10-001980GM
La Sonna Hayes-Tomanek vs.
City Of Lakeworth And Department Of Community Affairs
Status: Closed
Recommended Order on Thursday, March 24, 2011.
Recommended Order on Thursday, March 24, 2011.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8SUNSET DRIVE HOLDINGS, LLC, )
13AND LA SONNA HAYES - TOMANEK, )
20)
21Petitioner s, )
24)
25vs. ) Case No s . 10 - 1973GM
34) 10 - 1980GM
38CITY OF LAKE WORTH AND )
44DEPARTMENT OF COMMUNITY )
48AFFAIRS, )
50)
51Respondent s . )
55______________________________ )
57RECOMMENDED ORDER
59Pursuant to notice, this matter was conducted by video
68teleconferencing before the Division of Administrative Hearings
75(DOAH) by its assigned Administrative Law Judge, D . R.
85Alexander, on January 12, 201 1 , in West Palm Beach and
96Tallahassee , Florida.
98APPEARANCES
99For Petitioner: Donald R. Bicknell, Jr., Esquire
106( Sunset ) Gary Dytrych & Ryan, P.A.
114701 U.S. Highway One, Suite 402
120North Palm Beach, Florida 33408 - 4514
127For Petitioner: La Sonna Hayes - Tomanek, pro se
136( Hayes - Tomanek) 713 South Pine Street
144Lake Worth, Florida 33460 - 4749
150For Respondent: Jean Marie Middleton, Esquire
156(City) Assistant City Attorney
1607 North Dixie Highway
164Lake Worth, Florida 33460 - 3725
170For Respondent : L. Mary Thomas , Esquire
177(Department) Department of Community Affairs
1822555 Shumard Oak Boulevard
186Tallahassee, Florida 32399 - 2100
191STATEMENT OF THE ISSUE S
196The issue s are (1) whether the City o f Lake Worth (City)
209followed required statutory and rule procedures in adopting the
218height restrictions on pages 22 and 23 of the Future Land Use
230Element (FLUE) of the Evaluation and Appraisal Report (EAR)
239amendment s , and (2) whether the adoption of the EAR - based
251amendment s by the City more than 120 days after receiving the
263Department of Community Affairs' ( Department's ) Objections,
271Recommendations, and Comments (ORC) report renders the m not in
281compliance.
282PRELIMINARY STATEMENT
284Ordinance No. 2008 - 25 , also known as the EAR - based
296amendments, was adopted by the City on Octob er 2 0 , 2009,
308pursuant to s ection 163.3191, Florida Statutes . Among other
318things, it includes new height restrictions in Table 1 of the
329FLUE of the Comprehensive Plan (Plan) that apply to various
339categories of land use designations . On December 3 1, 20 09 , the
352Department published notice of its intent to find the EAR
362amendments to be in compliance.
367The first p etition for f ormal a dministrative h earing was
379filed by Petitioner, Sunset Drive Holdings, LLC (Sunset), on
388January 19, 2010, but was dismissed by the Department by Order
399dated March 15, 2010, with leave to file an amended petition
410within 21 days. A s econd a mended p etition for f ormal
423a dministrative h earing was filed by Sunset on April 2 , 2010,
435alleging that (a) Table 1 had been adopted by the City without
447following required statutory and rule procedures , and (b) the
456City had incorrectly identified the land use designation on its
466property on the new Future Land Use Map (FLUM). The second
477petition w as referred by the Department to DOAH on April 14,
4892010, and was assigned Case No. 10 - 1973GM. In its transmittal
501letter, the Department stated that the only issue to be tried
512was "the EAR Amendment challenge regarding height restrictions.
520As to the Sunset property land use designation, this is sue has
532already been adjudicated." This limitation on the issues was
541reconfirmed by Order dated May 20, 2010. Sunset's m otion for
552r econsideration of that Order was denied by Order dated
562October 13, 2010. (Due to the cases being abated, a ruling on
574the motion was deferred until the case s were reset for hearing. )
587On April 5, 2010, Petitioner, La Sonna Hayes - Tomanek, filed a
599paper with the Department styled "Appeal and Intervention" in
608which she stated that she was "challeng ing as to the definitions
620of 'Building Hiegts ' [sic] , Table 1, policy 1" based on
631procedural irregularities by the City. Although not filed
639within 21 days after the notice of intent was published , her
650petition was treated by the Department as a separate t imely
661petition (rather than a petition to intervene) and was forwarded
671to DOAH on April 14, 2010 . It was assigned Case No. 10 - 1980GM.
686The cases were consolidated by Order dated April 23, 2010.
