18-004743GM 222 Lakeview Llc vs. City Of West Palm Beach Status: Closed Recommended Order on Wednesday, December 26, 2018.

Summary: The Petitioners did not prove beyond fair debate that the City of West Palm Beach's comprehensive plan amendment creating the Okeechobee Business District in the Downtown Master Plan Element was not "in compliance," under section 163.3184.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

222 LAKEVIEW LLC,

Petitioner,

vs. Case No. 18 - 4743GM

CITY OF WEST PALM BEACH,

Respondent.

_______________________________/

PAL M BEACH COUNTY AND THE TOWN

OF PALM BEACH,

Petit ioner s ,

Case No. 18 - 4773GM

vs.

CITY OF WEST PALM BEACH,

Respondent.

_______________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in these cases on

October 16 and 22 through 24, 2018, in West Palm Beach, Florida,

before Francine M. Ffolkes, a duly designated Administrative Law

Judge with the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner 222 Lakeview LLC :

Nathan E. Nason, Esquire

Nason, Yeager, Gerson,

White & Lioce, P.A.

3001 PGA Boulevard

Palm Beach Gardens, Florida 33410

John Kenneth Rice, Esquire

Nason, Yeager, Gerson,

White & Lioce, P.A.

750 Park of Commerce Boulevard

Boca Raton, Florida 33487

For Petitioner s Palm Beach County and the Town of Palm

Beach:

Terrell K. Arline, Esquire

Terrell K. Arline, Attorney

at Law, Company

1819 Tamiami Drive

Tallahassee, Florida 32301

For Respondent: Kimberly L. Rothenburg, Esquire

K. Denise Haire, Esquire

City of West Palm Beach

401 Cle matis Street, 5th Floor

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE S

The issues to be determined in this consolidated proceeding

are (1) whether the Petitioners have demonstrated standing under

section 163.3184, Florida Statute s (2018) , and (2) whether the

Okeechobee Business District Comprehensive Plan Amendment

(OBD Amendment) adopted on August 13, 2018, by the Respondent by

Ordinance No. 4783 - 18 (Ordinance) is " in compliance " under

section 163.3184(1)(b).

PRELIMINARY STATEMEN T

On September 12, 2018, the Petitioner 222 Lakeview LLC

(Lakeview) timely filed a Petition for Formal Administrative

Hearing challenging the Respondent City of West Palm Beach ' s

(City) adoption of the OBD Amendment. On September 12, 2018, the

Petitioners Town of Palm Beach (Town) and Palm Beach County

(County) timely filed a Petition for Formal Administrative

Hearing also challenging the adoption of the OBD Amendment. On

September 17, 2018, the City filed a Notice of Request for

Expeditious Resolution un der section 163.3184(7). The cases were

consolidated for hearing on September 18, 2018.

At the hearing, the parties filed unilateral pre - hearing

statements , and the Town and County ' s request for official

recognition of the comprehensive plans of the Town, the County,

and the City was granted. Lakeview ' s Motion to Enforce Order of

Pre - h earing Instructions was granted, precluding Ms. Uyen Dang,

Ms. Hazel Carson, and Mr. Jeff Green e as witnesses for the City.

The City ' s Motion to Strike Witnesses was grante d , in part , and

denied , in part, precluding Ms. Terry England and Mr. Rene

Tercilla as witnesses for Lakeview. The City ' s Motion in Limine

was granted , in part , and denied , in part, excluding the City ' s

m ayor and c ommissioners from being called as witness es.

The County and Town presented the testimony of Ross Hering;

H. Paul Brazil, P.E.; Eric McClellan, accepted as an expert in

land use planning and comprehensive planning, including

transportation planning; Motasem Al - Turk, Ph . D . , P.E., accepted

as an exp ert in traffic engineering and traffic planning; and

Richard A. Ryabik, P.E., accepted as an expert in traffic

engineering and traffic planning. The County and Town 's

Exhibits 1, 2, 6 through 8, 10, 15, 21, and 23 were received in

evidence.

Lakeview prese nted the testimony of Shari Neissani, s enior

v ice p resident of Asset Management, RedSky Capital, LLC, which is

the owner of Lakeview; Jo Ann Holl, p roperty m anager for

Esperanté Corporate Center (Esperanté); Richard Greene, AICP, the

City ' s d irector of Dev elopment Services; Scott Kelly, a ssistant

c ity a dministrator; Michael Eschmann, presented as an expert in

the area of property appraisal and market valuation; Cecelia

Ward, AICP, accepted as an expert in comprehensive planning and

zoning. Lakeview ' s Exhib its 1, 12, 18, 20, 21, 24 through 26,

29, 39(A through E), 41, 48, 50, and 52 were received in

evidence.

