10-001973GM Sunset Drive Holdings, Llc vs. City Of Lake Worth And Department Of Community Affairs Status: Closed Recommended Order on Thursday, March 24, 2011.

Summary: No prejudice in planning process shown when City failed to adopt amendments more than 180 days after receipt of ORC or in making substantive changes to amendments after receipt of ORC.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSET DRIVE HOLDINGS, LLC, )

AND LA SONNA HAYES - TOMANEK, )

)

Petitioner s, )

)

vs. ) Case No s . 10 - 1973GM

) 10 - 1980GM

CITY OF LAKE WORTH AND )

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Respondent s . )

______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was conducted by video

teleconferencing before the Division of Administrative Hearings

(DOAH) by its assigned Administrative Law Judge, D . R.

Alexander, on January 12, 201 1 , in West Palm Beach and

Tallahassee , Florida.

APPEARANCES

For Petitioner: Donald R. Bicknell, Jr., Esquire

( Sunset ) Gary Dytrych & Ryan, P.A.

701 U.S. Highway One, Suite 402

North Palm Beach, Florida 33408 - 4514

For Petitioner: La Sonna Hayes - Tomanek, pro se

( Hayes - Tomanek) 713 South Pine Street

Lake Worth, Florida 33460 - 4749

For Respondent: Jean Marie Middleton, Esquire

(City) Assistant City Attorney

7 North Dixie Highway

Lake Worth, Florida 33460 - 3725

For Respondent : L. Mary Thomas , Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE S

The issue s are (1) whether the City o f Lake Worth (City)

followed required statutory and rule procedures in adopting the

height restrictions on pages 22 and 23 of the Future Land Use

Element (FLUE) of the Evaluation and Appraisal Report (EAR)

amendment s , and (2) whether the adoption of the EAR - based

amendment s by the City more than 120 days after receiving the

Department of Community Affairs' ( Department's ) Objections,

Recommendations, and Comments (ORC) report renders the m not in

compliance.

PRELIMINARY STATEMENT

Ordinance No. 2008 - 25 , also known as the EAR - based

amendments, was adopted by the City on Octob er 2 0 , 2009,

pursuant to s ection 163.3191, Florida Statutes . Among other

things, it includes new height restrictions in Table 1 of the

FLUE of the Comprehensive Plan (Plan) that apply to various

categories of land use designations . On December 3 1, 20 09 , the

Department published notice of its intent to find the EAR

amendments to be in compliance.

The first p etition for f ormal a dministrative h earing was

filed by Petitioner, Sunset Drive Holdings, LLC (Sunset), on

January 19, 2010, but was dismissed by the Department by Order

dated March 15, 2010, with leave to file an amended petition

within 21 days. A s econd a mended p etition for f ormal

a dministrative h earing was filed by Sunset on April 2 , 2010,

alleging that (a) Table 1 had been adopted by the City without

following required statutory and rule procedures , and (b) the

City had incorrectly identified the land use designation on its

property on the new Future Land Use Map (FLUM). The second

petition w as referred by the Department to DOAH on April 14,

2010, and was assigned Case No. 10 - 1973GM. In its transmittal

letter, the Department stated that the only issue to be tried

was "the EAR Amendment challenge regarding height restrictions.

As to the Sunset property land use designation, this is sue has

already been adjudicated." This limitation on the issues was

reconfirmed by Order dated May 20, 2010. Sunset's m otion for

r econsideration of that Order was denied by Order dated

October 13, 2010. (Due to the cases being abated, a ruling on

the motion was deferred until the case s were reset for hearing. )

On April 5, 2010, Petitioner, La Sonna Hayes - Tomanek, filed a

paper with the Department styled "Appeal and Intervention" in

which she stated that she was "challeng ing as to the definitions

of 'Building Hiegts ' [sic] , Table 1, policy 1" based on

procedural irregularities by the City. Although not filed

within 21 days after the notice of intent was published , her

petition was treated by the Department as a separate t imely

petition (rather than a petition to intervene) and was forwarded

to DOAH on April 14, 2010 . It was assigned Case No. 10 - 1980GM.

The cases were consolidated by Order dated April 23, 2010.

