14-005657GM Alerts Of Pbc, Inc., Patricia D. Curry, Robert Schutzer, And Karen Schutzer vs. Palm Beach County
 Status: Closed
Recommended Order on Friday, April 17, 2015.


View Dockets  
Summary: Palm Beach County's determination that the proposed amendments to its comprehensive plan are in compliance is fairly debatable.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ALERTS OF PBC, INC., PATRICIA D.

14CURRY, ROBERT SCHUTZER, AND

18KAREN SCHUTZER,

20Petitioners,

21vs. Case No. 14 - 5657GM

27PALM BEACH COUNTY,

30Respondent,

31and

32MINTO PBLH, LLC,

35Intervenor.

36____________________ ___________/

38RECOMMENDED ORDER

40The final hearing in this case was held on March 4 through

526, 2015, in West Palm Beach, Florida, before Bram D.E. Canter,

63Administrative Law Judge of the Division of Administrative

71Hearings (ÐDO AHÑ).

74APPEARANCES

75For Petitioners: Ralf G. Brookes, Esquire

811217 E ast Cape Coral Parkway , Suite 107

89Cape Coral, Florida 33904

93For Respondent: Amy Taylor Petrick, Esquire

99Palm Beach County Attorne y's Office

105301 North Olive Avenue, Suite 601

111West Palm Beach, Florida 33401

116For Intervenor: Gary K. Hunter, Jr., Esquire

123Vinette Godelia, Esquire

126Hopping , Green & Sams, P.A.

131Post Office Box 6526

135Tallahassee, Florida 323 14

139Tara W. Duhy, Esquire

143Lewis Longman & Walker, P.A.

148515 North Flagler Drive, Suite 1500

154West Palm Beach, Flor ida 33401

160STATEMENT OF THE ISSUE

164The issue to be determined in this case is whether the

175amendments to the Palm Beach County Comprehensive Plan (Ðthe Comp

185PlanÑ) adopted by the Board of County Commissioners of Palm Beach

196County by Ordinance No. 14 - 030 ( ÐProposed AmendmentsÑ) are Ðin

208compliance,Ñ as that term is defined in section 163.3184(1)(b),

218Florida Statutes (2014).

221PRELIMINARY STATEMENT

223On October 29, 2014, Palm Beach County adopted Ordinance No.

23314 - 030, which amended the Future Land Use Element ( ÐFLUEÑ), text,

246and Map Series of the Comp Plan for a large tract of land in the

261western part of the County. Petitioners Alerts of PBC, Inc.,

271Patricia D. Curry, Robert Schutzer, and Karen Schutzer filed a

281petition for hearing to challenge the Proposed Amen dments.

290Later, they requested and were granted leave to amend their

300petition.

301At the final hearing, Petitioners presented the testimony of

310Daryl Max Forgey, James Fleischmann, John Kim, and Jay Foy.

320PetitionersÓ Exhibit 1 was admitted into evidence.

327Palm Beach County presented the testimony of Bryan Davis and

337George Webb. Palm Beach CountyÓs Exhibits 1, 3, and 7 were

348admitted into evidence.

351Intervenor Minto PBLH, LLC (ÐMintoÑ), presented the

358testimony of John Carter, Donaldson Hearing, and Robert Pennock .

368MintoÓs Exhibits 1, 2, 6, 7, 11, 16, 17, 19, 21, 23, 24, and 27

383were admitted into evidence.

387Joint Exhibits 1, 3, 4, 5, 6, 8, 13, 21, 48, 51, and 55 were

402admitted into evidence.

405The five - volume Transcript of the final hearing was filed

416with DOAH. The p arties filed proposed recommended orders that

426were considered by the Administrative Law Judge in the

435preparation of this Recommended Order.

440FINDINGS OF FACT

443The Parties

4451. Petitioner Alerts of PBC, Inc. (ÐAlertsÑ) , is a Florida

455not - for - profit corporatio n doing business in Palm Beach County.

468Alerts made timely objections and comments to the County on the

479Proposed Amendments.

4812. Petitioner Patricia Curry is a resident and landowner in

491Palm Beach County. Ms. Curry made timely objections and comments

501to t he County on the Proposed Amendments.

5093. Petitioner Robert Schutzer is a resident and landowner

518in Palm Beach County. Mr. Schutzer made timely objections and

528comments to the County on the Proposed Amendments.

5364. Petitioner Karen Schutzer is a resident a nd landowner in

547Palm Beach County. Ms. Schutzer made timely objections and

556comments to the County on the Proposed Amendments.

5645. Respondent Palm Beach County is a political subdivision

573of the State of Florida and has adopted the Comp Plan, which it

586amend s from time to time pursuant to section 163.3184.

5966. Intervenor Minto is a Florida limited liability company

605doing business in Palm Beach County. Minto is the owner of all

617of the 3,788.6 acres (Ðthe PropertyÑ) which are the subject of

629the Proposed Amendm ents, with the exception of two parcels

639totaling 40.04 acres, which are owned by the Seminole Improvement

649District. Minto appointed the board of supervisors of the

658Seminole Improvement District pursuant to state law.