696By Notice of Hearing dated April 26, 2010, a final hearing
707was scheduled in Lake Worth, Florida, on July 13 - 15, 2010. At
720the request of the parties, on June 7, 2010, the matter was
732abated pending settlement negotiations. After settlement
738efforts failed, t he cases were rescheduled to November 16 - 18,
7502010. On November 2, 2010, Sunset was authorized to file a
761t hird a mended p etition for f ormal a dministrative h earing, which
775added a contention that the EAR amendment s are not in compliance
787because they were adopted by the City more than 120 days after
799receiving t he Department's ORC report . It also sought to add a
812contention that the City assigned an incorrect land use
821designation to its property, an issue already excluded by the
831Department in its transmittal letter and twice by the
840undersigned. Therefore, only t he first issue was added. A
850joint pre - hearing stipulation (stipulation) was filed by the
860parties on November 15, 2010. At the request of the parties,
871the matter was again continued pending settlement negotiations.
879Thereafter, the matter was rescheduled to January 12, 2011 , and
889was conducted by video teleconferencing, with the parties
897located in West Palm Beach and Tallahassee, Florida . By Order
908dated December 28, 2010, the undersigned denied Sunset's m otion
918to a mend n otice of h earing to again include the allegation that
932its property was given an incorrect land use designation on the
943FLUM.
944At the hearing, Sunset presented the testimony of C. Wes ley
955Blackman, a certified land planner with CWB Associates, Inc.,
964and accepted as an expert. Also, it offered Sunset Exhibits 1 -
9761 5 . All were received in evidence except 6 and 11, which were
990proffered onl y as they related to the excluded issue . Exhibits
100213 and 14 are the depositions of Richard W. Post and Bob Dennis,
1015both Department planners. Ms. Hayes - Tomanek testified on her
1025own behalf and adopted the evidence presented by Sunset. Also,
1035she offered Tomanek Exhibits 1 - 13. Exhibit 13 was initially
1046received and a ruling on the remaining exhibits was reserved ;
1056however, a further review indicates that all of the exhibits
1066relate to zoning issues on her property, which are not relevant
1077to a compliance determination, and the City and Department's
1086objections to their receipt in evidence are sustained. The City
1096offered City Exhibits 1 - 9 , which w ere received in evidence.
1108Exhibits 7 and 8 are the same depositions of Richard W. Post and
1121Bob Dennis offered by Sunset , while Exhibit 9 is the deposition
1132of former City Commissioner Cara Jennings. The Departmen t did
1142not present any witnesses , but adopted the evidence presented by
1152the City. Finally, Joint Exhibits 1 - 7 were received in
1163evidence.
1164The T ranscript of the hearing was filed on February 3 ,
11752011. At the request of the parties, they were given until
1186March 15, 2011, in which to file p roposed f indings of f act and
1201c onclusions of l aw . The y were timely filed by Sunset and
1215jointly by the City and Department on March 15, 2011, and have
1227been considered in the preparation of this Recommended Order.
1236FINDINGS OF FACT
1239A . The P arties
12441. Sunset is a Fl orida limited liability company whose
1254principal address is 5601 C orporate Way, Suite 111, West Palm
1265Beach, Florida. It owns property located at 826 Sunset Drive
1275South with in the City. See Sunset Exhibit 3. The property is
1287currently classified on the FLUM as County Medium Residential 5. 1
1298There is no factual dispute t hat Sunset is an affected person
1310and has standing to participate in this proceeding.
13182. Ms. Hayes - Tomanek owns property within the City. She
1329submitted comments regarding the height restrictions during the
1337public hearing on October 20, 2009, adopting the EAR amendments.
1347See City Exhibit 6, Minutes, p. 7.
13543. The C ity is a local government that administers the
1365C ity's Plan. Th e C ity adopted the EAR - based amendments which
1379are being c ontested here.
13844. The Department is the state land planning agency
1393charged with the responsibility of reviewing plan amendments of
1402local governments, such as the C ity .
1410B. The Amendments
14135. On October 1, 2008, the City's EAR - based amendments
1424were passed on first reading and transmitted to the Department.
1434See Joint Exhibit 2. These amendments did not include any
1444height - based restrictions on the three categories of residential
1454property in the Plan: Single - Family, Medium - Density, and High -
1467Density . These three categories make up around 75 percent of
1478the City's total land area . According to Sunset's expert,
1488height restrictions for those categories (which are less
1496stringent than those later adopted and being challenged here )
1506were then in the City's zoning ordinances.
15136 . On January 14, 2009, the Department issued its ORC
1524report regarding the EAR - based amendments. See Joint Exhibit 3.
1535Objection 4 in th e report stated in part that the "City has not
1549adequately established its mixed use districts . . . because the
1560mixed u sed categories do not establish the types of non -
1572residential uses or the appropriate percentage distribution
1579among the mix of uses, or other objective measurement. In
1589addition, the General Commercial, Industrial, Public, Public
1596Recreation and Open Space F uture Land Use categories do not
1607include the densities and intensities of use for these
1616categories." Id. Sunset's expert points out that the ORC
1625report , and in particular Objection 4 , did not recommend any
1635changes to the residential categories of propert y.
