11-001206GM Barbara Graves vs. City Of Pompano Beach Status: Closed Recommended Order on Wednesday, June 19, 2013.

Summary: Text and map amendments adopted by City were supported by data and analysis, and were internally consistent with other Plan provisions and statutory requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA GRAVES,

Petitioner ,

vs. Case No. 1 1 - 1206 GM

CITY OF POMPANO BEACH,

Respondent ,

and

PPI, INC.,

Intervenor .

______________________________ _ _ /

RECOMMENDED ORDER

After notice was given, this matter was heard before the

Division of A dministrative Hearings (DOAH) by its assigned

Administrative Law Judge, D . R. Alexander, on January 14 - 17,

2013, in Pompano Beach, Florida.

APPEARANCES

For Petitioner: Andrew J. Baumann, Esquire

Tara W. Duhy, Esquire

Lewis, Longman & Walker, P.A.

515 N orth Flagler Drive, Suite 1500

West Palm Beach, Florida 33401 - 4327

For Respondent: Erin Gill Robles , Esquire

Assistant City Attorney

Post Office Box 2083

P ompano Beach, Florida 33061 - 2083

For Intervenor : Kevin Markow, Esquire

Daniel De S ouza, Esquire

Becker & Poliakoff, P.A.

3111 Stirling Road

Fort Lauderdale, Florida 33312 - 6525

STATEMENT OF THE ISSUE

The issue is whether the plan amendments adopted by the

City of Pompano Beach (City ) by Ordinance No s . 2011 - 24 and 2011 -

25 on February 8, 2011, are in compl iance.

PRELIMINARY STATEMENT

On March 9, 2011, Petitioner, Barbara Graves , and three

other individuals later dismissed as parties, filed with DOAH a

Petition for Administrative Hearing challenging a Future Land

Use Element (FLUE) text amendment (Ordinance No. 2011 - 24) and a

Future Land Use Map (FLUM) amendment (Ordinance No. 2011 - 25) to

the City's Comprehensive Plan (Plan). The map amendment changes

the land use designation on 230 acres owned by Intervenor, PPI,

Inc. (PPI) , while the text amendment establi shes new development

limitations on the property . Because chapter 163 , Florida

Statutes, was substantially revised by the Legislature shortly

after the amendments were adopted , Petitioner was authorized to

file an a mended p etition to conform her allegatio ns to the new

law . The case was later transferred from Administrative Law

Judge J. Lawrence Johnston to the undersigned.

A Joint Pre - hearing Stipulation (Stipulation) was filed by

the parties . At hearing, PPI's motion to limit the introduction

of evid ence regarding matters not previously raised in the

Amended Petition was granted. Also, Petitioner's request to

file a second amended petition was denied.

Petitioner presented the testimony of Alan V. Tinter, a

professional engineer with Tinter Traffic, LLC, and accepted as

an expert; Leigh R. Kerr, a land use planner with Leigh Robinson

Kerr & Associates, Inc., and accepted as an expert; Dr. Robert

N. Pennock, a land use planner and accepted as an expert;

Joseph Quinty, Transportation Planning Manager w ith the South

Florida Regional Transportation Authority; Chris topher J.

Clemmons, City P lanner; and Jean E. Dolan, City Principal

Planner . Petitioner ' s Exhibits 1 , 4, 7, 8, 23, 25, 3 2, 37 , 38,

61 , and 68 were received in evidence. Exhibit 68 is the

depo sition of Larry Schuster, former Principal Planner for the

City. PPI pres ented the testimony of Barbara Blake Boy,

Executive Director of the Broward County Planning Council

(Planning Council) ; Richard G. Coker, Jr., an attorney and land

use planner and ac cepted as an expert; Jeffrey N. Katims, a

Senior Associate Planner with The Melgren Planning Group and

accepted as an expert; Thomas A. Hall, a transportation planner

with Thomas A. Hall, Inc., and accepted as an expert; and

Robin Bird, City Director of De velopment Services . PPI's

Exhibits 6 - 8, 13, 26, 27, and 29 were received in evidence. The

City presented no witnesses. Finally, Joint Exhibits 1 - 13 were

received in evidence.