665Background

6667. FLUE Objective 1.1 esta blishes a unique Managed Growth

676Tier System Ðto protect viable existing neighborhoods and

684communities and direct the location and timing of future

693development.Ñ The Property is located in the CountyÓs Rural Tier

703and is bounded by Exurban Tier to the north and east.

7148. North of the Property is a large subdivision known as

725the Acreage, which was described by Respondents as ÐantiquatedÑ

734because it was developed in a manner that was common decades ago

746before modern community planning concepts and growth manag ement

755laws. The Acreage is dominated by 1.25 - acre residential lots,

766laid out in a grid pattern with few other uses.

7769. Although the residents of the Acreage have a strong

786sense of community, it is apparently a matter of aesthetics,

796familiarity, and socia l intercourse, because the Acreage is not a

807community in the modern planning sense of providing a mix of uses

819where residents can live, shop, work, and play. It is a

830development pattern that is now discouraged by state law and the

841Comp Plan, because it is inefficient with respect to the

851provision and use of public services.

85710. The Property and the Acreage are within a 57,000 - acre

870area known as the Central Western Communities (ÐCWC"). The CWC

881has been the subject of extensive planning efforts by the Coun ty

893for many years to address land use imbalances in the area. There

905are many residential lots, but few non - residential uses to serve

917the residents.

91911. In 2008, the previous owner of the Property, Callery -

930Judge Groves (ÐCalleryÑ), obtained an Agricultura l Enclave (AGE)

939future land use designation for essentially the same area as the

950Property. The Comp Plan was amended to establish an AGE future

961land use designation, AGE policies, a conceptual plan of

970development, and implementing principles (Ðthe 2008 Am endmentsÑ).

97812. Under the 2008 Amendments, the site was limited to

9882,996 residential units and 235,000 square feet of retail and

1000office uses. No development has been undertaken pursuant to the

10102008 Amendments.

101213. In 2013, the site was sold to Minto, wh ich submitted a

1025Comp Plan amendment application in November 2013 , and a revised

1035application in July 2014. On October 29, 2014, the County

1045adopted the Proposed Amendments.

104914. The Proposed Amendments change the future land use

1058designation of 53.17 acres ( Ðthe outparcelsÑ) from RR - 10 to AGE,

1071and increase residential density to 4,546 units and increase

1081intensity to two million square feet of non - residential uses,

1092200,000 square feet of civic uses, a 150 - room hotel and a 3,000 -

1109student college, and revise the Conceptual Plan and Implementing

1118Principles.

111915. The Proposed Amendments would also revise text in the

1129Introduction and Administration, Future Land Use, and

1136Transportation Elements. The Map Series would be amended to add

114653.17 acres to the Limited Urban Service Area on Map LU 1.1 and

1159Map LU 2.1, and to identify new Rural Parkways on Map TE 14.1.

1172PetitionersÓ Challenge

117416. Petitioners contend the Proposed Amendments are not Ðin

1183complianceÑ because they fail to establish meaningful and

1191predictable standard s; do not comply with the agricultural

1200enclave provisions of section 163.3164(4); are not based upon

1209relevant and appropriate data and analysis; promote urban sprawl;

1218are incompatible with adjacent communities and land uses; and

1227create inconsistencies with in the Comp Plan.

123417. Many of the issues raised and the arguments made by

1245Petitioners fail to acknowledge or distinguish the 2008

1253Amendments that address future development of the Property. In

1262several respects, as discussed below, the 2008 Amendments alr eady

1272authorize future development of the Property in a manner which

1282Petitioners object to. In several respects, the types of impacts

1292that Petitioners are concerned about are actually diminished by

1301the Proposed Amendments from what is currently allowed und er the

13122008 Amendments.

1314Meaningful and Predictable Standards

131818. Petitioners contend that proposed FLUE Policies

13252.2.5 - d, 2.2.5 - e, and 2.2.5 - f, and Maps LU 1.1 and 2.1 fail to

1343establish meaningful and predictable standards for the use and

1352development of l and and fail to provide meaningful guidelines for

1363the content of more detailed land development and use

1372regulations, in violation of section 163.3177(1).

137819. The Proposed Amendments add more detail to the

1387standards that were adopted in the 2008 Amendments . The Proposed

1398Amendments establish substantially more direction for the future

1406development of the Property than simply a land use designation

1416and listing of allowed uses, which is typical in comprehensive

1426plans.

142720. Petitioners contend the Proposed Amen dments lack

1435adequate standards because they refer to the use of Ðappropriate

1445new urbanism concepts,Ñ which Petitioners say is vague. New

1455urbanism refers to land use planning concepts such as clustering,

1465mixed - use development, rural villages, and city cent ers. See

1476§ 163.3162(4), Fla. Stat. (2014). In land use planning parlance,

1486new urbanism creates more ÐlivableÑ and ÐsustainableÑ

1493communities.

