20-000190GM Magaly L. Gordo vs. City Of Sunny Isles Beach, Florida, A Political Subdivision Of The State Of Florida Status: Closed Recommended Order on Friday, September 3, 2021.

Summary: Petitioner did not prove beyond fair debate that the City's Plan Amendments were not "in compliance."

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M AGALY L. G ORDO ,

Petitioner ,

vs. Case No. 20 - 0190GM

C ITY OF S UNNY I SLES B EACH , F LORIDA , A

P OLITICAL S UBDIVISION OF T HE S TATE OF

F LORIDA ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was held on June 8 and 9, 2021, via

Zoom videoconference , before the Honorable Francine M. Ffolkes,

Administrative Law Judge of the Division of Administrative Hearings

( DOAH ).

A PPEARANCES

For Petitioner Magaly Gordo:

Ralf Gunars Brook e s, Esq uire

Ralf Brookes Attorney

Suite 107

1217 East Cape Coral Parkwa y

Cape Coral, Florida 33904

For Respondent City of Sunny Isles Beach:

Gregory Thomas Stewart, Esq uire

Elizabeth Desloge Ellis, Esq uire

Nabors, Giblin & Nickerson, P.A.

Suite 200

1500 Mahan Drive

Tallahassee, Florida 32308

Valerie Vicente, Esq uire

Nabors, G iblin & Nickerson, P.A.

Suite 1000

8201 Peters Roa d

Plantation, Florida 33324

S TATEMENT O F T HE I SSUE

The issue to be determined in this case is whether two amendments to the

Sunny Isles Bea c h Comprehensive P lan (Comp Plan) , adopted by Ordinance

Nos. 201 9 - 549 and 2019 - 550 ( Plan Amendments) on December 19, 201 9 , are

" in compli a nce , " as that te r m is defined in s ection 163.3184(1)(b), Florida

Statutes.

P RELIMINARY S TATEMENT

On December 19, 2019 , the City of Sunny Isles Beach (City) adopted t wo

Plan Amendmen t s . The Plan Amendments pr ov ided tex t - based amendments

that created a Town Center South District Overlay ( Town Center South ) , a

Town Center North District Overlay (Town Center North), and amend ed the

density and intensity in Town Center Sout h . The Plan Amendments also

amend ed the Future Land Use Map ( FLUM ) to refl e ct the Town Center North

and Town Center South o verlays and amend ed the la n d use designat i ons for

certain Town Center South properties .

On January 17, 2020, Petitioner , Magaly Gordo (Petitioner) , filed a

Petition for Administrative Hearing w ith DOAH challenging the Plan

Amendments . Petitioner alleged that the Plan Amendments: (1 ) were not

supported by relevant and appropriate data and analysis; (2) were internally

inconsistent with the existing Comp P lan; (3) fail ed to discourage urban

sprawl; (4) created the Town Center South d istrict as a new land use

category; and (5) sh ould not have been reviewed under the state expedited

review process . P rior to the hearing, Petitioner filed a notice striking the

urban sprawl allegation. The parties filed their Amended Joint Prehearing

Stipulation on June 2, 2021.

At the hearing, Petitioner presented the expert testimony of Daniel

Trescott, of Trescott Planning Solutions, LLC, and Petitioner testified on her

own b ehalf. Joint Exhibits 1 through 23 were admitted into evidence.

Petitioner' s Exhibits 1 through 6, 69, 72, and 90 were admitted into evidence.

Pe titioner' s Exhibits 7 through 68, 70 , 71, 73 through 89, 91 , and 92, were

marked for identification , but were n ot admitted into evidence.

The City presented the expert testimony of Claudia Hasbun, AICP, the

City ' s planning and zoning director ; and Alex David, AICP, of Calvin,

Giordano & Associates, Inc. Respondent ' s Exhibits 6 through 9 and 23 were

admitted into evidence. Respondent ' s Exhibits 1 through 5, 10 through 22,

and 24 through 28 were marked for identification , but were not admitted into

evidence.

The three - volume Transcript of the hearing was filed with DOAH on

July 14, 2021. The parties timely submitte d proposed recommended orders on

August 12 and 13, 2021, which were considered in the preparation of this

Recommended Order.