A T ranscript of the hearing ( s even volumes) has been

prepared. P roposed f ind ings of f act and c onclusions of l aw w ere

timely filed by Petitioner and jointly by the City and PPI, an d

they have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

A . The P arties

1. Petitioner is a resident and owner of re al property

within the City . Through counsel, she submitted written and

oral comments to the City during the transmittal and adoption

hearings for the plan amendments. Petitioner is employed by the

Seminole Tribe of Florida at its casino located in Cocon ut

Creek , Broward County (County) . P PI's claim that this challenge

is rooted in gaming interests of the Seminole Tribe of Florida

appears to be a valid assumption.

2. The C ity is a municipal corporation in the County and

is responsible for adopting and m aintaining its Plan . It

adopted the amendment s pursuant to former section 163.32465 , in

effect at th at time, which codified a n adoption process known as

the Alternative State Review Pilot Program (Pilot Program) .

Under the Pilot Program, the Department o f Community Affairs

(DCA) 1 did not issue an Objections, Recommendation, or Comments

report or a notice of intent regarding compliance or non -

compliance of the plan amendments. The DCA and other reviewing

agencies did, however, issue letter s advising that they did not

object to the final version of the adopted amendments.

3 . PPI owns property in the City and is the applicant for

the ame ndments. PPI submitted comments in support of the

amendments throughout the adopti on process.

B. The Amendment Proces s in Broward County

4. Under the County Charter, land use changes to the

City's Plan that are not more restrictive than the County Land

Use Plan must be reviewed by the Planning Council to ensure that

the y are in " substantial conformity " with the County L and Use

Plan. However, t he Planning Co uncil does not review the City's

plan amendments for consistency with the City's Plan or chapter

163. After the County's review was completed, the DCA

recommended that certain changes be made. The amendments were

tr ansmitted back to the City and were amended to conform to the

DCA's recommendations. The amendments were then required to

undergo the same review process a second time. Although a

determination was made by the Planning Co uncil that the initial

amendments were in substantial conformity with the County Land

Use Plan, the revised amendments cannot be recertified for

consistency until this challenge has been concluded.

5. I f plan amendments are in substantial conformity with

its Land Use Plan, t he County mus t amend its Plan to incorporate

the City's changes. B ased upon a favorable recommendation by

the Planning Council, on September 28, 2010, the County adopted

companion amendments, although not identical to the City's

revised amendments. Those amendments a re the subject of a

pending challenge by the same petitioner in Case No. 10 - 9939GM

and have not yet become effective . A hearing in that case is

now scheduled in September 2013. Until t hat challenge is

resolved , the City amendments cannot become effective .

C. The Property

6 . PPI owns approximately 230 acres of property within the

City. The property is bounded on the north by Racetrack Road,

by North Cypress Bend Drive to the south, by Powerline Road to

the west, and the CSX railroad tracks to the east . The current

land use designation on 160 acres is Commercial Recreation (CR),

while the remaining 70 acres ha s a Regional Activity Center

(RAC) designation. The 70 acres makes up the southern part of a

pre - existing RAC known as the Arvida Pompano Park R egional

Activity Center (Arvida RAC) , whose boundaries are coextensive

with a Development of Regional Impact approved in the 1980s, but

which expired in 2004 . Except for the 70 acres owned by PPI,

the Arvida RAC is fully developed. The CR property lies j ust to

the south of the Arvida RAC and forms the southern boundary of

that development.

7. The 160 acres is now occupied by the Pompano Park

Harness Track, Isle of Capri Casino, surface parking lots,

various commercial uses, horse stables, a training ar ea, and

other uses associated with the harness track and casino.

8 . The 160 acres is the only property in the City

designated as CR. That designation allows a n extremely wide

range of permitted uses: outdoor and indoor recreation

facilities such as a c tive recreation complexes, marinas,

stadiums, jai - alai frontons, bowling alleys, golf courses, and

dog and horse racing facilities; accessory facilities, including

outdoor and indoor recreation facilities that support the

primary recreation facility; hotel s, motels, time shares, and

similar lodging ancillary to the primary commercial recreation

uses; and other active and passive recreation uses. The site

was once considered for a new baseball stadium for the Florida

Marlins and a hockey arena for the Flori da Panthers.

