

amendment is not in compliance. This means that "if reasonable

persons could differ as to its propriety," a plan amendment must

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

1997). Put another way, where there is "evidence in support of

both sides of a comprehensive plan amendment, it is difficult to

determine that the County's decision was anything but 'fairly

debatable.'" Martin County v. Section 28 Partnership, Ltd. , 772

So. 2d 616, 621 (Fla. 4th DCA 2000).

54. For the reasons given in the Findings of Fact,

Petitioner has failed to establish beyond fair debate that the

amendments are not in compliance. Therefore, the plan

amendments adopted by Ordinance Nos. 4887 and 4991 are in

compliance.

55. Finally, Intervenor's Motions for Sanctions, Fees, and

Costs under Section 163.3184(12), Florida Statutes, filed on

July 14, 2008, must be adjudicated by a separate final order.

See , e.g. , Highlands Homeowners' Association, Inc. v. Department

of Community Affairs, et al. , DOAH Case No. 06-3946GM, 2007 Fla.

ENV LEXIS 94 at *22 (DOAH Aug. 15, 2007). Therefore,

jurisdiction is retained in this matter for that purpose if the

Motions are renewed by Intervenor within thirty days after a

final order is entered in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a final order determining that the City's plan amendments

adopted by Ordinance Nos. 4987 and 4991 are in compliance.

Jurisdiction is retained for the purpose of considering

Intervenor's Motions for Sanctions, Fees, and Costs, if renewed

within thirty days after a final order is entered in this

matter.

DONE AND ENTERED this 4th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of August, 2008.

ENDNOTES

1/ All statutory references are to the 2007 version of the

Florida Statutes.

2/ The ruling quashed a subpoena issued to a member of the

City's Planning and Zoning Board on the basis of the rationale in

Department of Agriculture and Consumer Services v. Broward County

et al. , 810 So. 2d 1056, 1058 (Fla. 1st DCA 2002), and cases

cited therein. See also Rainbow Lighting, Inc., et al. v.

Chiles, et al. , 707 So. 2d 939, 940 (Fla. 3d DCA 1998)(a city

commissioner's motive in adopting ordinances is not subject to

judicial scrutiny).

3/ A MMTD gives consideration to transportation modes other than

by automobile, such as pedestrian, bicycle, and transit modes,

and is designed to reduce the number of automobile trips or

vehicle miles of travel. See § 163.3180(15), Fla. Stat.

4/ Although Petitioners' traffic consultant, Mr. Wyman, referred

to a document styled "Summary of Findings: False Assumptions,

Conflicting Data and Incomplete Data Within the Proposed Ocean

Breeze Land Use Amendment Application," the document was never

marked for identification purposes as an exhibit or moved into

evidence. However, the witness summarized portions of his

findings during his testimony.

5/ The ruling noted, among other things, that even though

counsel acknowledged that she had checked the DOAH website

sometime during the week of July 7, 2008, and was aware that a

transcript had been filed, thereby triggering the running of the

twenty-day time period in which to file a proposed recommended

order, she did not file the request for an extension of time

until three days after the due date. By then, the other parties

had timely filed their Joint Proposed Recommended Order and

served a copy on counsel.

6/ As explained by the City Traffic Engineer, the $14.3 million

estimate in the EAR was for the cost of four-laning Northwest 2nd

Avenue from Yamato Road to the northern City limits, which is

considerably longer in length than the portion of Northwest 2nd

Avenue between Yamato Road and Jeffrey Street, which is at issue

here. This is confirmed by Policy TRAN. 1.4.8 and the EAR

itself.

7/ A related contention, that the amendment is not in compliance

because it violates Goal TRAN. 1.0.0, is also rejected.

According to the Department's Regional Planning Administrator,

there has never been "any instance where we have found a not in

compliance determination strictly on a comprehensive plan goal."

Rather, it is objectives and policies "that really are the action

items and the measures of achievability that really come into

play in terms of evaluating a comprehensive plan amendment."

COPIES FURNISHED:

Thomas G. Pelham, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

711 Talladega Street

West Palm Beach, Florida 33405-1443

Samuel Dean Bunton, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Maureen McCarthy Daughton, Esquire

Broad and Cassel

215 South Monroe Street, Suite 400

Tallahassee, Florida 32301-1804

Patricia M. Baloyra, Esquire

Broad and Cassel

One Biscayne Tower

Two Biscayne Boulevard

21st Floor

Miami, Florida 33131-1806

Daniel L. Abbott, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301-1949

Diane Grub Freiser, Esquire

City Attorney

201 West Palmetto Park Road

Boca Raton, Florida 33432-3730

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.