The City presented the testimony of Richard Greene, AICP;

Ana Maria Aponte, AICP, the City ' s u rban d esigner; Eric McClellan

from the County; Alex Hanse n; Larry Hymowitz from the Florida

Department of Transportation (FDOT); David W. Depew, Ph . D . ,

accepted as an expert in comprehensive planning; and Douglas

Whitney, certified real estate appraiser. The City ' s Exhibits 3

through 8, 11, 13, 14, 16, 22 throu gh 25, 27 through 30, 32

through 34, and 37 were received in evidence. Also, Joint

Exhibits 1 through 30 were received in evidence.

Post - hearing motions designating and cross designating

portions of depositions were authorized and were ruled on by

separ ate O rder. Lakeview filed a motion to reopen the evidence

that was denied by separate O rder.

The four - volume hearing T ranscript was filed with DOAH on

November 26, 2018. The parties ' proposed recommended orders were

timely filed and have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

The Parties and Standing

1. Lakeview is a Delaware limited liability company,

registered with the State of Florida. Lakeview owns Esperanté, a

20 - story office tower at 222 Lakeview Avenue wi thin the

boundaries of the OBD. Lakeview submitted oral and written

objections to the City during the process leading to adoption of

the OBD Amendment. Lakeview ' s concerns included impact to views

of the Intracoastal Waterway by potential development of a

25 - story office tower to the east of Esperanté at the location

referred to as the " church site, " as well as increased traffic

congestion on Lakeview Avenue. Lakeview is an affected person

under section 163.3184(1)(a).

2. The Town is a Florida municipa l corporation and a home

rule charter municipality. The Town owns property within the

City, including its public works facility in close proximity to

the OBD. The Town submitted oral and written comments,

recommendations, and objections to the City durin g the adoption

process for the OBD Amendment. The Town is an adjoining local

government to the City. The Town was concerned that the OBD

Amendment would produce substantial impacts on the increased need

for publicly funded infrastructure by increasing th e cost of

traffic signalization on Okeechobee Boulevard and Lakeview

Avenue in the OBD. The Town is an affected person under

section 163.3184(1)(a).

3. The County is a political subdivision of the State of

Florida and a home rule charter county. The Cou nty owns property

within the jurisdiction of the City, including its convention

center and parking garage, which are located on Okeechobee

Boulevard in close proximity to the OBD. The County was

concerned that the OBD Amendment would produce substantial

i mpacts on the increased need for publicly funded infrastructure

in the form of increased cost for traffic signalization and other

active traffic management measures on Okeechobee Boulevard and on

increased cost of providing bus services. The County submit ted

oral and written comments, recommendations, and objections to the

City during the adoption process for the OBD Amendment. The

County is an affected person under section 163.3184(1)(a).

4. The City is a Florida municipal corporation located in

the Cou nty and is responsible for adopting a comprehensive plan

and plan amendments. The City adopted the OBD Amendment under

the state expedited review process in section 163.3184(3). The

City also owns a parcel within the OBD referred to throughout

this proce eding as the " tent site. "

Background

5. The OBD includes all the properties located between

Okeechobee Boulevard, Lakeview Avenue, Rosemary Avenue, and

Flagler Drive in the City ' s downtown. It is a five - block area

with the church site as its easternmost parcel.

6. The OBD is a new district within the area defined in the

Downtown Master Plan (DMP) Element of the City ' s Comprehensive

Plan (City Comp Plan). The DMP Element is an optional element of

the City Comp Plan that was adopted in 1995. The DMP ' s vi sion

includes promoting a place of sustainable and efficient

transportation systems that promote greater connectivity for

pedestrians, cyclist , and transit riders. The OBD Amendment is a

small component of the City ' s large and comprehensive strategy to

en courage mode shift within the DMP area.

7. The DMP currently sets forth 13 districts that are

described in Policy 1.1.1 and whose boundaries are depicted on

the Downtown District Map in the City Comp Plan. DMP

Policy 3.1.1 directs the City to maintain th e DMP Zoning Atlas

showing the districts from DMP Policy 1.1.1, the planning areas

and the subdistricts.

8. The OBD is also located within the Downtown

Transportation Concurrency Exception Area (TCEA) established in

Objective 2.3.5 of the Transportation E lement in the City Comp

Plan. The Downtown TCEA is also adopted in the County ' s

Comprehensive Plan (County Comp Plan) , and the TCEA boundaries

are coterminous with the DMP area. The City entered into an

agreement with the County and FDOT in 1998 regardin g the TCEA.

Adoption of the TCEA meant that the City, the County, and FDOT

acknowledged that in order for desired development and

redevelopment to occur in the City ' s downtown area, it would be

difficult for certain roadways to continue to meet the adopte d

level of service standards. Thus, the City was exempted from

meeting transportation concurrency requirements and traffic

perfor mance standards in the TCEA.