149421. The term Ðappropriate new urbanism conceptsÑ used in

1503the Proposed Amendments is the same term used in sectio n

1514163.3162(4), dealing with the development of agricultural

1521enclaves. There are many concepts that are part of new urbanism,

1532which can be used in combination. Which concepts are

1541ÐappropriateÑ depends on the unique opportunities and constraints

1549presented by the area to be developed.

155622. Use of the term Ðappropriate new urbanism conceptsÑ in

1566the Proposed Amendments adds detail to the future development

1575standards applicable to the Property. It does not create

1584vagueness.

158523. Petitioners contend the propose d amendments of Maps

1594LU 1.1 and 2.1 do not provide meaningful and predictable

1604standards and guidelines. However, the maps are only being

1613amended to show that 53.17 acres of outparcels within the

1623Property are being added to the existing Limited Urban Servi ce

1634Area. The map amendments do not diminish the meaningfulness or

1644predictability of any standards in the Comp Plan.

165224. The preponderance of the evidence shows the Proposed

1661Amendments establish meaningful and predictable standards.

1667Agricultural Enclave

16692 5. Petitioners contend the Proposed Amendments fail to

1678meet the requirements for an agricultural enclave in section

1687163.3164. As explained in the Conclusions of Law, consistency

1696with section 163.3164 is not a component of an Ðin complianceÑ

1707determination .

170926. Furthermore, the Property is already designated

1716Agricultural Enclave in the Comp Plan.

1722Data and Analysis

172527. Petitioners contend the amendment of the Limited Urban

1734Service Area is not supported by relevant and appropriate data

1744and analysis as requi red by section 163.3177(1)(f). The

1753inclusion of the outparcels is logical and reasonable. It is

1763consistent with the Comp Plan policies applicable to Limited

1772Urban Service Areas. It is supported by data and analysis.

178228. Petitioners contend the increase s in density and

1791intensity allowed by the Proposed Amendments are not supported by

1801data and analysis showing a need for the increases. However, the

1812increases are supported by relevant and appropriate data and

1821analysis, including population projections and extensive analysis

1828of the need for non - residential uses in the CWC. Population

1840projections establish the minimum amount of land to be designated

1850for particular uses; not the maximum amount of land. See

1860§ 163.3177(1)(f)3., Fla. Stat (2014).

186529. Petition ers make several claims related to the

1874availability of public utilities and other services to the

1883Property. The data and analysis show sufficient capacity for

1892roads, transportation, schools, water supply, wastewater

1898treatment, fire, emergency and police e ither already exists or is

1909contemplated in the Comp Plan to accommodate the development

1918authorized by the Proposed Amendments.

192330. The preponderance of the evidence shows the Proposed

1932Amendments are supported by relevant data and analysis.

1940Urban Sprawl

194231 . Petitioners contend the Proposed Amendments do not

1951discourage the proliferation of urban sprawl. Urban sprawl is

1960defined in section 163.3164(51) as Ða development pattern

1968characterized by low density, automobile - dependent development

1976with either a sing le use or multiple uses that are not

1988functionally related, requiring the extension of public

1995facilities and services in an inefficient manner, and failing to

2005provide a clear separation between urban and rural uses.Ñ

201432. Petitioners contend the Property do es not qualify for

2024the presumption against urban sprawl under the criteria in

2033section 163.3162(4), but Minto did not rely on that statutory

2043presumption.

204433. Petitioners contend the Proposed Amendments create five

2052of the 13 primary indicators of urban spra wl set forth in section

2065163.3177(6)(a)9.:

2066Promote s , allow s, or designate s for

2074development substantial areas of the

2079jurisdiction to develop as low - intensity,

2086low - density, or single - use development or

2095uses.

2096Promote s , allow s, or designate s significant

2104amount s of urban development to occur in

2112rural areas at substantial distances from

2118existing urban areas while not using

2124undeveloped lands that are available and

2130suitable for development.

2133Fail s to maximize use of existing public

2141facilities and services.

2144Allow s for land use patterns or timing which

2153disproportionately increase the cost in time,

2159money, and energy of providing and

2165maintaining facilities and services,

2169including roads, potable water, sanitary

2174sewer, stormwater management, law

2178enforcement, education, h ealth care, fire and

2185emergency response, and general government.

2190Fail s to provide a clear separation between

2198rural and urban uses.

220234. The evidence presented on this issue by Petitioners was

2212inconsistent with generally accepted land use planning concept s

2221and principles. The Proposed Amendments do not promote urban

2230sprawl. They go far to rectify existing sprawl conditions in the

2241CWC.

224235. Findings relevant to the five indicators have already

2251been made above. Compatibility with adjacent uses is discusse d

2261below.

226236. There are ample data and analysis which show the

2272Proposed Amendments discourage urban sprawl. RespondentsÓ

2278characterization of the Proposed Amendments as the opposite of

2287urban sprawl is not unreasonable.