References to the Florida Statutes are to the 20 20 version, unless

otherwise indicated.

F INDINGS OF F ACT

The following Findings of Fact are based on the stipulations of the

parties and the evidence adduced at the final hearing.

The Parties

1. Petitioner re s ides and owns p r operty withi n the City. Petitioner

provided oral comments and objections to t h e City during the period beginning

with t h e transmittal he a ring for the Plan Amendments and ending with the

adoption of the same.

2. The City is a F lorida municipal corpor a tion wi t h the authority to adopt

and amend a comprehensive plan, pursuant to s ection 163.3167.

Land Use Designations

3. The City was incorporated in 1997 . I n 2000, the City adopted its init i al

Comp P lan.

4. As part of the initial Comp Plan, the City established the Town Center

Planned Development District (Town Center) as an overlay area, which did

not establish any densities or intensities.

5. However, the Town Center overlay did contain underlying land use

designations for the area as set forth in Policy 14A and 14B of the Comp

P lan, which had established densities and intensities .

6. The Mixed - Use Bus iness la nd use category established a base density of

25 dwelling units per acre ( du/acre ) , with a maximum density of 85 du/acre

with density bonuses. Intensity was limited to a maximum of 2.0 f loor a rea

r atio ( FAR ) .

7. Community Facilities land use category established a maximum density

of 25 du/acre, with the intensity limited to a maximum 2.0 FAR.

8. Recreation Open Space land use category does not allow for

development; therefore, there is zero density and intensity.

9. In addition to the densitie s and intensities permitted for the identified

land use categories, pursuant to Policy 14C of the Comp Plan, locations

within the Town Center were designated as receiver districts for Transferable

Development Rights (TDRs). Specifically, subparagraph (c) o f Policy 14C

established the limits on the use of TDRs by providing that :

In no case [È] s hall the density or intensity

on a receiver site exceed thirty (30) percent

increase in the maximum permitted by the land

use category limitations set in Policy 15B . . .

and

. . . in no case shall the resulting density bonus

increases on any given receiver site exceed the

number of dw e lling units atta i nable on the sender

site(s) under [comprehensive plan] provisions so as

to assure NO net increase in city - wide residential

dwelling unit Comprehensive Plan capacities

occurs.

10 . Policy 1 4B of the Comp Plan set forth the Town Center ' s goals and

objectives, including:

The Town Center is encouraged to become the hub

for future urban development intensifications

around which a more compact and efficient urban

structure will evolve. The Town Center is intended

to be a moderate to high intensity design - unified

area which will contain a concentration of different

urban functions integrated both horizontally and

verti cally. The center will be characterized by

phy s ical cohesiveness, direct accessibility by mass

transit services and high quality urb a n design. The

T o wn Center is located to have d irect connections to

the 167 th Street Causeway and Collins Avenue to

ensure a high level of a ccessibility to t he northeast

Miami - Dade/bi - county area.

Background

11 . In 2004, the C i ty established t he Town Center Zoning District in its

Land D evelo p ment Regulations (LD R s), which provided a maximum FAR

of 5.2 , and a maximum density of 75 du/acre. T he intensity in the LDR s , as

reflec t ed by the FA R , exceeded the amo u nt in the Comp Plan. However, the

density in the LD R s was less than what was allowed in the Comp Plan.

12. In 2007 , the City proposed a comprehensive plan amendment that

w ould have assig n ed density and i ntensity to the Town Center Planned

Development District in its entiret y . The state land planning agency objected

to the proposed plan amendment in pa r t because of a l ack of data and

analysis related to concurrency, emergenc y service s , and hurricane

evacuation routes.

13. Beginning i n 20 0 5, the City app r oved a number of site plans for

various development projects in the southern portion of the Town Center

with underlying Mixe d - Use Business land use designations. At that time, the

City reviewed those developments solely for compliance with the City ' s LDRs

for the Town Center Zoning District and without con s ideration of the

maximum density and intensity allowable for the underlying land uses in the

Comp P l a n . A s a resul t , all the approved projects in the southern portion of the

Town Center with an underly i ng land use of M ixe d - Use Business were

permitted to be developed with intensities up to 5.2 FAR , which exceeded the

allowable intensity of 2.0 FAR set forth in the Com p Plan f o r the Mixe d - Use

Busi n ess land use category.