16437. Accompanying the ORC report was a document styled
"1652Transmittal Procedures," which stated, among other things, that
"1660[u]pon receipt of this letter, the City of Lake Worth has 120
1672days in which to adopt, adopt with changes, or determine that
1683the City will not adopt the proposed EAR - based amendments." Id.
1695The 120 - day period expired on May 14, 2009. See Sunset Exhibit
170815.
17098. The City initially scheduled an adoption hearing on
1718May 5, 2009. See Sunset Exhibit 8. For reasons not of record,
1730the EAR amendments were not considered that day. On June 25,
17412009, then City Commissioner Jennings wrote Bob Dennis,
1749Department Regional Planning Administrator, and asked whether
1756the City could incorporate certain substantive ch anges into its
1766EAR amendments between the first (transmittal) and second
1774(adoption) readings. Among others, she asked if the following
1783change to the EAR amendments could be made :
1792Establish or change the maximum building heights in
1800various land use classif ications. During the master
1808plan process, the city received public input regarding
1816maximum building heights . . . . The height changes
1826vary from a 10' reduction to a 25' reduction in
1836different land use categories.
1840The letter included an outline of the proposed changes in seven
1851land use categories , including the three residential categories .
1860See City Exhibit 2. In her deposition, Commissioner Jennings
1869stated that around the time of the transmittal hearing in
1879January 2008 she had requested that new height restrictions be
1889incorporated into the EAR amendments , but based on conversations
1898with City staff, she was under the impression that these changes
1909could not be made at that time . See City Exhibit 9.
19219. By letter dated Jul y 29, 2009, the Department, th r ough
1934its Chief of Office of Comprehensive Planning, responded to
1943Commissioner Jennings' inquiry as follows:
1948The proposed maximum building height changes
1954identified in your letter are for the Single Family
1963Residential, Medium Density Multi - family Residential,
1970High Density Multi - family Residential, Mixed Use,
1978Downtown Mixed Use, Transit Oriented Development, and
1985the General Commercial land use categories. Contrary
1992to the [FLUM] revisions discussed above, the City did
2001transmit p roposed amendments to Future Land [Use]
2009Policy 1.1.3, including new and revised Sub - policies
20181.1.3.1 through 1.1.3.11 concerning these land use
2025classifications. Height limitations were proposed for
2031the Mixed Use and Downtown Mixed Use land use
2040categories. In addition, the Department's ORC Repo rt
2048includes an objection that the Mixed Use, Downtown
2056Mixed Use, Transit Oriented Development, General
2062Commercial, Industrial, Public, Recreation and Open
2068Space land use classifications do not establish
2075adequate densities and intensities of use for these
2083c ategories. In preparing this letter, the Department
2091notes that an intensity standard of 0.1 F.A.R. (floor
2100area ratio) was proposed for the Recreation and Open
2109Space category.
2111To address the Department's objection, the Department
2118recommended the City incl ude densities and intensities
2126for the listed land use categories and specify the
2135percentage distribution among the mix of uses in the
2144mixed use categories. Appropriate intensity standards
2150for non - residential uses include a height limit and
2160maximum square footage or a floor area ratio.
2168Because the City transmitted amendments that included
2175revisions to the residential and several non -
2183residential land use categories and because the
2190Department's ORC Report identified the need to include
2198density and intensity standards for the mixed use
2206categories and several non - residential land use
2214categories, it would be acceptable for the City to
2223revise the proposed height limitations previously
2229submitted or to include height limitations for the
2237other land use categories . As noted above, height
2246alone is not a density or intensity standard.
2254(Emphasis added)
2256City Exhibit 3. This determination by the Department was just
2266as reasonable, or even more so, tha n the contrary view expressed
2278by Sunset's expert .
228210 . After receiving this advice, t he City conducted a
2293number of meetings regarding the adoption of the EAR - based
2304amendments , including a change in the height restrictions . On
2314September 2, 2009, a Board meeting was conducted regarding the
2324proposed new height r estrictions. The Board voted unanimously
2333to adopt the changes. The Minutes of that meeting reflect that
2344a "special workshop" would be conducted by the Commission at
23546:00 p.m., September 14, 2009, "to address height and intensity"
2364changes to the EAR amend ments. See City Exhibit 4, Minutes, p.
237611. On October 11 , 2009, a " s pecial meeting" of the Commission
2388was conducted . Finally, on October 20 , 2009, the City conducted
2399the adoption hearing. The re is no dispute that Petitioners
2409appeared and presented comments in opposition to the proposed
2418changes. By a 3 - 2 vote, Ordinance No. 2008 - 25 was adopted with
2433the new height restrictions described on Table 1 , pages 2 2 and
244523 of the FLUE . 2 See Joint Exhibit 4 ; Sunset Exhibit 6. This
2459was 279 days after the City received the ORC report . The
2471adopted amendments were then submitted to the Department for its
2481review.
