STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOUTH FLORIDA REGIONAL PLANNING ) COUNCIL, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1843DRI
)
CITY OF MIAMI, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, conducted a formal administrative hearing in this matter on March 3 and 4, 1981, in Miami, Florida. The following appearances were entered: Allan Milledge and Debbie Malinsky, Miami, Florida, appeared on behalf of the Appellant, South Florida Regional Planning Council; and Stuart L. Simon and Gerald Hoffernan, Miami, Florida, appeared on behalf of the Respondent, City of Miami.
On or about August 18, 1980, the South Florida Regional Planning Council filed a "Notice of Appeal and Petition" with the Florida Land and Water Adjudicatory Commission, pursuant to Section 380.07, Florida Statutes. The appeal was from a Development Order rendered by the City of Miami on or about July 22, 1980, pertaining to a development of regional impact known as Watson Island, an amusement theme park. The City of Miami was listed as the local government which entered the Development Order, and also as the developer. The matter was forwarded by the Florida Land and Water Adjudicatory Commission to the office of the Division of Administrative Hearings on September 29, 1980. A prehearing conference was scheduled to be conducted on November 10, 1980, and at the request of the Appellant was rescheduled for December 2, 1980. The City of Miami filed a "Motion to Dismiss Appeal," which was denied by Order entered December 3, 1980. At the prehearing conference the parties agreed to a scheduling of the final hearing to commence on March 3, 1981. The Appellant thereafter filed a "Motion to Strike Affirmative Defenses" and a "Motion for More Definite Statement" respecting matters raised by the City in its "Answer." The "Motion for More Definite Statement" was denied, and the "Motion to Strike" was granted in part and denied in part by Order entered January 21, 1981. A final prehearing conference was conducted on February 20, 1981. The Respondent at that time indicated that it was filing a suit in Circuit Court in Leon County seeking a declaration that statutory provisions governing this proceeding are unconstitutional. Respondent made a motion to stay this proceeding pending the resolution of the suit. The motion was denied by Order entered February 20, 1981. The parties filed a "Prehearing Stipulation," and therein agreed to submit the matter for decision based upon the record that had already been made in proceedings before the City of Miami and the South Florida Regional Planning Council. The parties further agreed upon what materials would be included in the record.
The final hearing commenced on March 3, 1981. At that time the parties presented by stipulation Exhibits 1 through 47, all of which were received into evidence. The "Prehearing Stipulation" was received as Hearing Officer's Exhibit A, and an index of the exhibits was received as Hearing Officer's Exhibit B. The parties agreed that these exhibits would constitute the record for the purposes of this proceeding. On March 4, 1981, members of the public at large were given an opportunity to testify with respect to the issues. The names and addresses of members of the public who testified are a part of the record as Hearing Officer's Exhibit C. A summary of their testimony is set out at Appendix II to this Recommended Order.
The parties requested a somewhat extended schedule for submitting post- hearing legal memoranda. The last of these was filed on April 27, 1981.
Exhibit 47, which had not been prepared at the time of the hearing, was filed on May 14, 1981. The record was thereupon closed.
ISSUES
The ultimate issue to be resolved in this proceeding is whether the Development Order issued by the City of Miami for development approval for the Watson Island theme park should affirmed, affirmed with conditions, or reversed. In the Prehearing Stipulation, the Appellant stated its case as follows:
The DRI Application for Development Approval (ADA) filed by the City of Miami is insufficient.
The Council, after reviewing the ADA, notified the City of its insufficiency, the City refused to submit the supplemental information requested and decided to proceed with DRI review upon this insufficient ADA. In order to fulfill its statutory duty to assess the impacts of a DRI, a regional planning agency must be provided with adequate, competent, and credible information. In this case, the SFRPC has insufficient information concerning the developer's plans, methods and technology for it to evaluate the proposed development and any resulting adverse impacts and to adequately recommend mitigative measures.