14. However, the densities allowed for those approved projects followed

the Comp Plan , as the maximum density for the Mixe d - Use Business land

use category was 85 du/acre, whereas the maximum density allowable in the

LDRs was 75 du/acre . Therefore, even though the City had not been eva l uating

the proposed site plans for compliance with the Comp P lan, all of the

developed projects had densities that complied with the Comp Plan.

15. In December 2018, a public hearing was conducted by the City

Commission to consider the site plan for a development known as the Infinity

Project. The proposed site for the Infinity Project was in the northern half of

the Town Center.

16. The City Commission unanimously voted to defer the matter to the

January 2019 City Commission Meeting. To date, the application for site plan

approval for the Infinity Project in the northern portion of the Town Center

has not been approved or considered by the City Commission.

17. W hile the City was considering the Infinity Project, the City became

aware of the inconsistency between its Comp Plan and its LDRs with respect

to the density and intensities within the entire Town Center area. As a

result, the City began to take actions to remedy this inconsistency.

18. In July 2019, the City Commission considered an ordinance to

transmit to the state land planning agency , the Department of Economic

Opportunity (DEO) , a text - based comprehensive plan amendment to modify

the FAR in the entire Town Center area. The City Commission voted to defer

the matter.

19. Instead, on August 28, 2019, the City Commission adopted on first

reading an ordinance establishing a 12 - month moratorium on the submission

and consideration of any zoning applica tions in the Town Center District. The

City Commission adopted the ordinance on second reading on September 19,

2019.

20. On August 28, 2019, the City Commission also adopted a resolution

declaring zoning in progress relating to development and redevelopm ent in

the Town Center Zoning District.

The Plan Amendments

21 . On October 17, 2 0 1 9 , the City Com m ission adopted on first reading

Ordinance No. 201 9 - 549, transmitting to DEO tex t - based amendments to the

Town Center District that divided the Town Center into two o verlay

developme n t districts: T o wn Center South and T own Center North.

22. The tex t - based amendments also provided for density and intensity in

the Town Center South overlay for the first tim e . Spec i fically, the max i mum

density was established at a maximum of 75 du/acre, and the intensity was

established at a maximum of 5.2 FAR. These were the same as the LDRs.

23. The Plan Amendments did not amend any portions o f Policy 14C of the

Comp Plan with respect to TDRs.

24. The purpose of these amendments was to grandfather the various

dev e lopments within Town Center South , which were previously approved

with intensities that were inconsistent with the Comp Plan.

25. C ontrary to Petitione r 's allegation , t he density of each of these

developments compli ed with the Comp Plan at the time of eachÔs approval.

2 6 . On October 17, 2 0 1 9 , the City Com m ission also adop t ed on first reading

Or d inance No. 201 9 - 5 50 , transmitting t o DEO the FLUM Plan Amendments

reflecting the creation of the Town Center South and Town Cent e r North

overlay districts , and providing for amendment of the land use designation for

certain properties located in Town Center South.

27. A mendments to land use designations for specific properties in the

Town Center South overlay area included changing the Bella Vista Park and

Gateway Park from Mixed - Use Business to Recreation and Open Space. The

Gateway Park Parking Garage changed from Recreation and Open Space to

Community Facility. The Miami - Dade County Water and Sewer Facility

chang ed from Mixed - Use Business to Community Facility. All these FLUM

changes reflected a decrease in density.

28. On October 17, 2019, the C i ty Commission passed Resolution

2019 - 3006 ( Plan of Action) , adopting a schedule to bring the City ' s LDRs into

confo r mity with the p r ovisions of the amended Comp Plan , as provided by

section 163.3194(1)(b) .

29. On October 30, 201 9 , the Florida Department of Transportation issued

a letter to Alex David, the CityÔs planning and land use consultant, advising

that it had reviewed the proposed text - based P lan A mendments and " found

that the amendment will not have an adverse impact on transportation

resources and facilities of State importance."

30. On November 15, 2 019, the South F l orida Water Mana g ement District

sent correspondence advising that there are " no regionally significant water

re s ource issues" a n d offered only technical guidan c e regarding regi o nal water

supply plannin g .