24821 1 . Notices for each hearing (but not the special
2493workshop) were published in a local newspaper. See City
2502Exhibits 4 , 5, and 6. Each advertisement indicated that one of
2513the purposes of the meetings was to consider the "City's EAR -
2525Based Amendments." No further detail regarding th e EAR
2534amendments was given. Sunset's expert acknowledged that local
2542governments do not alw ays provide more specificity than this in
2553their plan amendment notices but stated he considers it to be a
2565good planning practice to provide more information.
25721 2 . On December 3 0 , 2009, the Department issued its Notice
2585of Intent to find the amendments in compliance. See City
2595Exhibit 5. The following day, a copy of the Notice of Intent
2607was published in T he Lake Worth Herald . On January 19, 2010,
2620Sunset timely filed a p etition co ntending that certain
2630procedural errors were committed by the City during the adoption
2640process. This p etition was t wice amended prior to hearing. A
2652p etition was filed by Ms. Hayes - Tomanek on April 5, 2010.
2665C. Petitioners' Objections
26681 3 . Petitioners first point out that the City did not
2680follow the requirement in section 163.3184(7) (a) that it "shall"
2690adopt the amendments no more than 120 days after receipt of the
2702ORC report . They contend that because the City failed to do so,
2715this require s a determination that the EAR - based amendments are
2727not in compliance. At hearing, Sunset also relied upon (for the
2738first time) Florida Administrative Code Rule 9J - 11.009(8)(e),
2747which provides that "[p]ursuant to Section 163.3191(10), no
2755amendment may be adopted if the local government has failed to
2766timely adopt and transmit the evaluation and appraisal report -
2776based amendments."
27781 4 . The parties agree that the City did not adopt the EAR -
2793based amendments until 279 days after receipt of the ORC report .
2805Acco rding to the Department 's Regional Planning Administrator,
2814Bob Dennis, the Department took no action after the 120 days had
2826run because the statute "gives no guidance as to what happens
2837when a local government does take more than the prescribed time
2848in the statute." See City Exhibit 8. He also indicated that
2859t he Department has no policy relative to this situation.
2869Sunset's expert agreed that there is no penalty in the statute
2880in the event a local government takes more than the prescribed
2891time.
28921 5 . Ric hard Post, a Department Planning Analyst , noted
2903that local governments sometimes take longer than the statutory
2912time periods to "send in adopted amendments, and the Department
2922has taken no particular posture regarding their tardiness." See
2931City Exhibit 7. He further noted that if a filing is late, as
2944it was here, it does not affect the Department's review. A s a
2957safeguard, if an adopted amendment is transmitted to the
2966Department after the statutory time period , it is reviewed by a
2977planner to determine whether the information is still relevant
2986and appropriate or has become "stale" and out - of - date. In this
3000case , the Department reviewed the adopted amendment s and ,
3009notwithstanding the passage of 279 days since the ORC report was
3020received by the City , the amendments were found to be in
3031compliance.
30321 6 . F o r the reasons expressed in Endnote 3 , infra , rule
30469J - 11.009(8)(e) does not prohibit the City from adopting the
3057challenged amendments. 3
30601 7 . While Petitioners stated that they have suffered
3070prejudice because the new height restrictions will adversely
3078impact the use of the ir property, there was no evidence that the
3091delay in adopting the amendments affected their ability to
3100participate in the pla nning process.
31061 8 . Petitioners also contend that the City failed to
3117follow statutory and rule procedures when it added the height
3127restrictions between the first and second readings of the
3136amendments. By the City doing so, Petitioners argue that rule
31469J - 5 .004 was violated, which requires that the City "adopt
3158procedures to provide for and encourage public participation in
3167the planning process, including consideration of amendments to
3175the . . . evaluation and appraisal reports[,]" and procedures to
3187assure that the public is noticed regarding such changes and has
3198the opportunity to submit written comments. Petitioners further
3206argue that sub section s 163.3191(4) and (10) w ere violated by
3218this action . The first subsection requires the lo cal planning
3229agency (the Planning & Zoning Board) to prepare the EAR report
3240( as opposed to the amendments) in conformity with "its public
3251participation procedures adopted as required by s. 163.3181[,]"
3260while the second subsection requires that the City ado pt the
3271EAR - based amendments in conformity with sections 163.3184,
3280163.3187, and 163.3189. They also argue that the notice of the
3291adoption hearing violated section 163.3184(15) because it failed
3299to describe the changes being made to the original EAR - based
3311amendments. Finally, they contend the new height restrictions
3319were not responsive to the ORC report. 4
33271 9 . Petitioners do not contend that the City has failed to
3340adopt adequate public participation procedures, as required by
3348rule 9J - 5.004. Rather, they contend that the participation
3358procedures were violated , and that members of the public and
3368other reviewing agencies, such as the Treasure Coast Regional
3377Planning Council, were not given an opportunity to provide input
3387on the new height restri ctions .