By Notice of Hearing dated April 26, 2010, a final hearing

was scheduled in Lake Worth, Florida, on July 13 - 15, 2010. At

the request of the parties, on June 7, 2010, the matter was

abated pending settlement negotiations. After settlement

efforts failed, t he cases were rescheduled to November 16 - 18,

2010. On November 2, 2010, Sunset was authorized to file a

t hird a mended p etition for f ormal a dministrative h earing, which

added a contention that the EAR amendment s are not in compliance

because they were adopted by the City more than 120 days after

receiving t he Department's ORC report . It also sought to add a

contention that the City assigned an incorrect land use

designation to its property, an issue already excluded by the

Department in its transmittal letter and twice by the

undersigned. Therefore, only t he first issue was added. A

joint pre - hearing stipulation (stipulation) was filed by the

parties on November 15, 2010. At the request of the parties,

the matter was again continued pending settlement negotiations.

Thereafter, the matter was rescheduled to January 12, 2011 , and

was conducted by video teleconferencing, with the parties

located in West Palm Beach and Tallahassee, Florida . By Order

dated December 28, 2010, the undersigned denied Sunset's m otion

to a mend n otice of h earing to again include the allegation that

its property was given an incorrect land use designation on the

FLUM.

At the hearing, Sunset presented the testimony of C. Wes ley

Blackman, a certified land planner with CWB Associates, Inc.,

and accepted as an expert. Also, it offered Sunset Exhibits 1 -

1 5 . All were received in evidence except 6 and 11, which were

proffered onl y as they related to the excluded issue . Exhibits

13 and 14 are the depositions of Richard W. Post and Bob Dennis,

both Department planners. Ms. Hayes - Tomanek testified on her

own behalf and adopted the evidence presented by Sunset. Also,

she offered Tomanek Exhibits 1 - 13. Exhibit 13 was initially

received and a ruling on the remaining exhibits was reserved ;

however, a further review indicates that all of the exhibits

relate to zoning issues on her property, which are not relevant

to a compliance determination, and the City and Department's

objections to their receipt in evidence are sustained. The City

offered City Exhibits 1 - 9 , which w ere received in evidence.

Exhibits 7 and 8 are the same depositions of Richard W. Post and

Bob Dennis offered by Sunset , while Exhibit 9 is the deposition

of former City Commissioner Cara Jennings. The Departmen t did

not present any witnesses , but adopted the evidence presented by

the City. Finally, Joint Exhibits 1 - 7 were received in

evidence.

The T ranscript of the hearing was filed on February 3 ,

2011. At the request of the parties, they were given until

March 15, 2011, in which to file p roposed f indings of f act and

c onclusions of l aw . The y were timely filed by Sunset and

jointly by the City and Department on March 15, 2011, and have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

A . The P arties

1. Sunset is a Fl orida limited liability company whose

principal address is 5601 C orporate Way, Suite 111, West Palm

Beach, Florida. It owns property located at 826 Sunset Drive

South with in the City. See Sunset Exhibit 3. The property is

currently classified on the FLUM as County Medium Residential 5. 1

There is no factual dispute t hat Sunset is an affected person

and has standing to participate in this proceeding.

2. Ms. Hayes - Tomanek owns property within the City. She

submitted comments regarding the height restrictions during the

public hearing on October 20, 2009, adopting the EAR amendments.

See City Exhibit 6, Minutes, p. 7.

3. The C ity is a local government that administers the

C ity's Plan. Th e C ity adopted the EAR - based amendments which

are being c ontested here.

4. The Department is the state land planning agency

charged with the responsibility of reviewing plan amendments of

local governments, such as the C ity .

B. The Amendments

5. On October 1, 2008, the City's EAR - based amendments

were passed on first reading and transmitted to the Department.

See Joint Exhibit 2. These amendments did not include any

height - based restrictions on the three categories of residential

property in the Plan: Single - Family, Medium - Density, and High -

Density . These three categories make up around 75 percent of

the City's total land area . According to Sunset's expert,

height restrictions for those categories (which are less

stringent than those later adopted and being challenged here )

were then in the City's zoning ordinances.

6 . On January 14, 2009, the Department issued its ORC

report regarding the EAR - based amendments. See Joint Exhibit 3.

Objection 4 in th e report stated in part that the "City has not

adequately established its mixed use districts . . . because the

mixed u sed categories do not establish the types of non -

residential uses or the appropriate percentage distribution

among the mix of uses, or other objective measurement. In

addition, the General Commercial, Industrial, Public, Public

Recreation and Open Space F uture Land Use categories do not

include the densities and intensities of use for these

categories." Id. Sunset's expert points out that the ORC

report , and in particular Objection 4 , did not recommend any

changes to the residential categories of propert y.