9. A Florida Standard Urban Transportation Modeling System

(FSUTMS) traffic analysis of the area that was done prior to

adoption of the TCEA ultimately established the required

residential and nonresidential development ratios described in

Transportation Element Policy 2.3.5(h). The development ratios

required the City to have both residential and n onresidential

space in the downtown area. The City achieved the projection

for residential units set forth in Transportation Element

Policy 2.3.5(g), but has approximately five million square feet

more of nonresidential space available to reach the stated

projection for nonresidential space.

The OBD Amendment

10. On April 30, 2018, Gabe Klein, a consultant for the

City, presented the Downtown Mobility Plan to the m ayor and c ity

c ommission. The workshop was open to the public and televised on

the City ' s website. At this workshop, the Mayor initiated the

process for pursuing the OBD Amendment.

11. The City then timely sent its executive summary of the

proposed OBD Amendment to the Interlocal Plan Amendment Review

Committee (IPARC) Clearinghouse on May 3 , 2018. On May 7, 2018,

the Clearinghouse provided notice (IPARC Notice) of the OBD

Amendment to the Town and the County under the terms of the

Interlocal Agreement that established the IPARC.

12. On May 21, 2018, by Resolution No. 134 - 18, the City

Commi ssion adopted the Downtown Mobility Plan, along with the

Okeechobee Corridor Study, Downtown Parking and Transportation

Demand Management Study, and the Citywide Bicycle Master Plan.

13. In addition to the IPARC Notice, the City provided

notice to both th e County and Lakeview by mail and published

required notices in the newspaper.

14. Counsel for Lakeview presented oral comments regarding

the OBD Amendment at the City ' s Planning Board meeting on May 15,

2018; at the Downtown Action Committee (DAC) meetin g on June 13,

2018; at the transmittal hearing on June 18, 2018; and at the

adoption hearing on August 13, 2018.

1 5. County representatives made oral comments at the

transmittal hearing on June 18, 2018, and the adoption hearing on

August 13, 2018. A Tow n representative made oral comments at the

adoption hearing on August 13, 2018.

16. The Ordinance reflected the City ' s continuing policy of

seeking to attract high - intensity office uses to consolidate the

area as an economic center of downtown, with innov ative high - rise

buildings and an active pedestrian environment. The Ordinance

further allowed for the creation of incentives to permit building

heights to increase from five stories to 25 stories in the OBD 5

subdistrict without increasing the permitted f loor area ratio

(FAR) of 2.75.

17. The Ordinance amended the City Comp Plan ' s DMP Element

to identify the location, development capacity , and height

allowed within the OBD. DMP Policy 1.1.1 was amended to create

the OBD. DMP Policy 3.1.3 was amended to show maximum

development capacity, subdistrict boundaries and incentive areas

for the OBD.

18. The text added to DMP Policy 1.1.1 stated:

N. Okeechobee Business District: The

Okeechobee corridor is the traditional

business district of downtown, around which

office buildings have historically located.

The focus of the Okeechobee business district

should be towards attracting high intensity

office uses to consolidate the area as an

economic center of downtown, with innovative

high - rise buildings and an a ctive pedestrian

environment. The district shall function as

a connection between the north and south

portions of the City, with enhanced

pedestrian crossings and a large percentage

of public open spaces.

Intensity and Density

19. The OBD Amendment di d not increase development

intensity or density. In fact, the OBD Amendment reduced the

allowable development within the Okeechobee Corridor. The

evidence established that the FAR of 2.75 on the church site

remained the same with the OBD Amendment.

20. Ms. Aponte is in charge of overseeing the development

and implementation of the DMP. She testified that prior to

adoption of the OBD Amendment, the FAR on the church site was

2.75 and that the church site property could have been developed

to accommodate approximately 300,000 square feet of usable office

space and provide parking on site. With the same FAR of 2.75

after adoption of the OBD Amendment, the church site ' s

development capacity remained the same.

21. Ms. Aponte also concluded that from a plan ning

perspective, since the development capacity at the church site

remained the same before and after the OBD Amendment , and the use

did not change, there would not be additional traffic impacts.

22. Mr. Greene explained that the OBD Amendment would

actu ally reduce the development capacity on the tent site and

that all other blocks in the OBD would retain the same

development capacity as before the OBD Amendment. Since there

was a reduction in the actual development capacity within the

OBD, there was not an increase in intensity. Mr. Greene and/or

his staff explained the reduction in development capacity in the

OBD at all four public hearings and in many telephone

conversations with staff from the County and the Town.

23. The tent site is located within the City Place

Development of Regional Impact (DRI) that holds certain

development rights. Sites located within the DRI may use the

DRI ' s development rights on a " first come, first serve " basis

until they are exhausted. Reducing capacity on the tent sit e

would allow another site within the DRI to use those development

rights. This would shift development away from the Okeechobee

Corridor in the OBD to another site within the DRI.

24. The City proved that the OBD Amendment did not increase

development i ntensity or density. The City credibly established

that the OBD Amendment reduced the allowable development within

the OBD.