339420 . The record shows that , notwithstanding the content of
3404the notice in the newspaper, both Petitioners were aware of new
3415height restrictions being considered by the City prior to their
3425adoption, and both were given the opportunity to participate at
3435the adoption hearing. The re is no dispute that Sunset submitted
3446written or oral comments to the Commission prior to the adoption
3457of the new height restrictions. Likewise, Ms. Hayes - Tomanek has
3468closely followed the planning process for year s (mainly because
3478she wants the density/intensity standards on her property
3486increased) and became aware of the new height restrictions well
3496before they were adopted. The record further shows that the new
3507height limitations w ere discussed by City officials before
3516June 2009, when Commissioner Jennings authored her letter to the
3526Department, and that written input on that issue was received
3536from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It
3547is fair to construe t hese comments from numerous citizens as
"3558public input . " Even if there was an error in procedure, there
3570is no evidence that either Petitioner was substantially
3578prejudiced in the planning process .
358421 . Finally, Petitioners ' assert ion that the new height
3595restrictions ar e not responsive to the ORC report has been
3606considered and rejected . See Finding of Fact 9 , supra ; City
3617Exhibits 7 and 8. 5
3622CONCLUSIONS OF LAW
36252 2 . The Division of Administrative Hearings has
3634jurisdiction over the subject matter and the par ties hereto
3644pursuant to s ections 120.569, 120.57(1), and 163.318 4( 9 ) (a) .
36572 3 . In order to have standing to challenge a plan
3669amendment, a challenger must be an affected person as defined in
3680s ection 163.3184(1)(a) . There is no factual dispute that
3690Petitioners are affected persons within the meaning of the law.
37002 4 . Once the Department renders a notice of intent to find
3713a plan amendment in compliance, as it did here, th at plan
3725provision "shall be determined to be in compliance if the local
3736government's determination of compliance is fairly debatable."
3743§ 163.3184(9)(a), Fla. Stat. In this case, Petitioners do not
3753contend that the amendments are not in compliance as that t erm
3765is defined in section 163.3184(1)(b); rather, they contend that
3774the amendments should be found not in compliance or set aside on
3786the ground the City failed to comply with required p rocedural
3797requirements for adopting the amendments.
38022 5 . Section 163. 3181 and rule 9J - 5.004 direct local
3815governments to adopt procedures to ensure that public
3823participation is consistent with the plain language in the
3832statute and rule. They are not, however, part of the
3842Department's statutory review to determine whether an amendment
3850is in compliance. See , e.g. , Emerald Lakes Residents' Ass ' n,
3861Inc. v. Collier C n ty. , Case No. 02 - 3090GM, 2003 Fla. ENV LEXIS
387658 at *32 - 33 (Fla. DOAH Feb. 10, 2003), modified in part , Case
3890No. DCA03 - GM - 103, 2003 Fla. ENV LEXIS 57 (Fla. DCA May 8, 2003).
3906Therefore, when a party asserts that a statutory notice or other
3917procedural requirement has not been satisfied, it bears the
3926burden of showing prejudice occasioned by the procedural e rror.
3936In a compliance case, th is burden is not satisfied by showing
3948t hat the adoption of the challenged amendment will have an
3959impact on the use of the owner's property . Rather, affected
3970person s must demonstrate that a procedural error affect ed their
3981ability to participate in the planning process.
39882 6 . Petitioners first contend that the City erred by not
4000adopting the amendments within 120 days after receipt of the
4010Department's ORC report. Section 163.3184(7)(a) provides in
4017part that upon receipt of the ORC report, the local government
"4028shall have 120 days to adopt or adopt with changes the proposed
4040comprehensive plan or s. 163.3191 plan amendments." The parties
4049agree that in this case, the City did not adopt the amendments
4061until 279 days after rece ipt of the ORC. However, this is a
4074procedural requirement, and not a compliance criterion under
4082section 163.3184(1)(b). A s noted above, a bsent a showing of
4093prejudice, a plan amendment will not be set aside for failing to
4105timely adopt EAR - based amendments . See , e.g. , Brevard C n ty . v.
4120Dep't of Community Aff ai rs , Case Nos. 00 - 1956GM and 02 - 0391GM,
41352002 Fla. ENV LEXIS 288 at *35 - 36 (Fla. DOAH Dec. 16, 2002),
4149modified in part , Case No. DCA03 - GM - 013A (Fla. DCA Feb. 25,
41632003); Dep't of Community Aff airs v. Hamilton C n ty. , Case No.
