14-001026GM Pieter Bakker And Shirley Bakker vs. The Town Of Surfside Status: Closed Recommended Order on Tuesday, June 17, 2014.

Summary: Petitioners failed to demonstrate beyond fair debate that plan amendments allowing a religious institution on adjacent property were not in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PIETER BAKKER AND SHIRLEY

BAKKER,

Petitioners,

vs. Case No. 14 - 1026GM

THE TOWN OF SURFSIDE,

Respondent.

_______________________________/

RECOMMENDED ORDER

D. R. Alexander, Admin istrative Law Judge of the Division

of Administrative Hearings (DOAH ), conducted the final hearing

on April 17, 2014, in Surfside, Florida.

APPEARANCES

For Petitioner s: Andrew M. Tobin, Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier, Florida 33070 - 0620

Michael W. Morell, Esquire

Post Office Box 221861

Hollywood, Florida 33022 - 1861

For Responden t: Nancy E. Stroud, Esquire

Lewis, Stroud and Deutsch, P.L.

Suite 251

1900 Glades Road

Boca Raton , Florida 33431 - 8548

Linda H. Miller, E squire

Town Attorney

9293 Harding Avenue

Surfside, Florida 33154 - 3009

STATEMENT OF THE ISSUE

The issue is whether Future Land Use E lement (FLUE) Policy

10.6 and Map FLU - 8 adopted by the Town of Surfside (Town) by

Ordinance No. 14 - 1613 on February 11, 2014, are in compliance.

PRELIMINARY STATEMENT

On March 7, 2014, Petitioner s filed with DOAH a Petition

for Formal Administrative Hear ing (Petition) to challeng e a new

FLUE policy and map change adopted by the Town . On March 17,

2014, t he Town filed a Notice of Demand for Expedited Proceeding

p ursuant to s ection 163.3184(7), Florida Statutes (2013) , and a

final hearing was scheduled wit hin 30 days. Petitioners'

request to amend their Petition was granted in part at the

outset of the hearing .

A t the final hearing, Pieter Bakker , who owns property ,

operates a business, and resides in the Town, testified on his

own behalf and presented the testimony of Sarah Sinatra Gould,

Town Planner and a professional planner with Calvin, Giordano

& Associates, Inc. Petitioners Ó Exhibits 1 , 14, 33, 43, 55, 58,

74, 77, and 79 - 83 were received in evidence . Exhibit 52 was

accepted on a proffer basis onl y . The Town presented the

testimony of Sarah Sinatra Gould, who was accepted as an expert.

Town Exhibits A , H , N , O , and Q - S were admitted into evidence.

The parties' Joint Exhibits 1 - 6 and 8 - 13 were also received.

Joseph Graubart, a former Town Commis sioner, testified as a

member of the public pursuant to section 120.57(1)(b) . Finally,

subject to a relevancy objection by the Town , Petitioners'

request for official recognition of the following documents was

granted: the complaint and motion to dismiss in the case of

Young Israel of Bal Harbour, Inc. v. Town of Surfside , Case

No. 10 - CV - 24392 - JEM (S.D. Fla.); and the amended petition for

writ of certiorari and de novo complaint and appendix filed in

the pending case of Bakker v. Town of Surfside and Yo ung Israel

of Bal Harbour, Inc. , Case No. 1 3 - 366 APP (App. Div., 11th Cir.

Fla.) . 1

A two - volume T ranscript of the hearing has been prepared .

P roposed f indings of f act and c onclusions of l aw w ere filed by

the parties, an d they have been considered in the p reparation of

this Recommended Order.

FINDINGS OF FACT

A . The P arties

1. The Town is a small municipality located in Miami - Dade

County just north of the City of Miami Beach and south of the

Village of Bal Harbour . The Town's most recent comprehensive

plan (Plan) was adopted in January 2010 and was found to be in

compliance by the Department of Community Affairs.

2. Petitioners own at least two single - family homes and

operate a business within the Town and submitted oral comments

in opposition to th e amendments at the transmittal and adoption

hearings. Since 1988, t h eir principal residence has been Lot

10, Block 7 of Altos Del Mar No. 6 Subdivision , otherwise

identified as 9572 Abbott Avenue . Th e property is designated on

the Future Land Use Map as Low Density Residential and zoned

H30B , a single - family residential zone.