Petitioners ' Objections

25. The Petitioners jointly presented their cases during

the hearing. They argued that the OBD Amendment was not " in

compliance " because it created internal inconsistencies within

the City Comp Plan, it was not supported by relevant and

appropriate data and analysis, it was not properly coordinated

with the neighboring local governments, it was not coordinate d

with the comprehensive plans of the Town and the County, and it

was a de facto future land use plan amendment.

26. Each argument is generally addressed below. However,

the major underlying premise of the Petitioners ' challenge was

that the OBD Amendmen t would allow more intense development and

that the City had not evaluated potential impacts to traffic and

parking. As found above, the City proved that the OBD Amendment

did not increase development intensity or density. Thus, the

City did not need to evaluate the traffic impacts of the OBD. In

addition, the City was exempted from meeting transportation

concurrency requirements and traffic performance standards in the

TCEA.

Internal Consistency

27. The Town and County identified elements in the City

Comp Plan in order to argue internal inconsistency. Those were

the Coastal Management Element, Intergovernmental Coordination

Element, and Transportation Element. The Town and County also

claimed the OBD Amendment was inconsistent with the Strategic

Regi onal Policy Plan.

28. Lakeview claimed the OBD Amendment was inconsistent

with the entire City Comp Plan generally, and specifically

inconsistent with the vision of the DMP Element, DMP Policies

3.1.3 , 1.1.1.H , and 1.1.1.M ; Future Land Use Policy 1.1.7 ;

T ransportation Element Policy 2.3.1(a), Objective 2.3.4, Policies

2.3.5(a) and 2.3.5(h) ; and Intergovernmental Coordination Element

Objectives 1.1, 1.2, 1.3 , and 1.4, Policies 1.3.1, 1.3.3, 1.3.4,

and 1.5.3.

29. The Petitioners argued that " high - rise Class A "

buildings must be built in the Quadrille Business District (QBD)

described in DMP Policy 1.1.1.H. However, the DMP Element does

not limit tall buildings to the QBD. For example, a maximum

height of 30 stories is allowed in the Quadrille Garden Distri ct,

25 stories in the QBD, and 15 stories in the Transit Oriented

District and Flagler Waterfront District.

30. During the hearing, Mr. Greene narrated drone footage

that showed high - rise buildings are located throughout the

downtown area , including in an d near the OBD in the Okeechobee

Corridor. Two residential towers that are 32 stories in height

are also located along the waterfront in the Flagler Waterfront

District. The evidence supported the description in the OBD that

" [t]he Okeechobee corridor is the traditional business district

of downtown, around which office buildings have historically

located. "

31. The evidence also established that the tallest

buildings in the downtown are not located in the QBD. The City

Comp Plan does not prohibit high - r ise buildings in districts

other than the QBD.

32. Lakeview ' s witness , Ms. Ward , opined that creation of

the OBD conflicted with the intention of the Flagler Waterfront

District to preserve waterfront views and its function as a

transition from more inten se development in the urban core of

downtown. The evidence showed that these intentions can be

realized with creation of the OBD. The OBD ' s implementing

regulations adopted at the same time as the OBD Amendment as

changes to the DMP Urban Regulations req uired that any

development be set back 400 feet from the Intracoastal Waterway

and that open space be increased. This would maintain an open

space promenade along Flagler Drive.

33. The County argued that the OBD Amendment conflicted

with Policy 1.2 - m of its Transportation Element, which provides

in part: " Based on the results of the traffic monitoring report,

the City will pursue strategies including, but not limited to

. . . develop a centrally - managed system of strategically located

parking facilities . " The same language is found in the

Transportation Element of the City Comp Plan in Policy 2.3.5(a).

34. Contrary to the County ' s argument, the OBD Amendment in

no way prohibited or directed the location of centrally - managed

parking garages. The OBD Am endment complemented the many

strategies referenced in Policy 1.2 - m and Policy 2.3.5(a) by

promoting public transit services, encouraging transportation

mode options, and implementing employer - based Transportation

Demand Management (TDM) activities.

35. T he evidence established that parking requirements for

any developments within the DMP, including the new OBD, complied

with the provisions of DMP Element Objective 4.3 and the

implementing DMP Urban Regulations. DMP Objective 4.3 states

that " [t]he City s hall develop strategies to manage the downtown

parking supply and demand. "

36. Lakeview argued that Exhibit 3 to the Ordinance showed

two Okeechobee Business subdistricts but did not list the other

subdistricts that were created under the OBD, specificall y

OBD - 12CP. Mr. Hansen explained that OBD - 12CP is contained within

the City Place DRI, which was amended by the adoption of a

separate Ordinance No. 4782 - 18 and is not subject to review in a

comprehensive plan challenge.

37. At the hearing, the County and Town withdrew their

claim relating to conflict with the Coastal Management Element.

In an abundance of caution, the City presented evidence and

established that the OBD is not in a coastal high hazard area.