9. The CR property can have more than one primary use.

For example, besides the harness track, the casino is an "indoor

recreation facility" and qual ifies as a second primary use. If

a hotel has resort and destination features that are op en to the

public, the amenities can become a primary use. Under the

City's interpretation of CR land, a hotel containing a

destination function with resort and recreation features is also

a primary use. Ancillary facilities for each of these uses is

also allowed.

10 . The City is already 95 percent built - out, and it

considers PPI's property to be regionally significant, under

developed, and ripe for redevelopment as a major attraction .

For th ese reason s , it supports the designation of the property

as a n ew RAC.

1 1 . PPI filed the application because it desires greater

flexibility in planning for the future development of the

property. If the a mendments become effective, PPI intends to

expand the existing casino and build a large resort hotel,

various co mmercial and residential uses, and other amenities

associated with those activities.

D. The Amendments

1 2 . In December 2009 , PPI submitted an application to

the City to reduce the existing Arvida RAC by removing PPI's

70 acres south of Racetrack R oad ; elim inat e the development

intensity assigned to those 70 acres ; and combine the 70 acres

removed from the Arvida RAC with its 160 acres of CR property to

create a new South RAC. PPI also propose d to transfer credit

for the remaining undeveloped porti on of the Arvida RAC to the

new South RAC.

13. After the local review process was completed , t he plan

amendments were transmitted to the DCA, which issued a letter of

comment recommending that the amendments be revised to identify

the maximum amount of development (i.e., square footage) that

would be allowed in each non - residential use , including CR,

commercial, and office . Based on the DCA's comments, the

application was modified by PPI to include floor area ratios

( F ARs ) for each non - residential use , and in October 2010 the

revised amendments were approved by the City on first reading .

The DCA reviewed the revised amendments and had no objections.

In February 2011, the revised amendments were adopted on second

reading. P etitioner then timely filed h er challenge.

1 4 . The map amendment (Ordinance No. 2011 - 25) changes the

land use designation on the CR property to RAC. It consolidate s

the 70 - acre parcel with the 160 - acre parcel to create a unified

RAC designation. The amendment does not change the bo undary or

designation of uses within the existing Arvida RAC. The amended

FLUM now shows only a single RAC, with different intensity and

density standards assigned to the North and South RACs in the

text amendment. 2

1 5 . The text amendment to the FLUE ( Ordinance No. 2011 - 24)

affects a total of 399 acres of land , which covers both the

existing Arvida RAC and the 160 acres of CR property south of

Racetrack Road. It amends the listed uses for the Arvida RAC

and names the uses for the new South RAC.

1 6 . Th e amendments permit a mixed use complex on PPI's

property with a combination of 135 acres of CR (rather than

160 acres), 27 acres of commercial uses, 26 acres of office

uses, and 43 acres of residential usage, consisting of 1,050

mid - rise apartments and 250 garden apartments, or a total of

1,300 residential units. The only new use introduced by either

amendment is the 1,300 residential units.

1 7 . The maximum intensity on the CR property is not

defined in the text of the Plan. However, FLUE policy 01. 07.20

allows development on the 160 acres to a maximum intensity of

105 feet in height with 50 percent floor area coverage. This

equates to an effective FAR of 5.0. All parties agree that a

5.0 FAR is unrealistic, and PPI never considered using that

leve l of development. For this reason, the text amendment

reduces the CR intensity to 0.31, which represents a far more

reasonable and realistic development limitation. The amendment

limits the maximum development within the South RAC to the

following maximu m FARs: 0.31 for commercial recreation use;

0.84 for office use; and 0.65 for commercial use. To the extent

any portion of the 160 acres is re - designated as commercial or

office, the amendment limits the maximum potential development

on that acreage.

E . Petitioner's Objections

1 8 . Petitioner's objections, broadly defined, are that the

amendments are not in compliance because (a) the y are not based

on relevant and appropriate data and analysis regarding

transportation impacts ; (b) the y are internally i nconsistent

with four polic ies in the F LUE, one objective and two policies

in the Transportation Element ( TE ) , one policy in the Capital

Improvement Element (CIE), and three policies in the Housing

Element (HE); and (c) the y are not supported by appropriat e data

and analysis regarding affordable housing.

a. Data and Analysis -- Transportation

19 . Section 163.3177(1)(f) requires that p lan amendments

be based on "relevant and appropriate data and analysis by the

local government that may include, but not be limited to,

surveys, studies, community goals and vision, and other data

available at the time of adoption of the comprehensive plan or

plan amendment." In addition, "the future land use plan and

plan amendments shall be based upon surveys, studies, a nd data

regarding the area, as applicable, including: . . . [t] he

availability of water supplies, public facilities and services."