B. Background

3 . A long and unusual history precedes the adoption of the

c hallenged amendments . A short explanation is that t hey were

adopted as a result of the Town's experience prior to 2006 as a

defendant in a federal case based on the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA), codified as 42

U.S.C. § 2000 et seq. RLUIPA protects individuals and religious

institutions from discriminatory and unduly burdensome land use

regulations. This means that the Town cannot impose or

implement a land use regulation in a manner that imposes a

"substantial burden" on the religious exercise of a person,

religious assembly, or institution unless it can demonstrate

that imposition of the burden is in furtherance of a compelling

governmental interest and is the least restrictive means of

furthering that interest.

4. Even though Mr. Bakker stated that he does not object

to having a religious building on the property adjacent to his

home , he has pressed forward with a compliance challenge. It is

fair to say that his principal grievance is a site plan approved

by the Town pursuant to a settlement agreement with a religious

organization that allows the construction of a large, two - story

structure with an underground parking garage just 7.5 feet from

his property line . He contends that in order to settle a R L UIPA

lawsuit, the Town approved a site plan that varies from numerous

development standards. However, t he validi ty of the site plan

is the subject of pending litigation in circuit court and cannot

be resolved in this proceeding .

5 . In 1999, the Town permitted churches and synagogues in

only one of the Town's eight zoning districts, the RD - 1 two -

family residential district. Religious assembly uses were

prohibited in the other seven zoning districts, even though

secular places of public assembly were allowed. Young Israel of

Bal Harbour, Inc. (Young Israel) and Midrash Sephardi, Inc., two

small Orthodox Jewish syn agogues serving the immediate area in

and around the Town , were leasing space in the Town's business

district despite the zoning code limiting synagogues to the RD - 1

district. In addition to retail and service businesses, the

business district allowed var ious other secular places of public

assembly above the first floor, but not churches and synagogues.

The two synagogues challenged the land use restrictions,

claiming that the exclusion from the business district violated

both the substantial burden and e qual treatment provisions of

RLUIPA. Eventually, the court declined to find that the

restrictions imposed a substantial burden on the synagogues'

religious exercise. The court did find, however, that the

zoning code violated RLUIPA's equal treatment prov ision because

it excluded religious assemblies from the Town's business

district while allowing private clubs and other secular

assemblies in the district, provided they were located above the

first floor. See Midrash Sephardi, Inc. v. Town of Surfside ,

3 66 F.3d 1214, 1231 (11th Cir. 2004).

6 . As a result of the lawsuit, t he Town identified a need

for an ordinance with protections for places of public assembly

and religious institutions . In 2006, it began the task of

amending its zoning code for that p urpose. The Town considered

the percentage of area within the Town which should allow places

of public assembly . It also considered religious institutions

within the Town that were intending to locate or expand a

religious building. Because Young Israel owned several lots and

was planning to develop its property for a synagogue, the

property was included in the RLUIPA map ultimately adopted .

7 . At the same time the map was being created, the Town

was conducting a study of transportation corridors. Ba sed upon

that study, the Town con cluded that r eligious uses should be

located along the major transportation corridors.

8 . W ith the aid of various consultants, including

architects, planners, and engineers, in 2006 the Town began

conducting a so - called vi sioning program, including multiple

charrette sessions held with the public. This program produced

a report in April 2007 entitled "Steps Forward Post Charrette

Booklet," which contained conclusions and recommendations.

9 . A primary issue addressed in the report is the

treatment of single - family zoning on major corridors in the

Town, and the need for transition from the higher intensity area

of the downtown to the adjacent single - family areas. One

solution discussed in the report was to allow mixed use ,

live/work structures along the Abbott Avenue corridor between

95th and 96th Streets, which includes the Young Israel and

Bakkers' properties. The report also discussed the possibility

of allowing more intensity in the row of single - family lots west

of H arding Avenue between 93rd and 94th Streets, which area is

now included on the FLU - 8 and RLUIPA maps. The report

identifies the Young Israel lots as appropriate to be included

in the retail core of the Town's business district. These

higher intensity are as are shown in the Illustrative Master Plan

of the report.