31. On November 25, 2019, the So u th Florida Regional Planning Council

f ound that the proposed P lan A mendments were generally consi s tent with

the S t rategic Regional Policy Plan for South Florida.

32. On November 22, 2019, the City ' s Mayor received correspondence from

DEO advising that it had reviewed the proposed P lan A mendments and

" identified no comment related to adverse impacts to important state

resources and facilities within the [DEO's] authorized scope of review. " DEO

did provide a technical assistance comment.

33. On December 19, 201 9 , the City C ommission adopt e d both

Ordinances on s e cond reading . DEO's technical assistance comment directed

the City to clarify that Town Center South and Town Center North were

overlay districts and not separate land use categor i es. The City incorporated

that clarification in bold text in the body of the adopted ordinance . The City

then forwarded the adoption package of Plan A mendments to DEO for its

review.

34. On December 30, 201 9 , DEO issued a letter to Mr. David advising

t hat the Plan Amendment s package was complete and would be reviewed in

accordance with s ection 163.3184(3) .

35. On January 28, 2020, DEO issued a letter to the City ' s Mayor advising

that it had completed its review " and identified no provision that necessitates

a challenge of the Ordinances adopting the amendment. "

36. Petitioner challenged the Plan Amendments on four grounds: (1) the

City failed to submit relevant and appropriate data and analysis; (2) the Plan

Amendments were internally inconsistent with the existing Comp Plan ;

(3) the Town Center South District was a new land use category; and (4) the

Plan Amendments should not have been reviewed under the expedited review

process pursuant to s ection 163.3184(2).

Relevant and Appropriate Data and Analysis

3 7 . Petitioner alle g e d that the Ci t y did not p r ov i de any data or analysis to

show it considered the impact s of alleged " mas si ve increase of density and

inte n sity in Town Cen t er South on hurr i cane evacuation times [. . .] " .

Hurricane Evacuation Times and CHHA

38. Petitioner ' s expert witness, Daniel L. Trescott, an e xpert in

comprehensive planning and hurricane evacuatio n , opined that only

incre a ses in density w ould impact hur r icane evacuation times, and that

increases in intensity would n o t adversely affect hurricane evacuation times.

3 9 . Specifically, Mr. Trescott testif i ed that if th e re was no increase in

de n sit y then , in his expert opi n ion, the Plan Amendments would not trigger

the need to evaluate the other policies and issues related to hurricane

evacuation and Coastal High Hazard Areas (CHHA).

40. Petitioner did not intr o duce any eviden ce that would support a f inding

that the Plan A m endments would a ctually increase density in Town Center

S out h . Mr. T re s cott testified t hat he did not perform an analysis that would

demonstrate potential impacts on density resulting from the P lan

Amendments.

41. Also, Petitioner did not introduce any evidence to sup p ort a finding

that the Plan Amendments would diminish future hurricane evacuation

time s , in the absence of a density increase. In fact, the undi s puted testimony

of the City's experts established that the Plan Amendments actually

decreased the net density allowed in Town Center South.

4 2 . Claudia Hasbun, the City ' s p lanning and z oning d irector, was accepted

as an expert in land use planning. Ms. Hasbun testified that the Plan

Amendments would decrease the pot e ntial maximum al l owable density in

Town Center South by 462 dwelling unit s . Ms. Hasbun ' s analysis

demonstrated that after consideration of the density provided by the Plan

Amendmen t s , including the land use changes reflected in the FLUM

amendment, there was a significant reduction in p o tential maximum

allowable density in Town Center Sout h .

43 . Ms. Hasbun testified that the net to t al number of dw e lling units th a t

could ever be developed would decrease by 462 dwelling units for Town Center

South because of the Plan Amendment s . This analysis encompasse d the

absolute maximum redevelopment potential , and still reflect ed a reduction in

density in Town Center South.

44 . Mr. Trescott confirmed that the potential maximum allowable density

that exist ed under the current Comp Plan was actually greater than would be

allowed under the Plan Amendments. H e also acknowledged that land use

changes reflected on the FLUM amendment would result in a decrease in

density within Town Center South. Therefore, the uncontroverted evidence

showed that the Plan Amendments decrease density.