38. The Treasure Coast Regional Planning C ouncil (Treasure

Coast) is the regional planning council that reviewed the City ' s

OBD Amendmenteasure Coast ' s review and comments were limited

to any adverse effects on regional resources or facilities

identified in the Strategic Regional Policy Plan, and any extra -

jurisdictional impacts that would be inconsistent with the

comprehensive plan of any affected local government within the

region.

39. Based on the City ' s staff report for the OBD Amendment,

Treasure Coast found that the maximum development potential of

property, as expressed by FAR, did not increase as a result of

the creation of the OBDeasure Coast found no adverse effects

on regional resources or facilities and no extra - jurisdictional

impacts resulting from creation of the OBD.

40. T he Petitioners did not present any evidence that would

establish the OBD Amendment was not consistent with the

requirements of the Strategic Regional Policy Plan.

41. The Petitioners did not prove beyond fair debate that

the OBD Amendment conflicted with the policies, goals , and

objectives of the City Comp Plan or the County Comp Plan.

Data and Analysis

42. The City Commission adopted the Downtown Mobility Plan

(Mobility Plan), along with the Okeechobee Corridor Study,

Downtown Parking and Transportation Demand Management Study and

the Citywide Bicycle Master Plan. The various studies that make

up the Mobility Plan included data relating to mode shift,

walkability, mobility, circulation on Okeechobee Boulevard,

economic growth in the downtown, and TDM in itiatives.

43. The Mobility Plan created a vision of desired outcomes,

goals, a mode hierarchy, a mode - shift goal, and a series of

proposed projects and strategies to improve mobility, not only

along the Okeechobee Corridor, but also the entire downtown. The

plan estimated needs in 2040 based on jobs and population rates

and provided specific proposed projects that could be implemented

to manage future growth in the entire downtown. The study

specifically included streets within the OBD and was , therefor e ,

relevant data and analysis that supported the OBD Amendment.

44. The Okeechobee Corridor Study looked at the needs,

capacity , and characteristics along Okeechobee Boulevard , all of

which are related to the OBD.

45. The Downtown Parking and Transportat ion Demand

Management Study provided an audit of the parking in the downtown

area. The study supported adoption of the OBD Amendment since

the OBD is an area included within the overall parking demand

study.

46. The Citywide Bicycle Master Plan included an analysis

of bike facilities and bike lanes along and accessing the OBD.

It discussed the existing transit network in the Okeechobee

corridor, obstacles, and the need for modification to some of the

street systems to achieve the Bicycle Master Plan ' s lo ng - term

goals of producing a connected series of trails.

47. The City also relied upon traffic count data for

Okeechobee Boulevard produced by the County. In addition to the

County ' s traffic count data, the City relied on an FDOT analysis

dated June 7, 2 018, which showed existing conditions before and

after the Brightline train service began and which revealed that

there were no intersections on the relevant portions of

Okeechobee Boulevard that were failing. The City Commission also

reviewed data concer ning trolley ridership and skybike ridership.

48. There were numerous other data and analyses that

existed at the time of adoption of the OBD Amendment that

supported the City ' s action in adopting the amendment including:

a. The Economic Impact Analysis of the OBD by Fishkind &

Associates, which found that the City ' s Class - A office market is

underserved, that the City ' s market has a vacancy rate far below

average for business districts in Florida or the United States,

that a new Class - A office building in the OBD is likely to have a

beneficial impact on the City ' s office market, that the OBD could

create 1,000 new high - wage jobs and create additional demand for

residential housing, that a new Class - A office building would

likely generate $1 million in tax revenue for the City, and that

approval of the OBD would not have a detrimental impact on

surrounding Class - A offices.

b. The West Palm Beach Downtown Walkability Analysis

specifically stated that certain streets, most notably the state -

owned Okeechobee Boulevard and Quadrille Avenue, are considered

" downright hazardous " to pedestrians. Dr. Depew explained that

the study was relevant to the OBD Amendment because it explained

how the City could get people out of their personal automobiles

and move them i nto an urban environment in different modes of

transportation, which is consistent with the TCEA ' s aim to have

more people living and working downtown. The City has adopted

the walkability study in the Transportation Element Policy

2.4.4(a) of the City Co mp Plan.

c. The FDOT District 4 Road Safety Audit Report was

intended to look at the performance of existing or future road

intersections, including the intersection of Okeechobee Boulevard

and Florida Avenue and Rosemary Avenue, to determine how the area

itself could be made safer for pedestrians, provide alternative

means of transportation, and reduce conflicts between

pedestrians, bicycles, and vehicles in the area.

d. The Transit Choices Report Sketch Alternatives

contained data related to populatio n and employment trends in the

downtown area and alternatives for transit in the downtown area.