10 . On April 26, 2007, the report was considered by the

Town 's local planning agency, the Planning and Zoning Board

(PZB) . The PZB recommend ed approval of certain a mendments to

the zoning code that would create locational requirements for

places of public assembly . Although Petitioners contend that

the PZB failed to follow all procedural requirements in adopting

its recommendation , the undersigned has no authority to

adjudicate that issue. Pe titioners also contend that because of

these procedural irregularities, the data relied upon by the

PZB , and later the Town , in crafting the zoning amendments are

likewise tainted and cannot be used to support the plan

amendments being challenged here. Th at argument is rejected.

1 1 . On June 12, 2007, the Town adopted Ordinance No. 2007 -

1479 (the first RLUIPA map) , which accepted the Charette Booklet

by Resolution and amended the zoning code by defining a place of

public assembly and creating an overl a y m ap that allowed places

of public assembly to be located in certain areas of the Town.

No changes to the Plan were made.

1 2 . The area depicted on the overlay map included the

vacant lots located between Abbott Avenue and Byron Avenue and

south of 96th Str eet . Like Petitioners' property, all of the

lots have residential zon ing , and they are designated Low

Density Residential. When Petitioners moved into their home in

1988, the lots were vacant and used as a parking lot by a nearby

bank. After a series of sales over the years , the vacant lots

w ere eventually purchased by Young Israel. (Mr. Bakker

attempted to purchase the lots but was unsuccessful.)

1 3 . On January 13, 2009, the Town adopted a second RLUIPA

ordinance to avoid other RLUIPA litigation. O rdinance 2009 - 1510

created section 90 - 99 in the zoning code, entitled Religious

Land Use Relief Procedures. That section creates discretionary

application and approval processes which authorize the Town to

consider and act on requests for reasonable relie f. It also

created three standards that an applicant is required to meet in

order to obtain relief.

1 4 . In 2010, the Town amended its Plan as part of the

Evaluation and Appraisal Report update . Places of public

assembly were shown as permitted uses in only three of the five

residential land use districts: Moderate Low Density

Residential, Moderate High Density Residential, and High Density

Residential/ T ourist. They were not allowed in the Low Density

Residential category .

1 5 . The 2010 FLUE containe d the following Goals,

Objectives, and Policies , which Petitioners describe as

protecting the sanctity of single - family homes and which they

assert conflict in part with the new amendments:

Goal l: Ensure that the character and

location of future land use s provides high

economic and quality of life benefits to the

Town's residents and business people while

preserving the Town's natural resources,

residential character and appropriate levels

of public services.

Objective 1 - Coordination of land uses with

topography and soils: Maintain existing

development and achieve new development and

redevelopment which is consistent with the

goal above and which otherwise coordinates

future land uses with the appropriate

topography and soil conditions and the

availabi lity of facilities and services.

This objective shall be measured by

implementation of its supporting policies.

Policy l.l - The Town shall maintain,

improve and strictly enforce provisions

which are consistent with the Future Land

Use Map, including the land uses and

densities and intensities specified thereon

and including the following:

Low Density Residential: up to 8 dwelling

units per acre and not more than 30 feet in

height. Permitted uses are single family

residential use and parks and open spac e.

* * *

Policy l.ll - The Town shall maintain zoning

code standards for new development and/or

redevelopment that meet high standards for

open space, landscaping, on - site

circulation, parking and other performance

standards.

* * *

Objective 2 - Pro tection of single family

residential areas: Direct future growth and

development so as to minimize the intrusion

of incompatible land uses into single family

residential areas. Achievement of this

objective shall be quantified by the

implementation of th e following policies:

Policy 2.1 - The Town shall maintain a

future land use map pattern and zoning

pattern which keeps two - family and other

incompatible uses out of single family

residential areas.

Policy 2.2 - The Town shall maintain a

future land use map pattern and other

development regulations which provide

effective buffers between single family

residential areas and adjacent uses.

* * *

Policy 2.4 - The Town shall maintain and

enhance zoning code standards that regulate

massing and scale in ord er to maintain the

historic character and protect the single

family residential district.