§ 163.3177(6)(a) 2. d. , Fla. Stat. FLUM am endments must be based

on an "analysis of the availability of facilities and servic es."

§ 163.3177(6)(a)8.a., Fla. Stat. Finally, "[w]here data is

relevant to several elements, consistent data shall be used."

§ 163.3177(2), Fla. Stat.

2 0 . Relying on the foregoing statutory requirements,

Petitioner contends that the data and analysi s regarding

transportation impacts are inconsistent with the data and

analysis supporting the TE and CIE ; the various data and

analysis supporting the amendments are not accurate and

professionally acceptable because they underestimate impacts to

transport ation facilities by overstating the maximum development

intensity of the property under the existing CR land use

designation and do not identify the true impact of the

amendments; and the City did not react appropriately to the data

and analysis demonstrat ing serious impacts to already failing

roadways in the area.

2 1 . In broad terms, a traffic impact analysis identifies

the potential traffic impacts of the plan amendments on the

transportation system. In their analyses, the parties used very

different assumptions as to the maximum development intensity

under the existing land use designations on the PPI property.

Each analysis compares the traffic generated at the maximum

intensity permitted under the existing land uses to the traffic

generated by the maximum density/intensity under the plan

amendments.

2 2 . The City does not require that a particular

methodology or set of assumption s be used in performing an

analysis. This is because the methodologies and assumptions

used in a traffic impact study may differ , and they are grounded

in part o n the expert's sound judgment, experience, and

discretion.

2 3 . PPI submitted two traffic impact analyses, one in

March 2010 and the second in October 2010 . Because the City

disagreed with PPI's pre - amendment assu mptions in the first

analysis and assumed a smaller development under the existing

land uses, it recommended that an independent traffic engineer

be hired to conduct a second analysis and verify the

transportation impacts. Due to a lack of resources, the City

does not conduct its own traffic analysis ; instead , it typically

defers to the traffic analysis conducted by the Planning Council

or , in some cases, it may hire its own consultant.

2 4 . PPI's second analysis assumed a different mix of pre -

amendment CR uses . Also, i t used the County Metropolitan

Planning Organization's (MPO's) latest model (the Florida

Standard Urban Transportation Model Structure, a/k/a FSUT M S) for

traffic distribution , which was not available until after the

first analysis had been c ompleted.

2 5 . The second analysis assumed that under existing land

uses the 160 acres could be developed with a 15,000 seat

racetrack (instead of a 5,625 seat facility) ; a 125,000 square -

foot casino ; a 400,000 square - foot amusement center ; a 2,333

room hotel ; 350,000 square feet of accessory retail ; and a new

100,000 square - foot theme park . The analysis sought to

represent the existing condition of the property as reflecting a

reasonable amount of development which could actually be built

on the proper ty. While these assumed uses dramatically expand

the existing development on the parcel, each is permitted under

the CR category , and the intensities are substantially lower

than those allowed under the FLUE l imitations .

2 6 . The assumed pre - amendment d evelopment was compared

with a n assumed post - development condition of a 11,591 seat

racetrack ; a 96,561 square - foot casino ; a 309,091 square - foot

amusement center ; a 1,750 room hotel ; 270,455 square feet of

accessory retail ; and a 77,273 square - foot theme park . Thus,

PPI 's post - amendment assumptions represented a reduction in the

pre - development conditions.

2 7 . The October study concluded that the plan amendments

would generate 6,578 net new daily trips and 568 net new total

afternoon peak - hour trips (i.e ., trips during rush hour) . It

further concluded that a number of roadway segments would

continue to operate at unacceptable Level of Service ( LOS ) F in

the future no matter whether the amendments were approved or

not . Notably, only State and County road ways were impacted, and

th os e impacts have been further evaluate d by the Planning

Council through its own traffic impact study.

