10-001980GM La Sonna Hayes-Tomanek vs. City Of Lakeworth And Department Of Community Affairs
 Status: Closed
Recommended Order on Thursday, March 24, 2011.


View Dockets  
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.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/28/2011
Proceedings: Agency Final Order
PDF:
Date: 04/28/2011
Proceedings: Agency Final Order filed.
PDF:
Date: 03/24/2011
Proceedings: Recommended Order
PDF:
Date: 03/24/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 03/24/2011
Proceedings: Recommended Order (hearing held January 12, 2011). CASE CLOSED.
PDF:
Date: 03/15/2011
Proceedings: Respondents' Joint Proposed Recommended Order filed.
PDF:
Date: 03/15/2011
Proceedings: (Petitioner`s Proposed) Recommended Order filed.
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 attached) filed.
PDF:
Date: 01/12/2011
Proceedings: Petitioner's Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 01/11/2011
Proceedings: Respondent 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: 12/08/2010
Proceedings: Status Report filed.
PDF:
Date: 12/06/2010
Proceedings: Subpoena ad Testificandum (Fedner Alcius) filed.
PDF:
Date: 11/22/2010
Proceedings: Subpoena ad Testificandum (Tripp Cioci) filed.
PDF:
Date: 11/16/2010
Proceedings: Order Granting Continuance and Placing Case in Abeyance (parties to advise status by December 17, 2010).
PDF:
Date: 11/15/2010
Proceedings: Subpoena ad Testificandum (Bob Baldwin) filed.
PDF:
Date: 11/15/2010
Proceedings: Subpoena ad Testificandum (Sharon Jackson) filed.
PDF:
Date: 11/15/2010
Proceedings: Subpoena ad Testificandum (Rachel Bach) filed.
PDF:
Date: 11/15/2010
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 11/15/2010
Proceedings: Agreed Motion for Order of Continuance filed.
PDF:
Date: 11/10/2010
Proceedings: Third Amended Petition for Formal Administrative Hearing (with exhibits attached) filed.
PDF:
Date: 11/10/2010
Proceedings: Pre-hearing Stipulation 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: 11/08/2010
Proceedings: Third Amended Petition for Formal Administrative Hearing filed.
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: 11/02/2010
Proceedings: Order Granting Motion.
PDF:
Date: 11/02/2010
Proceedings: Order Denying Petitions.
PDF:
Date: 11/01/2010
Proceedings: Notice of Providing Contact Information for Intervenors filed.
PDF:
Date: 11/01/2010
Proceedings: Notice of Taking Continuation Deposition (Cara Jennings) filed.
PDF:
Date: 10/29/2010
Proceedings: Petition to Intervene filed.
PDF:
Date: 10/29/2010
Proceedings: Petition to Intervene 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: 10/25/2010
Proceedings: Notice of Cancellation of Depositions 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: 10/18/2010
Proceedings: Notice of Taking Deposition (Cara Jennings) filed.
PDF:
Date: 10/14/2010
Proceedings: Notice of Taking Deposition (Bob Dennis) filed.
PDF:
Date: 10/14/2010
Proceedings: Cross Notice of Taking Deposition (Richard Post) filed.
PDF:
Date: 10/14/2010
Proceedings: Notice of Taking Deposition (Sharon Jackson) filed.
PDF:
Date: 10/14/2010
Proceedings: Notice of Taking Deposition (Fedner Alcius) filed.
PDF:
Date: 10/14/2010
Proceedings: Notice of Taking Deposition (Tripp Cioci) filed.
PDF:
Date: 10/14/2010
Proceedings: Notice of Taking Deposition (Bob Baldwin) filed.
PDF:
Date: 10/14/2010
Proceedings: Notice of Taking Deposition (Rachel Bach) 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: 10/13/2010
Proceedings: Order Denying Motion.
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: 08/23/2010
Proceedings: Status Report filed.
PDF:
Date: 06/07/2010
Proceedings: Order Canceling Hearing and Placing Case in Abeyance (parties to advise status by September 10, 2010).
PDF:
Date: 06/07/2010
Proceedings: Agreed Motion for Order of Abatement filed.
PDF:
Date: 05/28/2010
Proceedings: Motion for Reconsideration (with attachments) filed.
PDF:
Date: 05/28/2010
Proceedings: Motion for Reconsideration filed.
PDF:
Date: 05/20/2010
Proceedings: Order.
PDF:
Date: 05/18/2010
Proceedings: Notice of Appearance (of J. Middleton; filed in Case No. 10-001980GM).
PDF:
Date: 05/18/2010
Proceedings: Notice of Appearance (of J. Middleton) filed.
PDF:
Date: 05/18/2010
Proceedings: City of Lake Worth's Notice of Joinder filed.
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: 05/07/2010
Proceedings: Objection to Limiting Hearing to One (1) Issue filed.
PDF:
Date: 04/26/2010
Proceedings: Amended Response to Initial Order filed.
PDF:
Date: 04/26/2010
Proceedings: Order of Pre-hearing Instructions.
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: Response to Initial Order filed.
PDF:
Date: 04/22/2010
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 04/22/2010
Proceedings: Notice of Substitution of Counsel for Department of Community Affairs (filed by L.Thomas).
PDF:
Date: 04/16/2010
Proceedings: Initial Order.
PDF:
Date: 04/14/2010
Proceedings: Notice of Intent to Find the City of Lake Worth Comprehensive Plan Amendment in Compliance filed.
PDF:
Date: 04/14/2010
Proceedings: Respondent Department of Community Affairs` Motion to Consolidate Cases filed. (DOAH Case No. 10-1973GM and 10-1980GM)
PDF:
Date: 04/14/2010
Proceedings: Agency referral filed.
PDF:
Date: 04/14/2010
Proceedings: Request for Administrative Hearing 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

Related Florida Statute(s) (4):