* * *

Objective 4 - Elimination or reduction of

uses which are inconsistent with community

character: In general, encourage the

elimination or reduction of uses which are

inconsistent with the community's character

and future land uses. In particular,

achieve the elimination of all inconsistent

land uses. This objective shall be measured

by implementation of its supporting

policies.

Policy 4.1 - Inconsistent us es as referred

to in Policy 1.3 are hereby defined as any

uses which are located on a site where they

would not be permitted by this comprehensive

plan.

C. The Plan Amendments

1 6 . On February 11, 2014, the Town adopted Ordinance No.

2014 - 1 613 , which cont ains new FLUE Policy 10.6 . That policy

reads as follows:

The Town shall maintain land development

regulations that allow reasonable relief

from the Town land development regulations

or the use of restrictions of this

Comprehensive Plan in order to address

possible unintended violations of the

Religious Land Use and Institutionalized

Persons Act of 2000 or the Florida Religious

Freedom Restoration Act of 1998. For the

purpose of allowing such relief, the land

development regulations shall provide that

reli gious land uses may be permitted in the

areas of the Town as depicted on Map FLU - 8

of this Comprehensive Plan.

The policy directs the Town to maintain land development

regulations ( LDRs ) to address possible unintended violations of

R L UIPA and incorporates an accompanying map, FLU - 8 , which

depicts the areas of the Town where religious land uses are

permitted.

1 7 . Map FLU - 8 is an overlay map that specifically

identifies areas in the Town where places of public assembly,

including religious uses, are permit ted. The Map allows

religious uses to locate in certain land use categories that do

not currently list religious uses or places of public assembly

as permitted uses in the category, including the Low Density

Residential category. It allows religious uses to locate in

only two areas in the Low Density Residential category where

they were not already authorized by the Plan. Those areas

include the Young Israel lots, just north of, and adjacent to,

Petitioners' property, and a row of lots west of Harding Av enue

between 93rd Street and 94th Street. The Map includes all lots

in the area bounded by Collins Avenue, 96th Street, Harding

Avenue, and 88th Street, plus other lots west of Harding Avenue

and north of 93rd Street.

1 8 . Like the Bakkers' property, t h e Young Israel property

is zoned single - family residential and has a land use

designation of Low Density Residential. The two - story Young

Israel synagogue currently under construction is more than

23,000 square feet in size and has an underground parking

garage . As noted above, Petitioners have pending a lawsuit in

Dade County Circuit Court challenging the site plan . According

to Mr. Bakker, despite a 30 - foot high wall built by Young Israel

along the entire property line , he and his wife have been forced

to move to another location in the Town due to the round - the -

clock construction activities , which are only a few feet from

their home.

D . Petitioners' Objections

19. Petitioners contend that the amendments are not

consistent with section 163.3177(1)(f ), which requires plan

amendments to be based upon appropriate data and analysis. They

also contend that the amendments are not consistent with

section 163.3177(1) because the amendments fail to "guide future

decisions in a consistent manner," "establish meaningful and

predictable standards for the use and development of land," or

"provide meaningful guidelines for the content of more detailed

land development and use regulations." Petitioners further

contend that the amendments are not consistent with s ection

163.3177(6)(a)1., which requires that each future land use

category include uses and standards for control of density and

intensity. Finally, t hey contend that the amendments conflict

with portions of the FLUE , and therefore are not consistent with

section 163.3177(2) , which requires that the various elements in

the Plan be consistent with one another. These contentions are

addressed separately below.

a. Data and Analysis

2 0 . Section 163.3177(1)(f) requires that plan amendments

be based on relev ant and appropriate data , taken from

professionally accepted sources, and that an analysis of that

data be made by the local government. To be base d on data means

to react to it in an appropriate way and to the extent necessary

indicated by the data avail able on that particular subject at

the time of adoption. C opies of data and supporting documents

for proposed plan amendments must be made available for "public

inspection." § 163.3177(1)(f)1., Fla. Stat.