45 . The City also presented the expert witness testimony of Alex David,

the planning consultant with Calvin, Giordano & Associates , Inc . Mr. David

testified that there would not be any impact on hurricane eva cuation times

resulting from the Plan Amendmen t s . The reason was that the potential

ma x imum allowable d e nsity resulting from the Plan Amendmen t s was

significantly reduced from the existing maximum potential dens i t y .

Mr. David 's testimony was un disputed, and Petitioner ' s expert witness

conceded that there would be a net decrease in maximum potentia l density

resulting from the Plan Amend m ent s .

4 6 . Mr. David testified that a map created from a 2016 Sea, Lake, and

Overland Surges for Hurricanes ( SLOSH ) computerized storm surge model

w as utilized to determine whether any portions of Town Center South were

in the CHHA . The referenced SLOSH map was incorporated into the Comp

Plan in 2016 .

4 7 . Mr. David testified that the SLOSH model does depict five very

minimal areas of Town Center South within the CHHA. However, those

areas either have an underlying land use designation of Recreation Open

Space , ca nnot be developed for residential purposes and have no density, or

they are located on parcels that have already been developed (or in one case

is currently being developed) at higher elevations . The parcels developed or

being developed at higher elevation s have the appropriate mitigation to

remove them from the CHHA. As a result, under the 2016 SLOSH model map

in the Comp Plan, none of the property affected by the Plan Amendments was

l ocated in the CHHA.

4 8 . During the hearing, Mr. Trescott suggested that the City should

utilize the map developed from the 2017 version of the SLOSH mode l , rather

than the 2016 version ado p ted in the Comp P l a n .

49 . Despite testifyi n g that the City w as required to u s e the 2017 version of

the SLOSH map, Mr. Trescott admitted that Miam i - Dade County, the entity

responsible f or emergency management, had not adopted the 2017 SLOSH

map . M r. Trescott also admitted that the S tate of Florida ha d not adopted the

2017 SLOSH map into the State ' s Emergency Plan.

5 0 . In addition, Mr. David testified that he was unaware of any

jurisdiction in Florida that had adopted the 2 017 SLOSH map . Thus, it was

reasonable for the City to rely on the d ata contained in the 2016 SLOSH map

incorporated in its Comp P la n .

5 1 . Consistent with Mr. Trescott 's testimony, since there is no increase in

density, t he Plan Amendments would not trigger the need to evaluate the

other policies and issues related to hurricane evacuation and CHHA.

5 2 . Petitioner did not prove beyond fair debate that the City failed to

provide relevant and appropriate data or analysis with respect to impact on

hurricane evacuation times . The evidence adduced at the hearing established

that such an evaluation was not required becaus e density was decreased by

the Plan Amendments . Even so, the evidence established that since density

was decreased by the Plan Amendments, hurricane evacuation times would

not be impacted, and that , pursuant to the 2016 SLOSH model map adopted

in the Comp Plan, none of the property affected by the Plan Amendment s was

l ocated within the CHHA.

Concurrency Analysis

53. Petitioner also contend ed that the City failed to submit any data or

analysis to show the impacts on sewer and water capacities,

traffic/transportation, coastal management, infrastructure , and schools.

H owever, the m emorandum incorporated into Ordinance No. 2019 - 549 clearly

demonstrate d that an analysis was conducted . The analysis determined that

the City d id meet its l evel of s ervi ce (LOS) standards for each of those areas.

54. In addition, Mr. David testified to the methodology used to analyze

concurrency for each of the areas and the conclusions reached with respect to

them. His testimony was not contradicted and demonstrate d tha t the Plan

Amendments meet the City ' s LOS standards.

55. Mr. David testified that in completing the concurrency analysis, he

utilized data based upon the existing development in Town Center South. He

opined that the methodology w as a conservative approach for evaluating

concurrency. Mr. David also testified that all the projects developed in Town

Center South had been individually and separately reviewed for concurrency

purposes during the site plan approval process.