229237. The preponderance of the evidenc e shows the Proposed

2302Amendments discourage the proliferation of urban sprawl.

2309Compatibility

231038. Petitioners contend the Proposed Amendments are

2317Ðincompatible with the lifestyle of the existing and surrounding

2326communities and adjacent agricultural and othe r land uses.Ñ

233539. Protection of PetitionersÓ lifestyle cannot mean that

2343surrounding areas must remain undeveloped or must be developed in

2353a similar suburban sprawl pattern. Land use imbalances in the

2363CWC are rectified by the Proposed Amendments while pro viding

2373large buffers and a transition of land uses on the Property to

2385protect adjacent land uses.

238940. The Acreage is more accurately characterized as

2397suburban rather than rural. Moreover, the Proposed Amendments

2405include a conceptual plan and development guidelines designed to

2414create a clear separation between urban uses on the Property and

2425less dense and intense external uses. Residential densities near

2434the perimeter of the Property would correspond to the density in

2445the Acreage.

244741. The proposed distri bution of land uses and large open

2458space buffers would not establish merely an adequate transition.

2467They would provide substantial protection to adjacent

2474neighborhoods. A person at the periphery of the Property would

2484likely see only open space, parks, an d low - density residential

2496uses.

249742. The distribution of land uses and natural buffers in

2507the Proposed Amendments provide more protection for external land

2516uses than the 2008 Amendments.

252143. The more persuasive evidence presented indicates that

2529Petitioner s and other persons living near the Property would be

2540beneficiaries of the Proposed Amendments because they could use

2549and be served by the office, commercial, government, and

2558recreational uses that will be available nearby.

256544. The preponderance of the ev idence shows the Proposed

2575Amendments are compatible with adjacent land uses.

2582Internal Consistency

258445. The Comp PlanÓs Introduction and Administration Element

2592and FLUE contain statements of intent. They are not objectives

2602or policies. Petitioners contend the Proposed Amendments are

2610inconsistent with some of the statements.

261646. Petitioners contend the Proposed Amendments are

2623inconsistent with the Introduction and Administration Element

2630statements discouraging growth to the west where services are not

2640adeq uate, do not provide for orderly growth or the provision of

2652facilities and services to maintain the existing quality of life

2662in an economical manner, and do not recognize countywide growth

2672management strategies or maintain the diversity of lifestyles.

2680Fin dings that refute this contention have been made above.

269047. Petitioners contend the Proposed Amendments are

2697inconsistent with several general statements in FLUE Sections

2705I A, I B, and I C. regarding respect for the character of the

2719area, protection of quality of life and integrity of

2728neighborhoods, prevention of ÐpiecemealÑ development, and

2734efficient provision of public services. Findings that refute

2742this contention have been made above.

274848. Petitioners contend FLUE Policy 2.2.5 - d allows land

2758uses whi ch are inconsistent with the policies applicable to the

2769Rural Tier in which the Property is located. In the proposed

2780policy, the County exempts the Project from any conflicting Rural

2790Tier policies that would otherwise apply.

279649. Under the CountyÓs Manage d Growth Tier System, the

2806tiers are the Ðfirst levelÑ land use consideration in the FLUE.

2817Therefore, it would have been helpful to amend the Rural Tier

2828section of the FLUE to indicate the exceptions to Rural Tier

2839policies for agricultural enclaves, in gen eral, or for the

2849Property, in particular. Instead, the Proposed Amendments place

2857the new wording about exceptions in the section of the FLUE

2868dealing with agricultural land uses. However, as stated in the

2878Conclusions of Law, where the exception is located in the

2888comprehensive plan is not a consistency issue.

289550. The County has shown there are unique considerations

2904involved with the CWC that justify the exceptions. It also

2914demonstrated that the Proposed Amendments would accomplish

2921numerous objectives and policies of the Comp Plan that could not

2932be accomplished without creating exceptions to some Rural Tier

2941policies.

294251. Petitioners contend the Proposed Amendments are

2949inconsistent with FLUE Objective 1.1 - 3 because they encourage the

2960proliferation of urban sprawl. That contention has been rejected

2969above.

297052. Petitioners contend the Proposed Amendments are

2977inconsistent with FLUE Objective 1.1 - 6 because they do not

2988protect agricultural land and equestrian uses. The evidence

2996shows that agricultural and eques trian uses are enhanced by the

3007Proposed Amendments over the existing provisions of the Comp

3016Plan.

301753. Petitioners contend the Proposed Amendments are

3024inconsistent with FLUE Policy 1.1 - b, which addresses criteria re -

3036designating a tier. This policy is not applicable because the

3046Proposed Amendments do not re - designate a tier.

305554. Petitioners contend the Proposed Amendments are

3062inconsistent with FLUE Policy 1.1 - c, which requires the review of

3074the tier system as part of each Evaluation and Appraisal review.

3085Evaluation and Appraisal Reviews are no longer required by state

3095law.