2 1 . Ms. Gould , who is the designated Town Planne r, was the

only expert who testified at the hearing. She testified that

the amendments were based on the data and analysis that were

used to create an identical zoning map (first RLUIPA map)

adopted by Ordinance No. 07 - 1479 on June 12, 2007. The first

RL UIPA map is an overlay map to the Town zoning map that

specifically identifies areas in the Town where places of public

assembly, including religious uses , are permitted. She further

indicated that the same reasons for inclusion of property in the

first R LUIPA map to allow places of public assembly were the

reasons for the inclusion of property in the FLU - 8 Map to allow

religious uses.

22. In addition, the Town used the data resulting from the

charrette process , including the transportation study, in its

analysis of the locations that were included in the R LUIPA map

and the FLU - 8 M ap. The charrette process revealed t hat some

single - family areas were located on major corridors, which is

not a good planning practice.

23. During her analysis, Ms. Gould reco gnized that it

would not be a good planning practice to create nonconformities

in adopting a RLUIPA map or the FLU - 8 Map. Therefore, she

considered the existing and proposed public assembly uses in the

Town. Based upon a settlement agreement between the Town and

Young Israel, and the subsequent approval of a site plan for

Young Israel's property , s he knew that Young Israel planned to

build a synagogue. She also considered the desirability of

allowing major corridors to transition from solely single - famil y

uses to uses that act as more of a buffer to the single - family

uses. The north side of t he Young Israel property fronts on a

major , four - lane , east - west corridor (96th Street) that is one

of the primary access ways from the Town to the mainland. The

sy nagogue use on this major corridor is an appropriate buffer to

the single - family uses south and to the west. The Young Israel

property is across the street from the Town's commercial

district and a parking lot located to the east. Also, a n

existing churc h, the Little Church by the Sea, is across the

street, and the Bal Harbour Shops, a major regional shopping

mall with storefronts reaching up to 50 feet in height , is

located directly to the north across 96th Street . Ms. Gould

further established that it is an accepted planning practice to

include religious uses within single - family residential

districts. Finally, she recognized that t he Young Israel

property is close to residential areas enabling congregants to

walk to the synagogue.

2 4 . Besides the Y oung Israel property, Ms. Gould also took

into account other proposed synagogues such as The Shul, whose

site plan was then being reviewed. Consideration of existing

and planned religious uses was appropriate data to consider in

the creation of the FLU - 8 Map. While Petitioners have

challenged the Young Israel site plan in circuit court, its

legality is not r elevant to a contention that the amendment is

not based on sufficient data and analysis.

2 5 . Ms. Gould testified that another purpose in adopting

t he amendments was to depict in the Plan where places of public

assembly can be located. T he R L UIPA zoning ordinance already

describes the areas where religious organizations may be built.

Th e amendment includes an overlay that provides the same

informati on in the Plan.

2 6 . All of t he data supporting the amendments, including

the documentation for the Charrette Booklet , the Resolutions,

the RLUIPA map s , the minutes and reports for the adoption of the

Young Israel site plan , the settlement agreement , and the staff

reports , were available for public inspection before and at the

time of the adoption of the challenged amendments.

27. The amendments do not implicate the provision of

services or capital improvements, nor do they require the Town

to take any immediate action. In th is respect, the amendments

are akin to an aspirational amendment and can be based on less

data and analysis than might otherwise be required. See, e.g. ,

Indian Trail Improve. Dist. v. Dep't of Cmty. Affairs , 946 So.

2d 640, 641 (Fl a. 4th DCA 2007).

2 8 . Petitioners provided no expert testimony or evidence

that contradicted the testimony of Ms. Gould regarding the

appropriateness of the data or her analysis of that data .

2 9 . Whether considered an aspirational amendment or not,

i t is at least fairly debatable that the Town satisfied the data

and analysis requirements of s ections 163.3177(1)(f),

163.3177(l)(f)1 . , and 163.3177(l)(f)2 .

b. Predictable Standards and Meaningful Guidelines

30 . Petitioners contend that the a mendment s are not

consistent with s ection 163.3177(1) because the y fail to "guide

future decisions in a consistent manner," "establish meaningful

and predictable standards for the use and development of land,"

or "provide meaningful guidelines for the content of more

de tailed land development and use regulations." However, the

Plan itself must provide this type of general guidance, and the

challenged plan amendments should be viewed in the context of

the guidance that is provided by the entire Plan.