Internal Inconsi stency

56. Petitioner allege d that the Plan Amendments were internally

inconsistent with two provisions of the City ' s existing Comp Plan. Objective

3C, which reads as follows:

The City of Sunny Isles Beach shall not increase

maximum densities and intensities in the Coastal

High Hazard Area beyond that which is permitted

in the Comprehensive Plan and Land Development

Regulations as of May 1, 2016, including bonuses

and transfer of development rights provided

therein. T he provision of facilities and services to

accomplish the timely evacuation of the City ' s

residents in advance of approaching hurricanes

shall be a priority of the Sunny Isles Beach ' s

transportation and hurricane preparedness

programs.

5 7 . The City ' s Comp Plan did not assign densities and intensities in the

Town Center Development District overlay as of May 1, 2016. However, as

previously found, the City ' s LDRs did include densities and intensities for the

Town Center as of May 1, 2016. These Plan Amendmen ts d id not increase the

densities and intensities contained in the LDRs as of that date , and therefore ,

are not internally inconsistent with the City ' s existing Com p Plan.

58. Petitioner also assert ed that the Plan Amendments were inconsistent

with Policy 5C , which provides as follows:

All planning activities pertaining to development

and redevelopment and the provision of public

services and facilities in the City of Sunny Isles

Beach shall be consistent with the "Population

Estimates and Projections" outl ined below, as they

are periodically amended and updated.

59 . During the hearing, the City introduced the 2019 population estimates

derived from the U.S. Census Bureau. The census data reflect ed that the

2019 population estimate was 21,804, which was below the 2020 estimates

set forth in Policy 5C . Further , the unrebutted testimony of the City ' s

experts, Ms. Hasbun and Mr. David, was that the Plan Amendments would

decrease the maximum potential density that could be developed in Town

Center South.

6 0 . P etitioner did not introduce any evidence that the population

estimates and projections would increase because of the Plan Amendments.

6 1 . Petitioner did not prove beyond fair debate that the Plan Amendments

were internally inconsistent with Objective 3C an d Policy 5C of the City ' s

existing Comp Plan.

New Land Use Category

6 2 . Petitioner allege d that Town Center South was a new land use

category . Petitioner reference d the comments from DEO that the City should

consider amending the F LU text to clarify that Town Center North and Town

Center South are overlay districts, not separate land use categories.

6 3 . However, the City did specifically incorporate those comments in

O rdinance No. 2019 - 549, where the word " overlay " appears in bold text to

reflect said clar ification.

6 4 . Petitioner ' s claim that the City created a new land use category called

" Town Center South " was not supported by the evidence.

Expedited Review Process

6 5 . Petitioner allege d that the City should not have proceed ed with the

expedited review process because of the City 's alleged past failures to comply

with the law.

6 6 . Section 163.3184(2) provides for an expedited review process for

adoption of comprehensive plans and amendments. The two exceptions to this

expedited review process are contained in section 163.3184(2)(b) and (c) ,

n either of which are applicable to the Plan Amendments.

6 7 . Petitioner suggest ed that the Plan A mendment s should have been

treated as an e valuation and a ppraisal r e view (EAR) under section 16 3.3191 .

However, the determination of whether the comprehensive plan should be

evaluated under this provision is the responsibility of the City. Also, the

City's last EAR was conducted in 2016, so the City is not required to perform

the analysis again until 2023.

6 8 . Petitioner failed to introduce any evidence to support a finding that

the City is precluded from proceeding pursuant to s ection 163.3184(3) .

Summary

69 . P etitioner failed to carry her burden of proving beyond fair debate that

the City of Sunny Isles Beach Plan Amendments adopted by Ordinance

No s . 2019 - 549 and 2019 - 550 on December 19, 2019 , are not in compliance, as

that term is defined in s ection 1 63.3184(1)(b) .

C ONCLUSIONS OF L AW

Jurisdiction

7 0 . DOAH has jurisdiction over the subject matter and the parties to this

proceeding under s ections 120.569, 120.57(1) , and 163.318 4 , Florida Statutes.

Standing

7 1 . To have standing to challenge a plan amendment, a person must be an

" affected person, " as defined in s ection 163.3184(1)(a). The parties stipulated

that Petitioner is an " affected person " within the meaning of the statute.

Burden and Standard of Proof

7 2 . " In compliance " means, in pertinent part, " consistent with the

requirements of sections 1 63.3177, 163.3178, 163.3180, 163 . 3191, 163.3245 ,

and 163.3248. " See § 1 63.3184(1)(b), F la. Stat.