2 8 . To mitigate these impacts, the revised study

identified various improvements or modifications to the three

affected segment s, Racetrack Road east of Powerline Road,

Racetrack Road east of Southwest 23rd Avenue, and Powerline Road

north of McNab Road. These modifications were accepted as

adequate mitigation by the City . Although Petitioner questioned

whether the proposed miti gation could be enforced without being

incorporated into the Plan, the City take s the position that

PPI's representations are enforceable. If additional mitigation

is required, PPI has agreed that this can be provided during the

permit stage.

29 . After r eceiving PPI's second impact analysis, the City

noted that it was "more detailed" than the City's abbreviated

analysis performed after PPI's first study ; i t agreed with PPI's

use of FARs for each land use category (as recommended by the

DCA) to determine t he maximum development that could occur ; i t

agreed that the accepted analysis "shows a lower net increase in

the demand for public facilities and services than the City's

analysis" ; and i t concluded that "the project can meet all

applicable concurrency req uirements."

3 0 . By then, t he City was also aware that the County had

adopted PPI's companion amendments, and the Planning Co uncil ,

with the MPO's technical assistance , had made its own eval uation

of traffic impacts before amending its own Plan .

31. T he Planning Co uncil use d a different methodology to

analyze traffic impacts for CR land use amendments . Unlike PPI,

the Planning Council's analysis did not assume the maximum

development potential in either the before or after condition.

Rather , it conve rted the acreage of uses in the before and after

conditions by assuming a development potential of 10,000 square

feet per acre for all non - residential uses, which equals a 0.23

FAR. It also assumed that the only new use would be the

addition of 1,300 new residential units.

32. The Planning Co uncil analysis concluded that the

amendments would add 305 afternoon peak - hour trips to the

regional roadway network, or fewer than that found in PPI's

study. The County further concluded that the net increase in

t rips would not significantly impact the two major roadways in

the area, Powerline Road and Atlantic Boulevard, and that the y

would continue to operate at LOS F even if the amendments were

not approved. Under current Planning Council review standards,

any impact that is less than three percent of the capacity of a

roadway is considered insignificant. The re were no impacts that

exceeded this threshold. The Planning Council 's traffic impact

analysis and supporting data are a part of the data and analysis

su pporting the City's amendments.

3 3 . Petitioner contends that PPI's second traffic study is

flawed in several respects. One c oncern is that the assumptions

made by PPI in determining the pre - and post - amendment

conditions on its property "significantly ov erestimate the

development in the pre - approval condition," and therefore

"grossly underestimate the net increase in traffic." Using

different assumptions, Petitioner's expert prepared his own

traffic impact analysis which substantially reduces the pre -

ame ndment maximum development on the property. In all,

Petitioner's expert prepared 11 different scenarios, some

showing no impacts at all, but he eventually decided to use the

tenth version , which is probably the most favorable to his

position.

3 4 . The per mitted uses under the City's CR category are

extremely broad and mimic the permitted uses under the "very,

very broad" CR category in the County's Plan . Petitioner 's

expert opined that because the CR land use is so " ill - defined ,"

the "best indicator" of w hat could be built in the before

condition "appeared to be the plat." A plat is a development

permit approved by , and recorded with, the County. It normally

reflects what a property owner intends to build on his property

at the time the plat is approved or in the very near future.

The County then uses the plat to determine the amount of impact

fees to be paid by the owner. Because it can be amended at any

time, usually when a land use amendment is being processed or

when more development is contemplated , a plat is not used to

determine the maximum potential development capacity on a

parcel. Notably, PPI could easily file an application for

approval of a new plat on the CR land s howing exactly what it

assumed in pre - amendment conditions . The existing pl ats

themselves were not made a part of the record.

3 5 . By using recorded plats for his entire analysis,

including the CR land, which he admitted was "a little unusual,"

Petitioner's expert significantly reduce d the amount of

development in a pre - amendment condition , increase d the

difference between pre - and post - amendment traffic, and create d

more post - amendment traffic impacts on the road network.

However, this assumption is contrary to the plats' intended use ,

it does not represent a parcel's true devel opment potential, and

at best it produces results that are no more reasonable than the

results presented by PPI.