3 1 . The entire Pl an was determined to be in compliance in

2010 , and the a mendment s do not significantly change or impact

the Plan's consistency with s ection 163.3177(l). The a mendment s

simply add a religious use to limited properties within the Low

Density Residential lan d use category ; they do not bring the

entire Plan out of compliance.

3 2 . Even if section 163.3177(1) applies to each plan

amendment, Petitioners have failed to carry their burden of

proof on this issue. Petitioners rely on the testimony of the

Town Plann er, but her t estimony , not contradicted, is that the

amendments are consistent with s ection 163.3177(l). The text

a mendment and Map describe where religious uses may be located .

Thus, they guide future decisions in a consistent, predictable ,

and meaningf ul manner about where religious uses may be located.

3 3 . The FLU - 8 Map overlays the existing FLUE categories,

and the underlying categories provide standards and guidance for

the use and development of land. The F LUE categories include

standards for in tensity that apply to religious uses. In the

case of residential categories, the intensity standard is the

height restriction in each category . For example, in the Low

Density Residential category , height is restricted to 30 feet.

In the case of non - res idential categories, the intensity

standard is Floor Area Ratio. The intensity standards of each

of the F LUE categories, including those that list places of

public assembly (and thus religious uses) as allowable uses,

were adopted in the 2010 Plan and wer e found to be in compliance

by the Department of Community Affairs. Although Petitioners

argued that a religious use is a commercial use that must have

another intensity standard in a residential category, the

evidence establishes that religious uses are not commercial

uses. Petitioners provided no persuasive evidence that these

intensity standards are not meaningful or predictable or that

they do not meet the requirements of s ection 163.3177(l) in any

way.

3 4 . Ms. Gould further testified that the a mendm ent

provides meaningful guidelines for the content of more detailed

LDRs by refe rr ing to LDRs that will address possible unintended

violations of RLUIPA and the Florida Religious Freedom

Restoration Act. Policy 10.6 directs the Town to "maintain land

deve lopment regulations that allow reasonable relief . . . in

order to address possible unintended violations of the [law]. "

The RLUIPA relief procedures were adopted by Ordinance 2009 - 1510

on January 13, 2009, and are incorporated in the Town zoning

code as s ection 90 - 99. Ms. Gould described how those procedures

operate, consistent with the restrictions of the Plan and the

Town Charter.

3 5 . Petitioners contend that the policy's use of the word

"reasonable" is not a sufficiently meaningful guideline for the

RLUIPA LDRs . Th is argument, however, is based upon the Town's

approval of the Young Israel site plan, which occurred years

before the new policy was adopted. Petitioners argue that the

Young Israel site plan approval proves that Policy 10.6 does not

prov ide meaningful guidelines for the RLUIPA LDRs . This

argument misses the mark for at least three reasons . First,

Petitioners presented no evidence that the LDRs themselves lack

meaningful standards, or that any court has found the

regulations to be invali d or otherwise inappropriate in any way.

Even if such evidence had been presented, the validity of the

regulations cannot be decided here. Second, Petitioners'

complaint that the application of the LDRs to the Young Israel

site plan approval was "contrac t zoning" is not a matter that

can be decided in this proceeding. Any evidence that the

regulations were improperly applied to Young Israel is not

relevant to the question of whether Policy 10.6 provides

meaningful guidance to the content of the LDRs . Fi nally,

Petitioners' complaint centers on the content of the settlement

stipulation that formed the basis for the site plan approval,

but nothing in Policy 10.6 requires or even refers to the

settlement stipulation. The Young Israel settlement stipulation

is irrelevant to the a mendment and its use by the Town is not

evidence that the a mendment lacks sufficient guidelines and

standards.

3 6 . Ms. Gould testified that the circumstances under which

there may be the need for relief from LDRs because of RLUIPA

necessarily will vary on a case by case basis, according to the

facts of the specific case. In this context, the p olicy's

reference to "reasonable relief " is sufficient to guide the

development of more detailed LDRs . The use of the term

"reasonable relie f " is no different than the directive in

s ection 163.3177(l) that plans shall establish "meaningful"

standards. What standards are "meaningful , " or data "relevant

and appropriate," necessarily will vary according to the facts

and circumstances of the case . The LDRs should contain the

detail for that purpose, and it is not necessary to add these

details to the Plan.