7 3 . Petitioner bears the burden of proving beyond fair debate that the

challenged Plan Amendments are not in compliance. This means that " if

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

be upheld. See Martin C ty. v. Yusem , 690 So. 2d 1288, 1295 (Fla. 1997).

7 4 . The Plan Amendments shall be determined to be in compliance if the

local government ' s determination that the amendments are in co mpliance is

" fairly debatable. " See § 163.318 4 (5)( c ) 1 . , Fl a. Stat. The " fairly debatable "

standard mandates deference to the local government ' s disputed decision and

applies to any challenge filed by an affected person. See , e.g., Machado v.

Musgrove , 519 So. 2d 629, 632 (Fla. 3d DCA 1987) ( affÔd en banc 1988 ), rev.

den i ed 529 So. 2d 694 (Fla.1988).

7 5 . The mere existence of contravening evidence is not enough to e s tablish

that a l and planning de c ision is " fairly debatable. " It is firmly established

that:

[E]ven though there was expert testimony adduced

in support of the City ' s case, that in and of itself

does not mean that the issue is fairly debatable. If

it did, every zoning case would be fairly debatable

and the City would prevail simply by submitting an

expert who testified favorably to the City ' s position.

Of course, that is not the case. The trial judge still

must determine the weight and credibility factors

to be attributed to the experts. Here the final

judgment shows that the judge did not assign much

weight or credibility to the City ' s witnesses.

Boca Raton v. Boca Villas Corp . , 371 So. 2d 154, 159 (Fla. 4th DC A 1979).

7 6 . 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 purpose." See Martin Cty. Land Co. v. Martin

Cty. , Case No. 15 - 0300GM, at RO ¶ 149 (Fla. DOAH Sept. 1, 2015; Fla. DEO

Dec. 30, 2015).

7 7 . The standard of proof for findings of fact is a preponderance of the

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

Data and Analysis

7 8 . Section 163.3177(1)(f) requires all plan amendments to be based on

relevant and appropriate data and an analysis by the local government.

Pursuant to the statute, " [t] o be based on data means t o 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 adoption of the plan or plan

amendment at issue." § 163.3177(1)(f), Fla. Stat. "However, the evaluation

may not includ e whether one accepted methodology is better than another."

§ 163.3177(1)(f)2., Fla. Stat. While data supporting a comprehensive plan

amendment must be taken from professionally accepted sources, local

governments are not required to collect original data. Id .

79 . The data which may be relied upon in this proceeding is 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 challenged

amendments , may be presented. See Zemel v. Lee Cty ., 15 F.A.L.R. 2735 (Fla.

Dep't of Cmty. Aff. 1993)(Final Order), aff'd , Zemel v. Dep't of Cmty. Aff ., 642

So. 2d 1367 (Fla. 1st DCA 1994).

8 0 . S ection 163.3178 defines the CHHA as the " area below the elevation of

the category 1 storm surge line as established by a [ SLOSH ] computerized

storm surge model. " § 163.3178(2)(h), Fla. Stat. The statute requires each

local government comprehensive plan to designate the CHHA within its

jurisdiction and " the criteria for mitigation for a comprehensive plan

amendment in a [CHHA] as defined in subsection (8). " Id.

8 1 . Section 163.3178(8) reads, as follows:

(8)(a) A proposed comprehensive plan amendment

shall be found in compliance with state coastal

high - hazard provisions if:

1. The adopted level of service for out - of - county

hurricane evacuation is maintained for a cat egory 5

storm event as measured on the Saffir - Simpson

scale; or

2. A 12 - hour evacuation time to shelter is

maintained for a category 5 storm event as

measured on the Saffir - Simpson scale and shelter

space reasonably expected to accommodate the

residents o f the development contemplated by a

proposed comprehensive plan amendment is

available; or

3. Appropriate mitigation is provided that will

satisfy subparagraph 1. or subparagraph 2.

Appropriate mitigation shall include, without

limitation, payment of mone y, contribution of land,

and construction of hurricane shelters and

transportation facilities. Required mitigation may

not exceed the amount required for a developer to

accommodate impacts reasonably attributable to

development. A local government and a de veloper

shall enter into a binding agreement to

memorialize the mitigation plan.