309655. Petitioners contend the Proposed Amendments are

3103inconsistent with FLUE Policy 1.1 - d, which states a tier shall

3115not be re - designated if it would cause urban sprawl. This policy

3128is n ot applicable because the Proposed Amendments do not re -

3140designate a tier.

314356. Petitioners contend the Proposed Amendments are

3150inconsistent with FLUE Policy 1.4 - a, which requires the County to

3162protect and maintain the rural residential, equestrian , and

3170agr icultural areas within the Rural Tier. The Proposed

3179Amendments and Conceptual Plan increase the level of protection

3188for these uses over what is currently in the Comp Plan.

319957. Petitioners contend the Proposed Amendments are

3206inconsistent with FLUE Policy 1.4 - d, which generally prohibits

3216subdividing parcels of land within the Rural Tier unless certain

3226conditions are met. The Proposed Amendments do not subdivide any

3236parcels.

323758. Petitioners contend the Proposed Amendments are

3244inconsistent with FLUE Policy 1.4 - k, which addresses the

3254designation of Ðsending areasÑ for Transfer of Development Rights

3263(ÐTDRÑ). This policy only applies to parcels with a RR20 future

3274land use designation and there are no such parcels existing or

3285that would be created by the Propos ed Amendments.

329459. Petitioners contend the Proposed Amendments are

3301inconsistent with FLUE Policy 1.4 - l, which requires the County to

3313provide rural zoning regulations for areas designated Rural

3321Residential. The Property does not have any Rural Residential

3330designations.

333160. Petitioners contend the Proposed Amendments are

3338inconsistent with FLUE Policy 2.4 - b, which provides that the TDR

3350program is the required method for increasing density within the

3360County. The County applies this policy only to density in creases

3371in urban areas, because they are the only areas authorized to

3382receive TDRs.

338461. Petitioners contend the Proposed Amendments are

3391inconsistent with FLUE Objective 2.1 and some related policies,

3400which promote balanced growth. The preponderance of th e evidence

3410shows the Proposed Amendments will further this objective and its

3420policies because they correct the current imbalance of land uses

3430in the CWC and provide for a balanced mix of residential,

3441agricultural, commercial, light industrial, office, recr eation,

3448and civic uses.

345162. Petitioners presented no evidence to support their

3459claim that Proposed Amendments would exceed the natural or

3468manmade constraints of the area.

347363. Petitioners presented no credible evidence that

3480transportation infrastructure a nd other public services could not

3489be efficiently provided to the Property. The data and analysis

3499and other evidence presented show otherwise.

350564. Petitioners contend there is no justification for the

3514increased density and intensity authorized by the Pro posed

3523Amendments. There was ample justification presented to show the

3532increases were needed to create a sustainable community where

3541people can live, work, shop, and play.

354865. Petitioners contend the Proposed Amendments are

3555inconsistent with FLUE Objectiv e 2.2 and some related policies,

3565which require development to be consistent with land use

3574designations in the Comp Plan. PetitionersÓ evidence failed to

3583show any inconsistencies. The Proposed Amendments are compatible

3591with and benefit adjacent land uses, as found above.

360066. Petitioners contend the Proposed Amendments fail to

3608include Ðnew urbanismÑ concepts as required by section

3616163.3164(4) and Policy 2.2.5 - i. The evidence presented by

3626Respondents proved otherwise.

362967. Petitioners contend the Proposed Amendments are

3636inconsistent with FLUE Objective 3 and some related policies,

3645which address the provision of utilities and other public

3654services. Petitioners presented no credible evidence to support

3662this claim. The data and analysis and other evidence pr esented

3673show that public services are available or planned and can be

3684efficiently provided to the Property.

368968. Petitioners argued the Proposed Amendments were

3696inconsistent with several other FLUE policies generally related

3704to compatibility with adjacent land uses and the provision of

3714public services, all of which Petitioners failed to prove as

3724explained above.

372669. The preponderance of the evidence shows the Proposed

3735Amendments would not create internal inconsistency in the Comp

3744Plan.

3745CONCLUSIONS OF LA W

3749Standing

375070. To have standing to challenge a comprehensive plan

3759amendment, a person must be an Ðaffected personÑ as defined in

3770section 163.3184(1)(a). Petitioners are affected persons and

3777have standing to challenge the Proposed Amendments.

378471. Minto a lso qualifies as an affected person and has

3795standing to intervene in this proceeding.

3801Scope of Review

380472. An affected person challenging a plan amendment must

3813show that the amendment is not Ðin complianceÑ as defined in

3824section 163.3184(1)(b):

3826ÐIn complia nceÑ means consistent with the

3833requirements of ss. 163.3177, 163.3178,

3838163.3180, 163.3191, 163.3245, and 163.3248,

3843with the appropriate strategic regional

3848policy plan, and with the principles for

3855guiding development in designated areas of

3861critical state co ncern and with part III of

3870chapter 369, where applicable.

387473. The statutes listed in section 163.3184(1)(b) do not

3883include section 163.3162 or section 163.3164, which address

3891agricultural enclaves. Therefore, consistency with these

3897statutes is not relev ant to an Ðin complianceÑ determination.