7. Accompanying the ORC report was a document styled

"Transmittal Procedures," which stated, among other things, that

"[u]pon receipt of this letter, the City of Lake Worth has 120

days in which to adopt, adopt with changes, or determine that

the City will not adopt the proposed EAR - based amendments." Id.

The 120 - day period expired on May 14, 2009. See Sunset Exhibit

15.

8. The City initially scheduled an adoption hearing on

May 5, 2009. See Sunset Exhibit 8. For reasons not of record,

the EAR amendments were not considered that day. On June 25,

2009, then City Commissioner Jennings wrote Bob Dennis,

Department Regional Planning Administrator, and asked whether

the City could incorporate certain substantive ch anges into its

EAR amendments between the first (transmittal) and second

(adoption) readings. Among others, she asked if the following

change to the EAR amendments could be made :

Establish or change the maximum building heights in

various land use classif ications. During the master

plan process, the city received public input regarding

maximum building heights . . . . The height changes

vary from a 10' reduction to a 25' reduction in

different land use categories.

The letter included an outline of the proposed changes in seven

land use categories , including the three residential categories .

See City Exhibit 2. In her deposition, Commissioner Jennings

stated that around the time of the transmittal hearing in

January 2008 she had requested that new height restrictions be

incorporated into the EAR amendments , but based on conversations

with City staff, she was under the impression that these changes

could not be made at that time . See City Exhibit 9.

9. By letter dated Jul y 29, 2009, the Department, th r ough

its Chief of Office of Comprehensive Planning, responded to

Commissioner Jennings' inquiry as follows:

The proposed maximum building height changes

identified in your letter are for the Single Family

Residential, Medium Density Multi - family Residential,

High Density Multi - family Residential, Mixed Use,

Downtown Mixed Use, Transit Oriented Development, and

the General Commercial land use categories. Contrary

to the [FLUM] revisions discussed above, the City did

transmit p roposed amendments to Future Land [Use]

Policy 1.1.3, including new and revised Sub - policies

1.1.3.1 through 1.1.3.11 concerning these land use

classifications. Height limitations were proposed for

the Mixed Use and Downtown Mixed Use land use

categories. In addition, the Department's ORC Repo rt

includes an objection that the Mixed Use, Downtown

Mixed Use, Transit Oriented Development, General

Commercial, Industrial, Public, Recreation and Open

Space land use classifications do not establish

adequate densities and intensities of use for these

c ategories. In preparing this letter, the Department

notes that an intensity standard of 0.1 F.A.R. (floor

area ratio) was proposed for the Recreation and Open

Space category.

To address the Department's objection, the Department

recommended the City incl ude densities and intensities

for the listed land use categories and specify the

percentage distribution among the mix of uses in the

mixed use categories. Appropriate intensity standards

for non - residential uses include a height limit and

maximum square footage or a floor area ratio.

Because the City transmitted amendments that included

revisions to the residential and several non -

residential land use categories and because the

Department's ORC Report identified the need to include

density and intensity standards for the mixed use

categories and several non - residential land use

categories, it would be acceptable for the City to

revise the proposed height limitations previously

submitted or to include height limitations for the

other land use categories . As noted above, height

alone is not a density or intensity standard.

(Emphasis added)

City Exhibit 3. This determination by the Department was just

as reasonable, or even more so, tha n the contrary view expressed

by Sunset's expert .

10 . After receiving this advice, t he City conducted a

number of meetings regarding the adoption of the EAR - based

amendments , including a change in the height restrictions . On

September 2, 2009, a Board meeting was conducted regarding the

proposed new height r estrictions. The Board voted unanimously

to adopt the changes. The Minutes of that meeting reflect that

a "special workshop" would be conducted by the Commission at

6:00 p.m., September 14, 2009, "to address height and intensity"

changes to the EAR amend ments. See City Exhibit 4, Minutes, p.

11. On October 11 , 2009, a " s pecial meeting" of the Commission

was conducted . Finally, on October 20 , 2009, the City conducted

the adoption hearing. The re is no dispute that Petitioners

appeared and presented comments in opposition to the proposed

changes. By a 3 - 2 vote, Ordinance No. 2008 - 25 was adopted with

the new height restrictions described on Table 1 , pages 2 2 and

23 of the FLUE . 2 See Joint Exhibit 4 ; Sunset Exhibit 6. This

was 279 days after the City received the ORC report . The

adopted amendments were then submitted to the Department for its

review.