It provided options, alternatives, and recommendations that

included a portion of the OBD area. The report contained a map

related to the mobility plan and sh ifting transit services to a

new downtown site as a potential for future consideration within

the OBD. It also referenced the Okeechobee Boulevard Corridor

Study.

e. The West Palm Beach Economic Development Study by

Avalanche evaluated economic and demog raphic data, assessed the

City ' s business climate, analyzed visitor trends, analyzed real

estate trends, and reviewed economic development assets and

programs in the City. With regard to infrastructure and real

estate, the study found that Class A office space was in high

demand, that office vacancy rates have been falling since 2011,

and that the potential OBD would allow the City to increase

in - demand Class A office product in a prime downtown location.

f. The appraiser report by Aucamp, Dellenback and Whitney

concluded that the proposed OBD would not have an adverse effect

on property values for the downtown - at - large, no adverse effect

on property values for nearby residential buildings, and no

adverse effect on property values for nearby office buildin gs.

g. The Palm Beach Metropolitan Planning Organization (MPO)

2040 Long Range Transportation Plan included growth forecasts

regarding population and employment (population growth at 35

percent and employment growth at 56 percent by 2040), which

Dr. Depew looked at to confirm that the materials in other

reports he reviewed were accurate.

49. The City did not perform a site - specific traffic impact

study because it was exempt under the TCEA , and there was a

reduction of development intensity within the Okee chobee

Corridor. Dr. Depew opined that the proposed OBD Amendment did

not require a traffic impact study.

50. The Petitioners argued that the various surveys,

studies, and reports did not expressly refer to the OBD and the

OBD Amendment. However, sectio n 163.3177(1)(f) does not require

creation of a plan amendment prior to conducting studies and

gathering data to support it. In fact, a plan amendment is

usually the reaction to surveys, studies, community goals and

vision, and other data.

51. The data a nd analyses relied on by the City were

prepared by recognized professionals using professionally

accepted methodologies and sources. The City ' s reaction to the

data and analyses was appropriate.

52. The Petitioners did not prove beyond fair debate that

t he OBD Amendment was not supported by relevant data and analysis

or that the City did not react appropriately to the data and

analysis.

Intergovernmental Coordination

53. The County, Town, and City entered into the

Comprehensive Plan Amendment Coordinate d Review Interlocal

Agreement , dated October 1, 1993 (Interlocal Agreement) , to

comply with the intergovernmental coordination requirements of

chapter 163.

54. The Interlocal Agreement established a countywide

coordinated review process designed to provid e cooperation

between affected local governments and opportunities to resolve

potential disputes within the plan amendment process with the

least amount of infringement upon existing processes.

55. The Interlocal Agreement established the IPARC

Clearingho use. Local governments are obligated to provide the

Clearinghouse with an executive summary and hearing information.

56. The City timely sent its executive summary to the

Clearinghouse , and the Clearinghouse provided notice of the OBD

Amendment to the To wn and the County.

57. The Interlocal Agreement provided that a written notice

of intent to object may be filed by a participating local

government and must be filed no later than 15 days before the

transmittal hearing. Once filed, a meeting is required between

the jurisdictions, a fact - finding panel is established, an

opinion letter is issued, and conflict resolution is available as

provided under Article X.

58. The Town signed the Interlocal Agreement. It also

adopted Policy 1.1.3 in the Intergovernme ntal Coordination

Element (ICE) of its Comprehensive Plan requiring it to

cooperate with all other local governments in a voluntary

dispute resolution process for the purpose of facilitating

intergovernmental coordination.

59. The County also signed the I nterlocal Agreement. In

the County ' s ICE, it too recognized the intergovernmental review

process established under the Interlocal Agreement.

60. The County and Town did not present any evidence that

they filed notices of intent to object to the OBD Amend ment

15 days prior to the transmittal hearing as required by the

Interlocal Agreement.

61. In addition to the IPARC Notice, the City provided

notice to both the County and Lakeview by mail and published

required notices in the newspaper.

62. Mr. Green e a nd Ms. Aponte spoke with John Lingren from

the Town about the OBD Amendment. During that conversation, the

purpose of the amendment was clarified, development capacity was

discussed, and it was explained that the amendment did not

increase development cap acity on the corridors and did not change

the uses. Ms. Aponte and Mr. Hansen also spoke with

Mr. Mohyuddin, a principal planner from the County , and clarified

that the City was not modifying development capacity and that

there was no effect on traffic in the corridor. Mr. Hansen also

spoke to Jorge Perez, a senior urban designer with the County,

regarding the plan amendments.

63. The FDOT sent a findings letter to the City after

reviewing the OBD Amendment. Following receipt of the letter,

Mr. Greene c ommunicated with Larry Hymowitz, the FDOT

transportation planner who prepared the letter. After reviewing

information provided by Mr. Greene, Mr. Hymowitz testified that

he no longer believed that there were adverse impacts to

transportation facilities an d no longer had concerns about

the data and analysis used to support the OBD Amendment.

Mr. Hymowitz stated that he considered this type of communication

to be intergovernmental coordination.

64. The City also received letters from the Petitioners and

he ard public comment made by the Petitioners ' representatives at

the public hearings before making its final decision to adopt the

OBD Amendment.