390774. Petitioners were allowed to proffer evidence in support

3916of their claim that the Proposed Amendments do not comply with

3927sections 163.3162 and 163.3164 for purposes of appeal. Their

3936evidence did not demonstrate non - compliance.

394375. The 2008 Amendments are part of the existing Comp Plan

3954and are not subject to review or challenge in this proceeding.

3965See § 163.3184(9)(a), Fla. Stat. (2007) (providing third parties

397421 days following publication of a notice of intent to find in

3986compliance to challenge plan amendments).

3991Burden and Standard of Proof

399676. As the parties challenging the Proposed Amendments,

4004Petitioners have the burden of proof.

401077. Palm Beach CountyÓs determination that the Proposed

4018Amendments are in com pliance is presumed to be correct and must

4030be sustained if the CountyÓs determination of compliance is

4039fairly debatable. See § 163.3184(5)(c) 1. , Fla. Stat. (2014).

404878. The term Ðfairly debatableÑ is not defined in chapter

4058163. In Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla.

40701997), the Supreme Court of Florida explained Ð [t] he fairly

4081debatable standard is a highly deferential standard requiring

4089approval of a planning action if a reasonable person could differ

4100as to its propriety.Ñ

410479. The standard of proof for findings of fact is

4114preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

4122(2014).

4123Meaningful and Predictable Standards

412780. Comprehensive plans must provide "meaningful and

4134predictable standards for the use and development of land and

4144p rovide meaningful guidelines for the content of more detailed

4154land development and use regulations." § 163.3177(1), Fla. Stat.

4163(2014). Petitioners failed to prove the Proposed Amendments

4171violate this requirement.

4174Data and Analysis

417781 . Section 163.3177(1 )(f) requires that all plan

4186amendments be based on relevant and appropriate data and an

4196analysis by the local government. The statute explains: ÐTo be

4206based on data means to react to it in an appropriate way and to

4220the extent necessary indicated by the d ata available on that

4231particular subject at the time of adoption of the plan or plan

4243amendment at issue.Ñ £ 163.3177(1)(f), Fla. Stat. (2014).

425182. Petitioners failed to prove the Proposed Amendments

4259violate this requirement.

4262Urban Sprawl

426483. Section 163 .3177(6)(a)9. requires comprehensive plan

4271amendments to Ðdiscourage the proliferation of urban sprawl" and

4280sets forth 13 primary indicators of urban sprawl to be

4290considered. Petitioners failed to prove the Proposed Amendments

4298violate this requirement.

4301In ternal Consistency

430484. Section 163.3177(2) requires the elements of a

4312comprehensive plan to be internally consistent.

431885. It is not uncommon for laws, whether in the form of

4330statutes, rules, or policies of a comprehensive plan, to identify

4340circumstances which are excepted from the application of the law.

4350Creating an exception does not mean the law is in conflict with

4362itself. The exceptions from some Rural Tier policies created by

4372the Proposed Amendments for future development within an

4380agricultural encl ave do not create an internal inconsistency.

4389The location of the exceptions in the section of the FLUE dealing

4401with agricultural land uses does not change this conclusion

4410because the Comp Plan must be considered and applied as a whole.

442286. The Legislatur e has expressed its recognition of the

4432need for innovative planning and development strategies to

4440promote a diverse economy and vibrant rural and urban

4449communities. See § 163.3168(1), Fla. Stat. (2014). The Proposed

4458Amendments would effectively address t his need.

4465Summary

446687. Palm Beach CountyÓs determination that the Proposed

4474Amendments are in compliance is fairly debatable.

4481RECOMMENDATION

4482Based on the foregoing Findings of Fact and Conclusions of

4492Law, it is

4495RECOMMENDED that the Department of Economic Opportunity

4502issue a final order determining the Proposed Amendments adopted

4511by Palm Beach County Ordinance No. 2014 - 030 are in compliance.

4523DONE AND ENTERED this 17th day of April , 2015 , in

4533Tallahassee, Leon County, Florida.

4537S

4538BRAM D. E. CANTER

4542Administrative Law Judge

4545Division of Administrative Hearings

4549The DeSoto Building

45521230 Apalachee Parkway

4555Tallahassee, Florida 32399 - 3060

4560(850) 488 - 9675

4564Fax Filing (850) 921 - 6847

4570www.doah.state.fl.us

4571Filed with the Clerk of the

4577Divi sion of Administrative Hearings

4582this 17th day of April , 2015 .

4589COPIES FURNISHED:

4591Ralf G. Brookes, Esquire

45951217 East Coral Parkway , Suite 107

4601Cape Coral, Florida 33904

4605(eServed)

4606Gary K. Hunter, Jr., Esquire

4611Hopping, Green and Sams , P.A.

4616Post Office Box 6526

4620Tallahassee, Florida 32314

4623(eServed)

4624Tara W. Duhy, Esquire

4628Lewis Longman and Walker, P.A.