1 1 . Notices for each hearing (but not the special

workshop) were published in a local newspaper. See City

Exhibits 4 , 5, and 6. Each advertisement indicated that one of

the purposes of the meetings was to consider the "City's EAR -

Based Amendments." No further detail regarding th e EAR

amendments was given. Sunset's expert acknowledged that local

governments do not alw ays provide more specificity than this in

their plan amendment notices but stated he considers it to be a

good planning practice to provide more information.

1 2 . On December 3 0 , 2009, the Department issued its Notice

of Intent to find the amendments in compliance. See City

Exhibit 5. The following day, a copy of the Notice of Intent

was published in T he Lake Worth Herald . On January 19, 2010,

Sunset timely filed a p etition co ntending that certain

procedural errors were committed by the City during the adoption

process. This p etition was t wice amended prior to hearing. A

p etition was filed by Ms. Hayes - Tomanek on April 5, 2010.

C. Petitioners' Objections

1 3 . Petitioners first point out that the City did not

follow the requirement in section 163.3184(7) (a) that it "shall"

adopt the amendments no more than 120 days after receipt of the

ORC report . They contend that because the City failed to do so,

this require s a determination that the EAR - based amendments are

not in compliance. At hearing, Sunset also relied upon (for the

first time) Florida Administrative Code Rule 9J - 11.009(8)(e),

which provides that "[p]ursuant to Section 163.3191(10), no

amendment may be adopted if the local government has failed to

timely adopt and transmit the evaluation and appraisal report -

based amendments."

1 4 . The parties agree that the City did not adopt the EAR -

based amendments until 279 days after receipt of the ORC report .

Acco rding to the Department 's Regional Planning Administrator,

Bob Dennis, the Department took no action after the 120 days had

run because the statute "gives no guidance as to what happens

when a local government does take more than the prescribed time

in the statute." See City Exhibit 8. He also indicated that

t he Department has no policy relative to this situation.

Sunset's expert agreed that there is no penalty in the statute

in the event a local government takes more than the prescribed

time.

1 5 . Ric hard Post, a Department Planning Analyst , noted

that local governments sometimes take longer than the statutory

time periods to "send in adopted amendments, and the Department

has taken no particular posture regarding their tardiness." See

City Exhibit 7. He further noted that if a filing is late, as

it was here, it does not affect the Department's review. A s a

safeguard, if an adopted amendment is transmitted to the

Department after the statutory time period , it is reviewed by a

planner to determine whether the information is still relevant

and appropriate or has become "stale" and out - of - date. In this

case , the Department reviewed the adopted amendment s and ,

notwithstanding the passage of 279 days since the ORC report was

received by the City , the amendments were found to be in

compliance.

1 6 . F o r the reasons expressed in Endnote 3 , infra , rule

9J - 11.009(8)(e) does not prohibit the City from adopting the

challenged amendments. 3

1 7 . While Petitioners stated that they have suffered

prejudice because the new height restrictions will adversely

impact the use of the ir property, there was no evidence that the

delay in adopting the amendments affected their ability to

participate in the pla nning process.

1 8 . Petitioners also contend that the City failed to

follow statutory and rule procedures when it added the height

restrictions between the first and second readings of the

amendments. By the City doing so, Petitioners argue that rule

9J - 5 .004 was violated, which requires that the City "adopt

procedures to provide for and encourage public participation in

the planning process, including consideration of amendments to

the . . . evaluation and appraisal reports[,]" and procedures to

assure that the public is noticed regarding such changes and has

the opportunity to submit written comments. Petitioners further

argue that sub section s 163.3191(4) and (10) w ere violated by

this action . The first subsection requires the lo cal planning

agency (the Planning & Zoning Board) to prepare the EAR report

( as opposed to the amendments) in conformity with "its public

participation procedures adopted as required by s. 163.3181[,]"

while the second subsection requires that the City ado pt the

EAR - based amendments in conformity with sections 163.3184,

163.3187, and 163.3189. They also argue that the notice of the

adoption hearing violated section 163.3184(15) because it failed

to describe the changes being made to the original EAR - based

amendments. Finally, they contend the new height restrictions

were not responsive to the ORC report. 4

1 9 . Petitioners do not contend that the City has failed to

adopt adequate public participation procedures, as required by

rule 9J - 5.004. Rather, they contend that the participation

procedures were violated , and that members of the public and

other reviewing agencies, such as the Treasure Coast Regional

Planning Council, were not given an opportunity to provide input

on the new height restri ctions .