3 6 . The City's Future Conditions Analysis (FCA) makes up a

part of the narrative portion of the TE and forecasts future

travel demands, land use growth, and traffic operations within

the City. The FCA was "developed to be consistent with the MPO

travel demand process and incorporates the [MPO's] analysis,

findings and recommendations as appropriate for the City." Jt.

Ex. 1, TE, p. 60. Petit ioner contends that PPI failed to

coordinate with the MPO data and analysis (specifically the LOS

standards and traffic volumes), incorporated by reference in to

the TE, when it prepared its pre - amendment conditions. Thus,

she argues that the amendments ar e inconsistent with the data

and analysis supporting the TE (and by implication the CIE) , and

it results in far more traffic in the existing condition than

the MPO model assumes. See § 163.3177(2), Fla. Stat.

3 7 . The Planning Council traffic impact stu dy is a part of

the data and analys is supporting the City amendments. In

performing their pre - amendment analyses, b oth the Planning

Council and MPO reviewed the same MPO "analysis, findings, and

recommendations" that are incorporated by reference into the

City's Plan . Notably, t he Planning Co uncil's analysis concluded

that the additional traffic generated by the difference between

the assumed pre - and post - amendment conditions would not cause

significant impacts on the regional transportation network.

3 8 . Testimony presented by the City and PPI established

that all relevant portions of the City Plan were reviewed for

consistency, and unless a provision was found to have some

significance, no reference to that provision was made in the

traffic impact ana lysis , application, or staff report . Even if

PPI's traffic impact study does not overtly state that PPI

coordinated with the MPO data and analysis before making its

pre - amendment assumptions, the Planning Council data and

analysis are sufficient to show t hat the required review and

coordination w ere made. T he City reacted appropriately to the

data.

3 9 . Petitioner's expert also leveled criticisms regarding

the follow ing aspects of PPI's traffic impact study: the level

of internal trip capture; by - pass capture; and pedestrian access

internal to the site, i.e., walking to a site. Petitioner did

not prove that the assumptions supporting those aspects of the

study were unreasonable.

40 . Petitioner has failed to establish beyond fair debate

that the plan a mendments are not supported by relevant and

appropriate data and analysis regarding transportation impacts,

or that they are inconsistent with other data and analysis

supporting the Plan .

b . Affordable Housing

4 1 . Petitioner contends that affordable hous ing was not

addressed by PPI or the City, and PPI failed to provide any data

and analysis with regard to various affordable housing

requirements in the City's Plan . Given th ese omission s , s he

c ontends that the City did not react appropriately by approving

the amendments.

4 2 . The application contains a section relating to

affordable housing . While PPI refer red to HE policies 05.03.02,

05.08.02, and 05.08.05 and County Land Use Plan policy 1.07.07 ,

no explanation was given as to how the amendments conform to

the se provisions.

4 3 . P olicy 1.07.07 provides a number of ways to meet the

affordable housing policies, methods, or programs to achieve

and/or maintain a sufficient supply of affordable housing. One

option is that when a plan amendment adds more than 100

residential dwelling units, an applicant must agree to either

provide 15 percent of the proposed residential units in the

project for affordable housing or make a contribution of $750.00

per residential unit , to be paid to the local government when

bui lding permits are issued . To comply with this requirement ,

an applicant must provide the County a declaration of

restrictive covenants.

4 4 . As explained at hearing, r ather than undertaking a

detailed analysis of its HE policies when reviewing land use

amendments , t he City routinely follow s t he dictates of policy

1.07.07 and allows an applicant to "buy out" its affordable

housing obligation. It then uses the money for one of the

City's housing programs, either to subsidize the demand side, or

the existi ng supply of affordable housing. The City already has

an ample supply of affordable housing, and it prefer s that

developers buy out their obligations since the cash can be used

more effectively to achieve HE goals, objectives, and policies.

This process was followed here, and the City allowed PPI to

" buy - out [ its obligation] at $750.00 x 100 percent of the

units." In doing so, it relied on PPI's declaration of

restricted covenant s provided to the County , the fact that an

in - lieu fee would best meet its a ffordable housing needs, and

its expectation that the money would then be used to support one

of its housing program s .

4 5 . This information (data) was available to the City and

was in existence at the time the amendments were adopted, it was

presented a t final hearing, and it is sufficient to support the

amendments. See § 163.3177(1)(f), Fla. Stat.