417691 - 6038GM, 1995 Fla. ENV LEXIS 87 at *30 - 32 and *39 - 42 (Fla.
4193DOAH April 21, 1995), modified in part , (Fla. A dmin. C omm. Aug.
42069, 1995); McSherry v. Alachua C n ty. , Case No. 02 - 2676GM, 2004
4220Fla. ENV LEXIS 252 at *152 (Fla. DOAH Oc t. 18, 2004), modified
4233in part , Case No. DCA04 - GM - 224 (Fla. DCA May 2, 2005). Here,
4248Petitioners had actual notice of the ad option hearing and the
4259proposed changes being considered, which enabled them to submit
4268oral or written comments in opposition to those amendments.
4277Therefore, it is concluded that even if the City erred by
4288adopting the EAR - based amendments 279 days after r eceipt of the
4301Department's ORC report, Petitioners would not be prejudiced by
4310the error.
43122 7 . Petitioners also contend that the inclusion of new
4323height restrictions after the ORC report was received was a
4333material and substantive change to the EAR amendm ent s , and it
4345was done without following the required statutory and rule
4354procedures. Again, if procedural errors occurred, Petitioners
4361have not demonstrated they were prejudice d in the planning
4371process. Finally, assuming that the argument regarding the
4379height changes being non - responsive to the ORC report is a
4391substantive rather than a procedural claim , the Department's
4399determination that the change was responsive to the ORC is just
4410as reasonable as the contrary interpretation reached by Sunset's
4419ex pert.
44212 8 . For the reasons given in the Findings of Fact and
4434Conclusions of Law , Petitioner s have failed to establish a basis
4445upon which to find the amendments not in compliance or to have
4457them set aside . Therefore, the EAR - based amendments adopted by
4469Ordinance No . 2008 - 25 are in compliance.
4478RECOMMENDATION
4479Based on the foregoing Findings of Fact and Conclusions of
4489Law, it is
4492RECOMMENDED that the Department of Community Affairs enter
4500a final order determining that the EAR - based amendments adopted
4511by Ordinance No. 2008 - 25 are in compliance.
4520DONE AND ENTERED this 24th day of March , 2011 , in
4530Tallahassee, Leon County, Florida.
4534S
4535D . R. ALEXANDER
4539Administrative Law Judge
4542Division of Administrative Hearings
4546The DeSoto Building
45491230 Apalachee Parkway
4552Tallahassee, Florida 32399 - 3060
4557(850) 488 - 9675
4561Fax Filing (850) 921 - 6847
4567www.doah.state.fl.us
4568Filed with the Clerk of the
4574Division of Administrative Hearings
4578this 24th day of March , 20 1 1 .
4587E NDNOTE S
45901 / Sunset's property was annexed into the City on an undisclosed
4602date prior to June 2006. Until the City assigns it a City land
4615use designation, it continues to carry a c ounty land use
4626designation. See § 171.062(2), Fla. Stat. By proffer, Sunset's
4635counsel presented argument that its property was annexed by the
4645City from Palm Beach County (County) in late 2005. It then
4656carried the County's land use designation of Medium Residential
46655, which allows up to five dwelling units per acre. On June 6,
46782006, the Ci ty adopted Ordinance No. 2006 - 04, which changed the
4691land use designation from Medium Residential 5 to a City land use
4703designation allowing up to 20 dwelling units per acre. That
4713ordinance was later rescinded on August 25 , 2009, prior to the
4724adoption of the EAR amendments. Therefore, when Ordinance No.
47332008 - 25 was adopted, the appropriate designation was County
4743Medium Residential 5. This issue was fully addressed in
4752preliminary orders issued on May 20, October 13, and De cember 28,
47642010.
47652/ The changes include a reduction in the maximum height of
4776buildings in the residential land use categories, a reduction in
4786the number of stories for structures in certain categories, and a
4797modification in the manner in which the City m easures the height
4809of a building.
48123 / Sunset misconstrues the purpose and intent of rule 9J -
482411.009(8)(e). That rule provides in relevant part that "no
4833amendment may be adopted if the local government failed to timely
4844adopt and transmit the [EAR - based] am endments." But language in
4856section 163.3191(10) makes it clear that this prohibition refers
4865to amendments other than the EAR - based amendments. Th e statute
4877provides that "beginning July 1, 2006, failure to timely adopt
4887and transmit update amendments to the comprehensive plan based on
4897the [EAR] shall result in a local government being prohibited
4907from adopting amendments to the comprehensive plan until the
4916[EAR] update amendments have been adopted and transmitted to the
4926[Department]."
49274/ In its Proposed Recommended Order, Sunset alleges for the
4937first time that by making these changes, the City also violated
4948rules 9J - 11.006 and 9J - 11.011(5)(a)5.a. However, this procedural
4959claim was not raised in Sunset's third amended petition for
4969administrative hearing or by stipulation of the parties and is
4979therefore untimely .