65. The Petitioners did not prove beyond fair debate that

the City did not comply with the intergovernmental co ordination

requirements of the Comp Plans of the County, Town, or City, or

of chapter 163.

De Facto Future Land Use Plan Amendment

66. The Petitioners argued that the OBD Amendment conflicts

with the Future Land Use (FLU) Element and is a de facto future

land use plan amendment. On its face, the Ordinance amended the

City ' s DMP Element, not the City ' s Future Land Use Map (FLUM).

67. The only FLU designation for the entire DMP area is the

Urban Central Business District. The OBD Amendment did not

change the FLUM since the designation remains Urban Central

Business District.

68. DMP Element Policy 3.1.3 stated that the City would

establish zoning designations , and specifically indicated that

Table DMP - 1 identified the maximum FAR and maximum height allo wed

within each zoning subdistrict by right and with incentives.

69. The City ' s illustrative zoning maps included in the DMP

Element were reviewed in the past by the state land planning

agency and were accepted as part of the DMP Element, not as a

part of the FLU Element or FLUM.

70. The Petitioners ' argument is an attempt to challenge

the status quo by claiming that the OBD Amendment is part of a

change to or in conflict with the FLU Element when no change to

the FLUM has occurred. The City ' s interp retation of its Comp

Plan is reasonable.

Ultimate Findings

71. The Petitioners did not prove beyond fair debate that

the Ordinance is not in compliance. All other contentions not

specifically discussed have been considered and rejected.

72. The City ' s d etermination that the Ordinance is in

compliance is fairly debatable.

CONCLUSIONS OF LAW

Standing

73. To have standing to challenge or support a

comprehensive plan amendment under section 163.3184(1)(a), a

person must be an " affected person, " which is d efined as a person

owning property, residing, or owning or operating a business

within the boundaries of the local government, and who made

timely comments to the local government regarding the amendment.

74. The Petitioners are affected persons under sec tion

163.3184(1)(a).

Burden and Standard of Proof

75. As the challengers, the Petitioners have the burden of

proof.

76. The plan amendment being challenged " shall be

determined to be in compliance if the local government ' s

determination of complianc e is fairly debatable. " See

§ 163.3184(5)(c)1 . , Fla. Stat. (2018).

77. The term " fairly debatable " is not defined in

chapter 163. However, the Supreme Court of Florida has held that

" if reasonable persons could differ as to its propriety, " a

planning ac tion must be upheld. See Martin Cnty. v. Yusem ,

690 So. 2d 1288, 1295 (Fla. 1997). As another 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 govern ment ' s] decision was anything but ' fairly

debatable. ' " Martin Cnty. v. Section 28 P ' ship, Ltd. , 772 So. 2d

616, 621 (Fla. 4th DCA 2000).

78. The standard of proof to establish a finding of fact is

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

(2018).

79. An affected person challenging a plan amendment must

show that the amendment is not " in compliance " as defined in

section 163.3184(1)(b). " In compliance " means consistent with

the requirements of sections 163.3177, 163.3178, 163.3180,

1 63.3191, 163.3245, and 163.3248.

80. A compliance determination is not a determination of

whether a comprehensive plan amendment is the best approach

available to the local government for achieving its purposes.

Martin Cnty. Land Co. v. Martin Cnty. , C ase No. 15 - 0300GM at

¶ 149 (Fla. DOAH Sept. 1, 2015; Fla. DEO Dec. 30, 2015).

81. " In a compliance determination, the motives of the

local government are not relevant. " Pacetta, LLC v. Town of

Ponce Inlet , Case No. 09 - 1231GM (Fla. DOAH Mar. 20, 2012; Fla .

DEO June 19, 2012).

Internal Consistency

82. 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.

83 . The Petitioners did not prove beyond fair debate that

the OBD Amendment was inconsistent with any goal, objective, or

policy of the City Comp Plan.

Data and Analysis

84. 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 adop tion of the . . . plan

amendment at issue. " The question of whether one methodology

used in data collection is better than another cannot be

evaluated. See § 163.3177(1)(f)2 . , Fla. Stat. (2018).

85. The data which may be relied upon in this proceeding i s

not limited to the data identified or used by the local

government. All data available to the local government and in

existence at the time of adoption of the p lan a mendments may be

presented. See Zemel v. Lee Cnty. , 15 F.A.L.R. 2735 (Dep ' t of

Cmty. Af f . 1993), aff ' d , 642 So. 2d 1367 (Fla. 1st DCA 1994).

86. Relevant analyses of data need not have been in

existence at the time of adoption of a plan amendment. Data

existing at the time of adoption may be analyzed through the time

of the administrative hearing. Id.

87. There is no statutory requirement that a local

government delay adoption of amendments to its comprehensive plan

based upon pending studies by other agencies or jurisdictions.

88. Data supporting an amendment must be taken from

professi onally accepted sources. See § 163.3177(1)(f)2 . , Fla.