20 . The record shows that , notwithstanding the content of

the notice in the newspaper, both Petitioners were aware of new

height restrictions being considered by the City prior to their

adoption, and both were given the opportunity to participate at

the adoption hearing. The re is no dispute that Sunset submitted

written or oral comments to the Commission prior to the adoption

of the new height restrictions. Likewise, Ms. Hayes - Tomanek has

closely followed the planning process for year s (mainly because

she wants the density/intensity standards on her property

increased) and became aware of the new height restrictions well

before they were adopted. The record further shows that the new

height limitations w ere discussed by City officials before

June 2009, when Commissioner Jennings authored her letter to the

Department, and that written input on that issue was received

from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It

is fair to construe t hese comments from numerous citizens as

"public input . " Even if there was an error in procedure, there

is no evidence that either Petitioner was substantially

prejudiced in the planning process .

21 . Finally, Petitioners ' assert ion that the new height

restrictions ar e not responsive to the ORC report has been

considered and rejected . See Finding of Fact 9 , supra ; City

Exhibits 7 and 8. 5

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the par ties hereto

pursuant to s ections 120.569, 120.57(1), and 163.318 4( 9 ) (a) .

2 3 . In order to have standing to challenge a plan

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

s ection 163.3184(1)(a) . There is no factual dispute that

Petitioners are affected persons within the meaning of the law.

2 4 . Once the Department renders a notice of intent to find

a plan amendment in compliance, as it did here, th at 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. In this case, Petitioners do not

contend that the amendments are not in compliance as that t erm

is defined in section 163.3184(1)(b); rather, they contend that

the amendments should be found not in compliance or set aside on

the ground the City failed to comply with required p rocedural

requirements for adopting the amendments.

2 5 . Section 163. 3181 and rule 9J - 5.004 direct local

governments to adopt procedures to ensure that public

participation is consistent with the plain language in the

statute and rule. They are not, however, part of the

Department's statutory review to determine whether an amendment

is in compliance. See , e.g. , Emerald Lakes Residents' Ass ' n,

Inc. v. Collier C n ty. , Case No. 02 - 3090GM, 2003 Fla. ENV LEXIS

58 at *32 - 33 (Fla. DOAH Feb. 10, 2003), modified in part , Case

No. DCA03 - GM - 103, 2003 Fla. ENV LEXIS 57 (Fla. DCA May 8, 2003).

Therefore, when a party asserts that a statutory notice or other

procedural requirement has not been satisfied, it bears the

burden of showing prejudice occasioned by the procedural e rror.

In a compliance case, th is burden is not satisfied by showing

t hat the adoption of the challenged amendment will have an

impact on the use of the owner's property . Rather, affected

person s must demonstrate that a procedural error affect ed their

ability to participate in the planning process.

2 6 . Petitioners first contend that the City erred by not

adopting the amendments within 120 days after receipt of the

Department's ORC report. Section 163.3184(7)(a) provides in

part that upon receipt of the ORC report, the local government

"shall have 120 days to adopt or adopt with changes the proposed

comprehensive plan or s. 163.3191 plan amendments." The parties

agree that in this case, the City did not adopt the amendments

until 279 days after rece ipt of the ORC. However, this is a

procedural requirement, and not a compliance criterion under

section 163.3184(1)(b). A s noted above, a bsent a showing of

prejudice, a plan amendment will not be set aside for failing to

timely adopt EAR - based amendments . See , e.g. , Brevard C n ty . v.

Dep't of Community Aff ai rs , Case Nos. 00 - 1956GM and 02 - 0391GM,

2002 Fla. ENV LEXIS 288 at *35 - 36 (Fla. DOAH Dec. 16, 2002),

modified in part , Case No. DCA03 - GM - 013A (Fla. DCA Feb. 25,

2003); Dep't of Community Aff airs v. Hamilton C n ty. , Case No.

91 - 6038GM, 1995 Fla. ENV LEXIS 87 at *30 - 32 and *39 - 42 (Fla.

DOAH April 21, 1995), modified in part , (Fla. A dmin. C omm. Aug.

9, 1995); McSherry v. Alachua C n ty. , Case No. 02 - 2676GM, 2004

Fla. ENV LEXIS 252 at *152 (Fla. DOAH Oc t. 18, 2004), modified

in part , Case No. DCA04 - GM - 224 (Fla. DCA May 2, 2005). Here,

Petitioners had actual notice of the ad option hearing and the

proposed changes being considered, which enabled them to submit

oral or written comments in opposition to those amendments.

Therefore, it is concluded that even if the City erred by

adopting the EAR - based amendments 279 days after r eceipt of the

Department's ORC report, Petitioners would not be prejudiced by

the error.