49825 / Objection 4 in the ORC report was a concern by the Department
4996that mixed use categories (the downtown and transit - orie nted
5007development districts) did not establish the types of non -
5017residential uses or establish the percentage distribution among
5025the mix of uses that would be guiding development in these
5036districts. The re was deposition testimony that the Department
5045was als o concerned that the general commercial, industrial,
5054public, and public recreation and open space categories did not
5064include densities and intensities of use for those categories.
5073Because (a) height is a component of intensity and density, (b)
5084the origina l amendments include revisions to the residential and
5094several non - residential categories of land, and (c) the ORC
5105report identifies a need to include density and intensity
5114standards for the mixed use categories and several non -
5124residential land use categori es, the Department concluded that
5133the inclusion of the height restrictions was permissible. This
5142deposition testimony by Department planners Post and Dennis has
5151been accepted as being the most persuasive on this issue and has
5163been accepted.
5165COPIES FURNISHED:
5167William A. Buzzett, S ecretary
5172Department of Community Affairs
51762555 Shumard Oak Boulevard
5180Tallahassee, Florida 32399 - 2100
5185Deborah K. Kearney , General Counsel
5190Department of Community Affairs
51942555 Shumard Oak Boulevard
5198Tallahassee, Florida 32399 - 2100
5203Donald R . Bicknell, Jr., Esquire
5209Gary Dytrych & Ryan, P.A.
5214701 U.S. Highway One, Suite 402
5220North Palm Beach, Florida 33408 - 4514
5227La Sonna Hayes - Tomanek
5232713 South Pine Street
5236Lake Worth , Florida 33460 - 4749
5242L. Mary Thomas , Esquire
5246Department of Community Affairs
52502555 Shumard Oak Boulevard, Suite 325
5256Tallahassee, Florida 32399 - 2100
5261Jean Marie Middleton, Esquire
5265Assistant City Attorney
52687 North Dixie Highway
5272Lake Worth, Florida 33460 - 3725
5278NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5284All parties have the right to submit written exceptions within 15
5295days of the date of this Recommended Order. Any exceptions to
5306this Recommended Order should be filed with the agency that will
5317render a final order in this matter.
- Date
- Proceedings
- PDF:
- Date: 03/24/2011
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 03/15/2011
- Proceedings: Notice of Filing (Sunset Drive Holdings, LLC's Proposed Recommended Order).
- PDF:
- Date: 02/08/2011
- Proceedings: Order (granting parties' agreed motion for extension of time to file proposed recommended orders; proposed recommended orders to be filed on or before March 15, 2011).
- PDF:
- Date: 02/08/2011
- Proceedings: Agreed Motion for Extension to File Proposed Recommended Orders filed.
- Date: 02/03/2011
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- PDF:
- Date: 01/25/2011
- Proceedings: Return of Service of Subpoena ad Testificandum (Fedner Alcius) filed.
- Date: 01/12/2011
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/12/2011
- Proceedings: Petitioner's Exhibits (exhibits not available for viewing) filed.
- PDF:
- Date: 01/11/2011
- Proceedings: Petitioner, Sunset Drive Holdings, LLC Exhibit List (exhibits not available for viewing) filed.
- PDF:
- Date: 01/07/2011
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 12, 2011; 11:00 a.m.; West Palm Beach and Tallahassee, FL; amended as to time and setting hearing via videoteleconference).
- PDF:
- Date: 01/03/2011
- Proceedings: Amended Notice of Hearing (hearing set for January 12, 2011; 9:00 a.m.; Lake Worth, FL; amended as to hearing location).
- PDF:
- Date: 12/28/2010
- Proceedings: Order (on Petitioner's motion to amend notice of hearing in regard to issues to be heard at hearing).
- PDF:
- Date: 12/21/2010
- Proceedings: Respondents' Opposition to Sunset Drive Holdings, LLC's Motion to Amend Notice of Administrative Hearing filed.
- PDF:
- Date: 12/20/2010
- Proceedings: Motion to Amend Notice of Hearing in Regard to Issues to be Heard at Hearing filed.
- PDF:
- Date: 12/09/2010
- Proceedings: Notice of Hearing (hearing set for January 12, 2011; 9:00 a.m.; Lake Worth, FL).
- PDF:
- Date: 11/16/2010
- Proceedings: Order Granting Continuance and Placing Case in Abeyance (parties to advise status by December 17, 2010).
- PDF:
- Date: 11/10/2010
- Proceedings: Third Amended Petition for Formal Administrative Hearing (with exhibits attached) filed.
- PDF:
- Date: 11/10/2010
- Proceedings: Amended Notice of Hearing (hearing set for November 17, 2010; 9:30 a.m.; Lake Worth, FL; amended as to date of hearing).