3 7 . Finally, b ecause the meaning of "reasonable relief "

may change over time as RLUIPA is further interpreted by the

courts , the details of t he LDRs will need to be flexible to

accommodate those changes. This does not make the Policy's

reference to LDRs that provide "reasonable relief" meaningless.

3 8 . It is at least fairly debatable that the plan

amendments satisfy the requirements of sectio n 163.3177(l) for

guidance to future decisions, meaningful and predictable

standards for the use and development of land, and meaningful

guidelines for more detailed LDRs .

c. Internal Consistency

3 9 . Petitioners contend that the amendments are internally

inconsistent with a number of FLUE goals, objectives, and

policies and t herefore contravene section 163.3177(2). That

statute requires that "[t]he several elements of the

comprehensive plan shall be consistent." The FLUE provisions

relate generally to t he protection of the character of the

single - family neighborhood. Petitioners also contend that

Ordinance Nos. 2007 - 1479 and 2009 - 1510 conflict with the same

FLUE provisions . However, the Department of Community Affairs

has already found the 2010 Plan to be in compliance.

Accordingly, that issue cannot be adjudicated here.

40 . Ms. Gould testified that from a planning perspective

religious uses are consistent with single - family uses, and they

are an integral part of neighborhoods. The Town has a large

Jewish Orthodox community, and a synagogue that is within

walking distance is essential to the community. The a mendment s

allow religious uses along the major transportation corridors in

the Town at the edges of the Low Density Residential area .

These rel igious uses act as buffers and transition uses between

the adjacent commercial areas and the rest of the single - family

residences in the Low Density Residential areas.

4 1 . The a mendment s do not eliminate the existing zoning

code standards that regulat e open space, massing , and scale.

They simply direct the Town to maintain LDRs to address possible

unintended violations of RLUIPA . The a mendment s do not create

an internal inconsistency with the policies and objectives of

the FLUE .

4 2 . It is at least fairly debatable that the a mendment s

satisf y the requirements of s ection 163.3177(2) for internal

consistency between the several elements of the Plan.

d. Standards for Intensity and Density

4 3 . Petitioners contend that the amendments are not

consistent with section 163.3177(6)(a)1., which requires, in

part, that each land use category "must be defined in terms of

uses included, and must include standards to be followed in the

control and distribution of population densities and building

and structure in tensities."

4 4 . It is at least fairly debatable that the amendments

are consistent with this statutory requirement.

e. Other Contentions

45. All other contentions not specifically addressed above

have been considered and found to be without merit.

CON CLUSIONS OF LAW

4 6 . To have standing to challenge or support a plan

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

s ection 163.3184(1)(a) . Petitioner s are affected persons within

the meaning of the statute.

4 7 . P lan amendments adopted unde r the expedited state

review process do not receive an ORC report or a notice of

intent from the state land planning agency. See § 163.3184(3),

Fla. Stat. Instead, proposed plan amendments are sent directly

to reviewing agencies that have 30 days to send comments within

their respective areas of expertise back to the local

government. In this case, no adverse comments were made by the

reviewing agencies , including the Department of Economic

Opportunity . Within 30 days after the adoption process is

concl uded, an affected person may challenge the plan amendment

by filing a petition directly with DOAH. See § 163.3184(5)(a),

Fla. Stat. A hearing is then conducted to determine "whether

the plan or plan amendments are in compliance as defined in

paragraph [1 63.3184](1)(b)." Id.

4 8 . "In compliance" means "consistent with the

requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191,

163.3245, and 163.3248, with the appropriate strategic regional

policy plan, and with the principles for guiding development in

designated areas of critical state concern and with part III of

chapter 369, where applicable." § 163.3184(1)(b), Fla. Stat.

4 9 . The "fairly debatable" standard, which provides

deference to the local government 's disputed decision, applies

to any cha llenge filed by an affected person. Therefore,

Petitioner s bear the burden of proving beyond fair debate that

the challenged plan amendment s are not in compliance. This

means that "if reasonable persons could differ as to its

propriety," a plan amendment must be upheld. Martin Cnty. v.