46. Petitioner failed to establish beyond fair debate that

the plan amendments are not supported by adequate data and

analysis regarding affordable housin g or that the City did not

react appropriately to that data .

c. Internal Inconsistency

4 7 . Section 163.3177(2) requires that the "elements of the

comprehensive plan shall be consistent." Petitioner contends

that the amendments are inconsistent with fo ur FLUE policies ;

one TE objective and two TE policies; one CIE policy; and three

HE policies. P etitioner also argues that the amendments are

inconsistent with FLUE section 3.02K, which establishes criteria

that must be met in order for a property to qual ify for a RAC

designation.

4 8 . Among other criteria , FLUE subsection 3.02 K.4 requires

that a RAC "provide direct access to existing or proposed

airports, ports, and rail mass transportation facilities."

4 9 . It is undisputed that the property is bounded on its

east side by the CSX railroad tracks . The South Florida

Regional Transportation Authority (RTA) uses those tracks to

operate a rail mass transportation facility known as Tri - Rail

between Palm Beach and Dade Counties . T hrough its Board of

Director s, the RTA has established station stops at various

points on its route; there is , however, no station stop adjacent

to PPI's property.

50 . Because the property sits adjacent to the railroad

tracks, it is eligible to be considered for a station stop. A t

any time, but logically after this challenge is concluded and

development begins , PPI and the City can submit a formal joint

proposal for a station stop. Also, PPI can offer inducements to

the RTA, such as dedicating land for a station stop and

assistin g in its funding. In addition, t he RTA currently

provides a shuttle service , which can easily transport PPI

patrons to the station stop.

51 . The se considerations support a finding that the

property has "direct acces s " to the Tri - Rail , as contemplated b y

the FLUE. Petitioner contends , however, that in order to have

direct access, PPI must have a binding commitment from the RTA

to build a station stop before the amendment is approved. T his

narrow interpretation has been rejected as not being as or more

reasonable than the City's interpretation of its Plan .

5 2 . Petitioner next contends that the amendments are

internally inconsistent with HE policies 05.01.05, 05.03.02, and

05.08.01 . In general terms, t he first policy requires that the

City promote affor dable housing; the second requires that the

City support public and private sector efforts to create and

preserve affordable housing for very - low, low, and moderate -

income groups in areas designated for residential land use for

future and current residents ; and the third policy requires the

City to "consider the ability of the proposal to provide

affordable housing" and allows restrictive covenants to be used

as a tool to meet those needs.

5 3 . PPI's execution of a restrictive covenant to buy out

its obli gation for affordable housing , and the City's use of

those funds to provide affordable housing in the manner as it

sees fit , are sufficient to achieve consistency with the

requirements that the City promote and support affordable

housing, and that it allow restrictive covenants to be used as a

tool to meet those needs.

5 4 . Petitioner also contends that the amendments are

internally inconsistent with CIE policy 13.03.02, which requires

that the City provide infrastructure necessary to maintain the

LOS sta ndards concurrent with the impact of development.

5 5 . The traffic impact analys es performed by PPI and the

Planning Council demonstrate that the amendments will not

significantly impact the regional transportation network. To

the extent any adverse imp acts may occur, PPI has agreed to

mitigate those impacts.

5 6 . Petitioner contends that the amendments conflict with

TE objective 02.02.00 and policies 02.02.05 and 02.07.02. The

objective requires that the City coordinate the transportation

system with the uses shown on the FLUM to ensure that adequate

transportation services are provided. The first policy requires

that the City continue supporting a system that allows

development to occur in concurrence with the FLUM and consistent

with the established LOS standards. The second policy requires

that the City review future land use amendments in concert with

maintenance of the adopted LOS standards.

5 7 . For the reasons previously found, the plan amendments

are not internally inconsistent with the obje ctive or policies.

5 8 . Finally, Petitioner contends that the amendments are

internally inconsistent with FLUE policies 01.01.01, 01.01.02,

01.01.03, and 01.01.05. These policies require that the City

adopt and maintain services based on LOS standards; re view all

proposals for development using the adopted LOS standards; phase

development concurrent with the availability of infrastructure;

and r eview proposals for new development to identify the

cumulative impacts of the development on public services and

facilities.