Stat. (2018). However, local governments are not required to

collect original data. Id.

89. The Petitioners did not prove beyond fair debate that

the OBD Amendment was not based on relevant and appr opriate data

and an analysis by the City.

Intergovernmental Coordination

90. Section 163.3184(3)(b)1 . through 3 . requires

intergovernmental coordination among the state, county , and

municipal governments. Such coordination includes notice of

transmittal of the amendment and the ability of the

intergovernmental agencies to make comments. Under the statute,

a county ' s comments are limited to the context of the

relationship and the effect of the proposed amendment on the

county plan. Similarly, a municipa lity ' s comments are limited to

the context of the relationship and the effects of the proposed

amendment on the municipality plan.

91. Section 163.3177(4)(a) requires coordination of the

local comprehensive plan with the plans of adjacent

municipalities and the County.

92. The Petitioners did not prove beyond fair debate that

the OBD Amendment was adopted by the City without the required

intergovernmental coordination.

De Facto Future Land Use Plan Amendment

93. The Petitioners argued that the OBD Ame ndment conflicts

with the FLU Element and is a de facto future land use plan

amendment. The only FLU designation for the entire DMP area is

the Urban Central Business District. The OBD Amendment did not

change the FLUM since the designation remains Urban Central

Business District.

94. DMP Element Policy 3.1.3 stated that the City would

establish zoning designations. As such, the City ' s illustrative

zoning maps included in the DMP Element were reviewed in the past

by the state land planning agency and were accepted as part of

the DMP Element, not as a part of the FLU Element or FLUM. See

Dibbs v. Hillsborough Cnty. , Case No. 12 - 1850GM (Fla. DOAH

Apr . 22, 2013; Fla. DEO Dec. 10, 2013)( " The ALJ correctly noted

that the state land planning agency has cons istently followed the

principle that existing plan provisions that were previously

determined to be in compliance and that are not amended are not

subject to review or challenge in a subsequent plan amendment

proceeding. " ).

95. The Petitioners ' argument i s an attempt to challenge

the status quo by claiming that the OBD Amendment is part of a

change to or in conflict with the FLU Element when no change to

the FLUM has occurred. See Id.

Review of the Land Development Regulations

96. Amendments to a compr ehensive plan , even though

combined with a rezoning application, must be considered separate

and apart from the rezoning request. Martin Cnty . v. Yusem ,

690 So. 2d at 1288, 1293 - 94. The Petitioners ' reliance on Payne

v. City of Miami , 52 So. 3d 707 ( Fla. 3d DCA 2010) is misplaced.

Payne indisputably involved a site - specific, private application

for a small - scale amendment to the FLUM of Miami ' s Comprehensive

Neighborhood Plan to change the land use of a commercial boatyard

and marina from industrial and general commercial to restricted

commercial. Id. at 710. Significantly, the majority

acknowledged that land use planning and zoning are separate

issues , which " generally must be considered separately, even when

amendments to both are presented together. " Id. at 721 - 722. The

exception was made in Payne because the c ourt concluded that

" because both requests were tied together, and the zoning

amendment was the driving force and was essential to obtaining

the land use amendment, the zoning amendment cannot be ignored in

this case. " Id. That is not the case here.

97. The Petitioners ' arguments regarding the DMP Urban

Regulations that were changed by separate ordinance seemed more

directed toward claiming that the regulations were inconsistent

with the Cit y Comp Plan, which was not an issue for this " in

compliance " proceeding. See § 163.3213, Fla. Stat. (2018).

Summary

98. The City ' s determination that the Ordinance is in

compliance is fairly debatable.

99. The Petitioners did not prove beyond fair deba te that

the Ordinance is not in compliance.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Economic Opportunity

enter a final order finding the OBD Amendment adopted by the City

by Ordinance No. 4783 - 18 " in compliance, " as defined by section

163.3184(1)(b), Florida Statutes (2018) .

DONE AND ENTERED this 26th day of December , 2019 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Adminis trative 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 26th day of December , 2018 .

COPIES FURNISHED:

Nathan E. Nason, Esquire

Nason, Yeager, Gerson,

White & Lioce, P.A.

3001 PGA Boulevard

Palm Beach Gardens, Florida 33410

(eServed)

John Kenneth Rice, Esquire

Nason, Yeager, Gerson,

White & Lioce, P.A.

750 Park of Commerce Boulevard

Boca Raton, Florida 33487

(eServed)

Terrell K. Arline, Esquire

Terrell K. Arline, Attorney

at Law, Company

1819 Tamiami Drive

Tallahassee, Florida 32301

(eServed)

Kimberly L. Rothenburg, Esquire

K. Denise Haire, Esquire

City of West Palm Beach

401 Clematis Street , 5th Floor

West Palm Beach, Florida 33401

(eServed)

Peter Penrod, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Cissy Proctor, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Stephanie Webster, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.