Yusem , 690 So. 2d 1288, 1295 (Fla. 1997). Or, w here there is

"evidence in support of both sides of a comprehensive plan

amendment, it is difficult to determine that the [Town's]

decision was anything but 'fairly debatable .'" Martin Cnty. v.

Section 28 P'ship, Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA

2000).

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

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

Stat.

5 1 . Section 163.3177(1)(f) requires that all plan

amendments be based on relevant and appropriate data and an

analysis by the local government. For the reasons previously

found, it is concluded that the plan amendments are supported by

relevant and appropriate data and an analysis by the City.

5 2 . Petitioners also contend that the data and supporting

documents for the amendments were not "made available for public

inspection," as required by section 163.3177(1)(f)1. They point

out that a complete list of the data was not disclosed until a

discove ry response was filed by the Town several weeks before

the hearing, and the list included documents not referred to by

the Town during the meetings at which the plan amendment was

being considered. Petitioners contend that u nder the rationale

in U.S. Fund ing Group, LLC v. Manatee County , Case No. 09 -

6014GM, 2010 Fla. Div. Adm. Hear. LEXIS 555 (Fla. DOAH July 28,

2010), Final Order Dismissing Case (Fla. DCA Dec. 8, 2010), the

data were not available for public inspection. However, t he

U.S. Funding case is clearly distinguishable. In that case,

existing documents in the private files of an expert that were

never provided to the local government prior to the adoption of

the amendment were determined to be unavailable for public

inspection and therefore were inadmissible. Id. at *34. In

this case, the supporting documents , all generated by the Town

over a number of years, were available for public inspection

throughout the amendment process. Even though each and every

piece of datum relied upon to support t he amendments was not

identified by the Town during the six meetings at which the

am endments were considered, the statute should not be so

narrowly construed as to find the amendments out of compliance

solely on this basis. Assuming arguendo that the stat ute

contemplates that this disclosure be made , and a procedural

error occurred, Petitioners did not demonstrate how they were

prejudiced by this omission .

5 3 . The elements of a comprehensive plan must be

internally consistent. See § 163.3177(2), Fla. Sta t. For the

reasons previously found, Petitioners have not shown beyond fair

debate that the amendments are internally inconsistent with the

FLUE .

5 4 . For the reasons previously found, Petitioners have

failed to show beyond fair debate that the amendments do not

satisfy the requirements of section 163.3177(1) for guidance to

future decisions, meaningful and predictable standards for the

use and development of land, and meaningful guidelines for more

detailed LDRs.

5 5 . Finally, Petitioners have failed to s how beyond fair

debate that the amendments are inconsistent with section

163.3177(6)(a)1. for lack of standards.

5 6 . In summary, Petitioners have failed to demonstrate

beyond fair debate that the plan amendments are not in

compliance.

RECOMMENDATION

Base d 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 amendments adopted

by Ordinance No. 2014 - 1 613 are in compliance.

DONE AND ENTERED this 1 7th day of June, 2014, 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 17th day of June, 2014.

ENDNOTE

1 Because relevant excerpts of the Town's comprehensive plan and

land development regulations have been accepted as Town Exhibits

N and O, Petitioners' request to take official recognition of

those documents is rendered moot.

COPIES FURNISHED:

Jesse Panuccio , Executive Director

Department of Economic Opportunity

107 East Madison Street

Tall ahassee, Florida 32399 - 4128

Robert N. Sechen , General Counsel

Department of Economic Opportunity

107 East Madison Street

Tallahassee, Florida 32399 - 4128

Andrew M. Tobin, Esquire

Andrew M. Tobin, P.A.

Post Office Box 620

Tavernier, Florida 33070 - 0620

Michael W. Morell, Esquire

Post Office Box 221861

Hollywood, Florida 33022 - 1861

Nancy E. Stroud, Esquire

Lewis, Stroud and Deutsch, P.L.

Suite 251

1900 Glades Road

Boca Raton, Florida 33431 - 8548

Linda H. Miller, Esquire

Town Attorney

9293 Harding Avenu e

Surfside, Florida 33154 - 3009

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.