5 9 . For the reasons previously stated, the p lan amendments

do not conflict with these policies.

60 . Petitioner failed to prove beyond fair debate that the

plan amendments are internally inconsistent with objectives or

policies in the FLUE, H E, CIE, and TE.

CONCLUSIONS OF LAW

61 . To have standing to challenge or support a

comprehensive plan amendment, a person must be an "affected

person," which is defined as a person owning property, residing,

or owning or operating a business within the bo undaries of the

local government, and who made timely comments to the local

government regarding the amendment. See § 163.3184(1) (a), Fla.

Stat. Petitioner and PPI have standing as affected persons.

6 2 . A person challenging a plan amendment must show that

it is not "in compliance" as that term is defined in section

163.3184(1)(b).

6 3 . A compliance determination is not a determination of

whether a plan amendment is the best approach available to the

local government for achieving its purposes.

6 4 . As the challenger, Petitioner has the burden of proof.

The plan amendments being challenged "shall be determined to be

in compliance if the local government's determination of

compliance is fairly debatable." § 163.3184(5)(c)1., Fla. Stat.

6 5 . The term "fairly debatable" is not defined in chapter

163. However, the Supreme Court has held t hat "if reasonable

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

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

1997). Or, as anoth er appellate court stated, where there is

"evidence in support of both sides of a comprehensive plan

amendment, it is difficult to determine that the [local

government's] decision was anything but 'fairly debatable.'"

Martin C nty. v. Section 28 P 'ship , Lt d. , 772 So. 2d 616, 621

(Fla. 4th DCA 2000).

6 6 . The standard of proof to establish a finding of fact

is preponderance of the evidence. See § 120.57(1)(j), Fla.

Stat.

6 7 . Section 163.3177( 1 ) (f) requires that all plan

amendments be based on relevant and appropriate data and an

analysis by the local government. The statute explains that to

be based on data "means to react to it in an appropriate way and

to the extent necessary indicated by the data available on that

particular subject at the time of the a doption of the . . . plan

amendments at issue." The question of whether one methodology

used in data collection is better than another cannot be

evaluated. Id.

6 8 . Petitioner failed to prove beyond fair debate that the

plan amendments are not based on relevant and appropriate data

and an analysis by the City.

6 9 . Section 163.3177(2) requires that "[w]here data is

relevant to several elements, consistent data shall be used."

70 . Petitioner failed to prove beyond fair debate that the

data used by the Ci ty to support the plan amendments are

inconsistent with data supporting other elements of the Plan.

71 . Section 163.3177(2) requires the elements of a

comprehensive plan to be internally consistent. A plan

amendment creates an internal inconsistency when it conflicts

with an existing provision of the plan.

7 2 . Petitioner failed to prove beyond fair debate that the

plan amendments are inconsistent with any goal, objective, or

policy of the City Plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Economic Opportunity

enter a Final Order determining that the Plan Amendment s adopted

by Ordinance Nos. 2011 - 24 and 2011 - 25 are in compliance.

DONE AND ENTERED this 19th day of June , 20 1 3 , 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 19th day of June , 2013 .

ENDNOTE S

1 Most of the powers, duties, and functions of the DCA, including

the state land planning agency powers and duties at issue in this

case, were tra nsferred to the Department of Economic Opportunity

on October 1, 2011.

2 Petitioner contends that the two amendments are internally

inconsistent with one another because the map amendment depicts a

single RAC, while the text amendment creates two separ ate RACs,

with distinct land uses and boundaries. The inconsistency, if

any, is considered de minim is .

COPIES FURNISHED:

Jesse Panuccio , Executive Director

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399 - 4128

Robe rt N. Sechen , General Counsel

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399 - 4128

Andrew J. Baumann, Esquire

Lewis, Longman & Walker, P.A.

515 North Flagler Avenue, Suite 1500

West Palm Beach, Florida 33401 - 4327

E rin Gill Robles, E squire

Assistant City Attorney

Post Office Box 2083

Pompano Beach, Florida 33061 - 2083

Kevin Markow , Esquire

Becker and Poliakoff, P.A.

3111 Stirling Road

Fort Lauderdale, Florida 33312 - 6566

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All p arties 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.