- Date: 11/09/2010
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 11/03/2010
- Proceedings: City of Lake Worth's Opposition to Revised Petition to Intervene Filed by Christina Morrison Pearce 11/1/2010 filed.
- PDF:
- Date: 10/29/2010
- Proceedings: City of Lake Worth's Opposition to Petition to Intervene Filed by Christia Morrion Pearce and Gary Hillert filed.
- PDF:
- Date: 10/22/2010
- Proceedings: Letter to Judge Alexander from D. Bicknell, Jr., regarding parties have conferred and believe that the issue to be tried filed.
- PDF:
- Date: 10/20/2010
- Proceedings: City of Lake Worth's Opposition to Sunset's Motion to Amend Petition for Formal Administrative Hearing and Third Amended Petition (filed in Case No. 10-001980GM).
- PDF:
- Date: 10/20/2010
- Proceedings: City of Lake Worth's Opposition to Sunset's Motion to Amend Petition for Formal Administrative Hearing and Third Amended Petition filed.
- PDF:
- Date: 10/19/2010
- Proceedings: Letter to Judge Alexander from D. Bicknell regarding issues to be tried filed.
- PDF:
- Date: 10/13/2010
- Proceedings: City of Lake Worth's Opposition to Sunset Drive Holdings, LLC's Motion for Oral Argument Regarding Motion for Reconsideration (filed in Case No. 10-001980GM).
- PDF:
- Date: 10/13/2010
- Proceedings: City of Lake Worth's Opposition to Sunset Drive Holdings, LLC's Motion for Oral Argument Regarding Motion for Reconsideration filed.
- PDF:
- Date: 10/13/2010
- Proceedings: Motion for Oral Argument on Petitioners' Motion for Reconsideration filed.
- PDF:
- Date: 10/12/2010
- Proceedings: Motion to Amend Petition for Formal Administrative Hearing filed.
- PDF:
- Date: 10/12/2010
- Proceedings: Department of Community Affairs' Response in Opposition to Sunset Drive Holdings, LLC's Motion for Reconsideration filed.
- PDF:
- Date: 10/12/2010
- Proceedings: City of Lake Worth's Opposition to Sunset Drive Holdings, LLC's Motion for Reconsideration (filed in Case No. 10-001980GM).
- PDF:
- Date: 10/12/2010
- Proceedings: City of Lake Worth's Opposition to Sunset Holding Motion for Reconsideration filed.
- PDF:
- Date: 10/07/2010
- Proceedings: Second Amended Notice of Hearing (hearing set for November 16 and 17, 2010; 9:30 a.m.; Lake Worth, FL; amended as to hearing room location).
- PDF:
- Date: 09/29/2010
- Proceedings: Amended Notice of Hearing (hearing set for November 16 and 17, 2010; 9:30 a.m.; Lake Worth, FL; amended as to dates of hearing).
- PDF:
- Date: 08/25/2010
- Proceedings: Respondent, City of Lake Worth's Notice of Unavailability (signed) filed.
- PDF:
- Date: 08/25/2010
- Proceedings: Respondent, City of Lake Worth's Notice of Unavailability (unsigned) filed.
- PDF:
- Date: 08/24/2010
- Proceedings: Notice of Hearing (hearing set for November 16 through 18, 2010; 9:30 a.m.; Lake Worth, FL).
- PDF:
- Date: 06/07/2010
- Proceedings: Order Canceling Hearing and Placing Case in Abeyance (parties to advise status by September 10, 2010).
- PDF:
- Date: 05/18/2010
- Proceedings: Notice of Appearance (of J. Middleton; filed in Case No. 10-001980GM).
- PDF:
- Date: 05/14/2010
- Proceedings: Department of Community Affairs' Response in Opposition to Sunset Drive Holdings, LLC'S Objection to Limiting Hearing to One (1) Issue filed.
- PDF:
- Date: 04/26/2010
- Proceedings: Notice of Hearing (hearing set for July 13 through 15, 2010; 9:30 a.m.; Lake Worth, FL).
- PDF:
- Date: 04/23/2010
- Proceedings: Order (of Consolidation of DOAH Case Nos. 10-1973GM and 10-1980GM)).
- PDF:
- Date: 04/22/2010
- Proceedings: Notice of Substitution of Counsel for Department of Community Affairs (filed by L.Thomas).
- PDF:
- Date: 04/14/2010
- Proceedings: Notice of Intent to Find the City of Lake Worth Comprehensive Plan Amendment in Compliance filed.
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 04/15/2010
- Date Assignment:
- 04/16/2010
- Last Docket Entry:
- 04/28/2011
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- Other
- Suffix:
- GM
Counsels
-
La Sonna Hayes-Tomanek
Address of Record -
Elaine A. Humphreys, Esquire
Address of Record -
Jean Marie Middleton, Esquire
Address of Record -
Lathika Mary Thomas, Esquire
Address of Record