4633515 North Flagler Drive , Suite 1500

4639West Palm Beach, Florida 33401

4644(eServed)

4645Amy Taylor Petrick, Esquire

4649Palm Beach County Attorney ' s Office

4656301 North Olive Avenue, Suite 601

4662West Palm Beach, Florida 33401

4667(eServed)

4668Jesse Panuccio, Executive Director

4672Department of Economic Opportunity

4676Caldwell Building

4678107 East Madison Street

4682Tallahassee, Florida 32399 - 4128

4687(eServed)

4688Robert N. Sechen, General Counsel

4693Depa rtment of Economic Opportunity

4698Caldwell Building , MSC 110

4702107 East Madison Street

4706Tallahassee, Florida 32399 - 4128

4711(eServed)

4712Katie Zimmer, Agency Clerk

4716Department of Economic Opportunity

4720Caldwell Building

4722107 East Madison Street

4726Tallahassee, Florida 3239 9 - 4128

4732(eServed)

4733NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4739All parties have the right to submit written exceptions within

474915 days from the date of this Recommended Order. Any exceptions

4760to this Recommended Order should be filed with the agency that

4771will iss ue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/07/2015
Proceedings: Agency Final Order
PDF:
Date: 07/07/2015
Proceedings: Agency Final Order filed.
PDF:
Date: 05/08/2015
Proceedings: Joint Response to Petitioner's Exceptions filed.
PDF:
Date: 05/01/2015
Proceedings: Petitioners' Exceptions to Recommended Order filed.
PDF:
Date: 04/17/2015
Proceedings: Recommended Order
PDF:
Date: 04/17/2015
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/17/2015
Proceedings: Recommended Order (hearing held March 4 through 6, 2015). CASE CLOSED.
PDF:
Date: 04/01/2015
Proceedings: Notice of Filing Joint Proposed Recommended Order of Palm Beach County and Minto PBLH, LLC filed.
PDF:
Date: 04/01/2015
Proceedings: (Petitioner's) Proposed Recommended Order filed.
PDF:
Date: 03/27/2015
Proceedings: Order Granting Enlargement of Page Limit.
PDF:
Date: 03/26/2015
Proceedings: Unopposed Joint Motion to Enlarge the Page Limit of the Proposed Recommended Order filed.
PDF:
Date: 03/18/2015
Proceedings: (Admitted) Exhibit List filed.
Date: 03/18/2015
Proceedings: Respondent's Exhibits filed (exhibits not available for viewing).
Date: 03/18/2015
Proceedings: Transcript Volumes I-V (not available for viewing) filed.
PDF:
Date: 03/17/2015
Proceedings: Respondent Palm Beach County's Notice of Filing Transcripts filed.
Date: 03/04/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/03/2015
Proceedings: Notice of Filing Amended Exhibit "C" to Prehearing Stipulation filed.
PDF:
Date: 03/03/2015
Proceedings: Petitioner's Objections to Palm Beach County's (Proposed) Exhibit List filed.
PDF:
Date: 03/03/2015
Proceedings: Petitioner's Objections to Minto PBLH, LLC's (Proposed) Exhibits filed.
PDF:
Date: 03/03/2015
Proceedings: (Petitioners') Strike through Petition filed.
PDF:
Date: 03/03/2015
Proceedings: (Joint) Prehearing Stipulation filed.
PDF:
Date: 02/25/2015
Proceedings: Amended Notice of Taking Continued Deposition Duces Tecum (of Max Forgey) filed.
PDF:
Date: 02/23/2015
Proceedings: Notice of Cancellation of Deposition Duces Tecum (Alerts of PBC, Inc.) filed.
PDF:
Date: 02/23/2015
Proceedings: Notice of Taking Continued Deposition Duces Tecum (Max Forgey) filed.
PDF:
Date: 02/23/2015
Proceedings: Amended Notice of Taking Deposition Duces Tecum (Alerts of PBC, Inc.) filed.
PDF:
Date: 02/23/2015
Proceedings: Notice of Cancellation of Deposition Duces Tecum (Karen Schutzer) filed.
PDF:
Date: 02/23/2015
Proceedings: Notice of Cancellation of Deposition Duces Tecum (Robert Schutzer) filed.
PDF:
Date: 02/23/2015
Proceedings: Notice of Cancellation of Deposition Duces Tecum (Patricia D. Curry) filed.
PDF:
Date: 02/23/2015
Proceedings: Amended Notice of Hearing (hearing set for March 4 through 6, 2015; 9:00 a.m.; West Palm Beach, FL; amended as to dates of hearing).
PDF:
Date: 02/20/2015
Proceedings: Notice of Cancellation of Deposition Duces Tecum (of Charles Pattison) filed.
PDF:
Date: 02/20/2015
Proceedings: Petitioners' Notice of Dropping Expert Witness Charles Pattison, AICP, from Witness List filed.
PDF:
Date: 02/18/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Alerts of PBC, Inc) filed.
PDF:
Date: 02/18/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Karen Schutzer) filed.
PDF:
Date: 02/18/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Robert Schutzer) filed.