2 7 . Petitioners also contend that the inclusion of new

height restrictions after the ORC report was received was a

material and substantive change to the EAR amendm ent s , and it

was done without following the required statutory and rule

procedures. Again, if procedural errors occurred, Petitioners

have not demonstrated they were prejudice d in the planning

process. Finally, assuming that the argument regarding the

height changes being non - responsive to the ORC report is a

substantive rather than a procedural claim , the Department's

determination that the change was responsive to the ORC is just

as reasonable as the contrary interpretation reached by Sunset's

ex pert.

2 8 . For the reasons given in the Findings of Fact and

Conclusions of Law , Petitioner s have failed to establish a basis

upon which to find the amendments not in compliance or to have

them set aside . Therefore, the EAR - based amendments adopted by

Ordinance No . 2008 - 25 are in compliance.

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 EAR - based amendments adopted

by Ordinance No. 2008 - 25 are in compliance.

DONE AND ENTERED this 24th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of March , 20 1 1 .

E NDNOTE S

1 / Sunset's property was annexed into the City on an undisclosed

date prior to June 2006. Until the City assigns it a City land

use designation, it continues to carry a c ounty land use

designation. See § 171.062(2), Fla. Stat. By proffer, Sunset's

counsel presented argument that its property was annexed by the

City from Palm Beach County (County) in late 2005. It then

carried the County's land use designation of Medium Residential

5, which allows up to five dwelling units per acre. On June 6,

2006, the Ci ty adopted Ordinance No. 2006 - 04, which changed the

land use designation from Medium Residential 5 to a City land use

designation allowing up to 20 dwelling units per acre. That

ordinance was later rescinded on August 25 , 2009, prior to the

adoption of the EAR amendments. Therefore, when Ordinance No.

2008 - 25 was adopted, the appropriate designation was County

Medium Residential 5. This issue was fully addressed in

preliminary orders issued on May 20, October 13, and De cember 28,

2010.

2/ The changes include a reduction in the maximum height of

buildings in the residential land use categories, a reduction in

the number of stories for structures in certain categories, and a

modification in the manner in which the City m easures the height

of a building.

3 / Sunset misconstrues the purpose and intent of rule 9J -

11.009(8)(e). That rule provides in relevant part that "no

amendment may be adopted if the local government failed to timely

adopt and transmit the [EAR - based] am endments." But language in

section 163.3191(10) makes it clear that this prohibition refers

to amendments other than the EAR - based amendments. Th e statute

provides that "beginning July 1, 2006, failure to timely adopt

and transmit update amendments to the comprehensive plan based on

the [EAR] shall result in a local government being prohibited

from adopting amendments to the comprehensive plan until the

[EAR] update amendments have been adopted and transmitted to the

[Department]."

4/ In its Proposed Recommended Order, Sunset alleges for the

first time that by making these changes, the City also violated

rules 9J - 11.006 and 9J - 11.011(5)(a)5.a. However, this procedural

claim was not raised in Sunset's third amended petition for

administrative hearing or by stipulation of the parties and is

therefore untimely .

5 / Objection 4 in the ORC report was a concern by the Department

that mixed use categories (the downtown and transit - orie nted

development districts) did not establish the types of non -

residential uses or establish the percentage distribution among

the mix of uses that would be guiding development in these

districts. The re was deposition testimony that the Department

was als o concerned that the general commercial, industrial,

public, and public recreation and open space categories did not

include densities and intensities of use for those categories.

Because (a) height is a component of intensity and density, (b)

the origina l amendments include revisions to the residential and

several non - residential categories of land, and (c) the ORC

report identifies a need to include density and intensity

standards for the mixed use categories and several non -

residential land use categori es, the Department concluded that

the inclusion of the height restrictions was permissible. This

deposition testimony by Department planners Post and Dennis has

been accepted as being the most persuasive on this issue and has

been accepted.

COPIES FURNISHED:

William A. Buzzett, S ecretary

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Deborah K. Kearney , General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Donald R . Bicknell, Jr., Esquire

Gary Dytrych & Ryan, P.A.

701 U.S. Highway One, Suite 402

North Palm Beach, Florida 33408 - 4514

La Sonna Hayes - Tomanek

713 South Pine Street

Lake Worth , Florida 33460 - 4749

L. Mary Thomas , Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Jean Marie Middleton, Esquire

Assistant City Attorney

7 North Dixie Highway

Lake Worth, Florida 33460 - 3725

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.