8 2 . The evidence adduced at the hearing established that such an

evaluation of impact on hurricane evacuation times was not required because

density was decreased by the Plan Amendments. Even so, the evidence

established that since density was decreased by the Plan Amendments,

hurricane evacuation times would not be impacted, and that pursuant to the

2016 SLOSH model map adopted in the Comp Plan, none of the property

affected by the Plan Amendments was located within the CHHA.

8 3 . The evidence adduced at hearing demonstrated that the City analyzed

data t o show the impacts on sewer and water capacities,

t raffic/transportation, coastal management, infrastructure, and schools. The

analysis determined that the City did meet its LOS standards for each of

those areas.

8 4 . Based on the foregoing Findings of Fact, Petitioner did not prove

beyond fair debate that the Plan Amendments were not supported by

relevant and appropriate data and an analysis by the local government .

Internal Inconsistency

8 5 . 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. "If the objectives do

not conflict, they are coordinated, related, and consistent." Melzer , et al. v.

Martin Cty. , Case Nos. 02 - 1014GM and 02 - 1015GM, at RO ¶ 194 (Fla. DOAH

July 1, 2003; Fla. DCA Oct. 24, 2003). "If an amendment expressly creates an

exception or waiver to a general rule set forth in the plan, it does not create

an internal inconsistency." Id. at ¶ 195.

8 6 . B ased on the foregoing Findings of Fact, Petitioner did not prove

beyond fair debate that the Plan Amendments were in consistent with the

identified goals, objectives, or policies of the City ' s Comp Plan.

New Land Use Category

8 7 . Based on the foregoing Findings of Fact, Petitioner did not prove

beyond fair d ebate that the Plan Amendmen t s constitute d a new land use

category .

Expedited Process

8 8 . Based on the foregoing Findings of Fact, Petitioner did not prove

b eyond fair debate that the City was precluded from processing the Plan

Amendments in accordance with s ection 1 63.3184(3) . Beyond the allegations

in the p etition, Petitioner did not submit any evidence to demonstrate that

the expedited review process did not apply to these Plan Amendments. In

addition, the plain language of section 163.3184(1)(b) does not list failure to

comply with section 163.3184 itself as part of the "in compliance"

determination.

Summary

89 . The City's determination that the Plan Amendments were " in

compliance " was fairly debatable.

9 0 . Petitioner failed to carry her burden of proving beyond fair debate that

the challenged Plan Amendments were not in compliance.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Economic Opportunity enter a final

order determining that the City of Sunny Isles Beach Plan Amendments

adopted by Ordinance No s . 2019 - 549 and 2019 - 550 on December 19, 2019 ,

are " in compliance, " as that term is defined in s ection 163.3184(1)( b) .

D ONE A ND E NTERED this 3rd day of September , 2021, in Tallahassee, Leon

County, Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of September , 2021.

C OPIES F URNISHED :

Gregory Thomas Stewart, Esquire Edward A. Dion, Esquire

Nabors, Giblin and Nickerson, P.A. City of Sunny Isles Beach

Suite 200 Fourth Floor

1500 Mahan Drive 18070 Collins Avenue

Tallahassee, Florida 32308 Sunny Isles Beach, Florida 33160

Elizabeth Desloge Ellis, Esquire Valerie Vicente

Nabors, Giblin and Nickerson, P.A. Nabors, Giblin and Nickerson, P.A.

Suite 200 Suite 1000

1500 Mahan Drive 8201 Peters Road

Tallahassee, Florida 32308 Plantation, Florida 33324

Ralf Gunars Brookes, Esquire Tom Thomas, General Counsel

Ralf Brookes Attorney Department of Economic Opportunity

Suite 107 Caldwell B uilding , MSC 110

1217 East Cape Coral Parkway 107 East Madison Street

Cape Coral, Florida 33904 Tallahassee, Florida 32399 - 4128

Janay Lovett, Agency Clerk Dane Eagle, Executive Director

Department of Economic Opportunity Department of Economic Opportunity

Caldwell Building Caldwell Building

107 East Madison Street 107 East Madison Street

Tallahassee, Florida 32399 - 4128 Tallahassee, Florida 32399 - 4128

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Or der. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.