PDF:
Date: 02/18/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Patricia Curry) filed.
PDF:
Date: 02/18/2015
Proceedings: Respondent Palm Beach County's First Set of Interrogatories to Petitioners Alerts of PBC, Inc., Patricia D. Curry, Robert Schutzer and Karen Schutzer filed.
PDF:
Date: 02/18/2015
Proceedings: Respondent Palm Beach County's First Request to Produce to Petitioners Alerts of PBC, Inc., Patricia D. Curry, Robert Schutzer and Karen Schutzer filed.
PDF:
Date: 02/18/2015
Proceedings: Amended Notice of Hearing (hearing set for March 3 through 6, 2015; 9:00 a.m.; West Palm Beach, FL; amended as to as to hearing dates).
PDF:
Date: 02/17/2015
Proceedings: Amended Notice of Hearing (hearing set for March 3 and 6, 2015; 9:00 a.m.; West Palm Beach, FL; amended as to hearing room ).
PDF:
Date: 02/16/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Max Forgey) filed.
PDF:
Date: 02/16/2015
Proceedings: Notice of Taking Deposition Duces Tecum (of Charles Pattison) filed.
PDF:
Date: 02/10/2015
Proceedings: Amended Order of Pre-hearing Instructions.
PDF:
Date: 02/10/2015
Proceedings: Notice of Hearing (hearing set for March 3 through 6, 2015; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 02/10/2015
Proceedings: (Respondent's) Notice of Unavailability filed.
PDF:
Date: 02/09/2015
Proceedings: Petitioner's Notice of Unavailability and Available Dates filed.
PDF:
Date: 02/09/2015
Proceedings: Order Canceling Hearing.
PDF:
Date: 02/06/2015
Proceedings: Notice of Demand for Expeditious Resolution of Proceedings filed.
PDF:
Date: 01/30/2015
Proceedings: Notice of Hearing (hearing set for May 5 through 8, 2015; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 01/29/2015
Proceedings: Joint Response to Rescheduling Order filed.
PDF:
Date: 01/26/2015
Proceedings: Order Canceling Hearing (parties to advise status by January 30, 2015).
PDF:
Date: 01/26/2015
Proceedings: Petitioners' Notice of Service of Petitioners' Responses to Minto PBLH, LLC's Interrogatories and Request for Production filed.
PDF:
Date: 12/15/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 12/15/2014
Proceedings: Notice of Hearing (hearing set for March 3 through 6, 2015; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 12/09/2014
Proceedings: Amended Joint Response to Initial Order filed.
PDF:
Date: 12/09/2014
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 12/05/2014
Proceedings: Intervenor Minto PBLH, LLC's First Request for Production of Documents to Petitioner Karen Schutzer filed.
PDF:
Date: 12/05/2014
Proceedings: Notice of Service of Intervenor Minto PBLH, LLC's First Set of Interrogatories to Petitioner Karen Schutzer filed.
PDF:
Date: 12/05/2014
Proceedings: Intervenor Minto PBLH, LLC's First Request for Production of Documents to Petitioner Robert Schutzer filed.
PDF:
Date: 12/05/2014
Proceedings: Notice of Service of Intervenor Minto PBLH, LLC's First Set of Interrogatories to Petitioner Robert Schutzer filed.
PDF:
Date: 12/05/2014
Proceedings: Intervenor Minto PBLH, LLC's First Request for Production of Documents to Petitioner Patricia D. Curry filed.
PDF:
Date: 12/05/2014
Proceedings: Notice of Service of Intervenor Minto PBLH, LLC's First Set of Interrogatories to Petitioner Patricia D. Curry filed.
PDF:
Date: 12/05/2014
Proceedings: Intervenor Minto PBLH, LLC's First Request for Production of Documents to Petitioner Alerts of PBC, Inc filed.
PDF:
Date: 12/05/2014
Proceedings: Notice of Service of Intervenor Minto PBLH, LLC's First Set of Interrogatories to Petitioner Alerts of PBC, Inc filed.
PDF:
Date: 12/02/2014
Proceedings: Voluntary Dismissal of Florida Department of Economic Opportunity (DEO) as a Party filed.
PDF:
Date: 12/02/2014
Proceedings: Order Granting Petition to Intervene.
PDF:
Date: 12/02/2014
Proceedings: Notice of Appearance (Amy Petrick) filed.
PDF:
Date: 12/01/2014
Proceedings: Petition of Minto PBLH, LLC for Leave to Intervene in Alignment with Respondent Palm Beach County filed.
PDF:
Date: 12/01/2014
Proceedings: Initial Order.
PDF:
Date: 11/26/2014
Proceedings: Petition for Formal Administrative Hearing and Motion to Intervene filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
11/26/2014
Date Assignment:
12/01/2014
Last Docket Entry:
07/07/2015
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
GM
 

Counsels

Related Florida Statute(s) (11):