Further, an ADA is a binding document which serves as the basis for determining whether the develop- ment is constructed as approved and the ADA is therefore required to be incorporated in the Development Order. The Development Order should be set aside and the City should be directed to prepare a sufficient ADA.
The Council further contends that the adverse regional impacts of the proposed development identified by the SFRPC in its Staff Assessment
are not adequately considered and mitigated in the Development Order.
The Development Order is insufficient because of the inadequate consideration of regional impacts, the failure to incorporate the Watson Island ADA, the City's reliance upon an insufficient ADA, and the City's perfunctory dismissal of the Council's recommended changes that would make the project
eligible for approval. Further, the Resolution fails to comply with the legal requirements of Fla. Admin. Code Rule 22F-1.23 and Section 380.06, as amended by Chapter 380, Florida Statutes, in the following regards:
It does not incorporate the Development Order.
It does not authorize the City Clerk to send certified copies of the Development Order to the state land planning agency and to the COUNCIL.
It does not specify monitoring procedures and the local official responsible for assuring the develop- ment's compliance with the Development Order.
It does not establish an expiration
date for the Development Order, including a deadline for commencing physical development, for compliance with conditions of approval, and for the termination of the Order.
It does not specify the requirements for the Annual Report designated under subsection (16) of Section 380.06, Florida Statutes.
It does not specify the types of
change in the development which require a submission for a substantial deviation determination under subsection (17)(a) of Section 380.06, Florida Statutes.
For the aforementioned reasons the Council requests that the Development Order of the City of Miami Commission be set aside and the City's ADA be returned to the Council with directions to the
City to provide adequate, consistent, reliable information and proposals to mitigate the identified adverse regional impacts of the Watson Island Development.
The Respondent stated its case in the Prehearing Stipulation as follows:
That Section 380.07, Florida Statutes is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons:
That Section 380.07, Florida Statutes, is invalid for vagueness and that this hearing pursuant to said statute is, therefore, invalid for the following reasons:
The statute has no standards, guidelines or criteria upon which the Florida Land & Water Adjudicatory Commission may properly render a decision on whether the Development Order is meritorious in a quasi- judicial proceeding. The standards
set forth in Section 380.06(11)(2),
F.S. (1980) are so general, broad and vague as to be meaningless.
In terms of the constitutional validity of Section 380.06(2) and 380.10, F.S., it appears that the Legislature has sought to make a final determination of the law by concurrent resolution rather than by statute, despite the language of
Article III of the Florida Constitution. c The statute nowhere indicates which
party shall be the Plaintiff and which party shall be the Defendant, or which party shall carry the burden of proof in a de novo proceeding.
That the city filed a detailed and comprehensive application with the South Florida Regional Planning Council seeking the Council's approval of the Watson Island Project pursuant to Section 380.06, F.S.
That the City of Miami, by a Public Hearing, adopted a resolution approving and issuing a developmental order pertaining to the Watson Island Project and incorporating numerous modifications suggested by the South Florida Regional Planning Council. The procedure was in compliance with Section 360-06, F.S. and FLA. ADMIN. RULE 22 F-123.
That the Watson Island Project, as approved in the developmental order with modifications, was and is in the public interest on environmental, physical and other grounds.
That the Watson Island Project has no substantial regional impact as defined in Section 380.06(1), and
The Land and Water Adjudicatory Commission is estopped from rendering a decision since a Court in a bond validation proceeding has already determined that the Watson Island Project served a valid public purpose.
FINDINGS OF FACT
Watson Island is a parcel of land lying in Biscayne Bay in the City of Miami, Dade County, Florida. It is approximately eighty-six acres in size. Watson Island has an unnatural genesis. It was formed as a spoil island, receiving deposits of dredged material as a result of construction and maintenance of various channels in Biscayne Bay. The island forms a portion of the "General Douglas MacArthur Causeway" which is a highway connecting the mainland with the City of Miami Beach. The causeway is also designated as U.S. Highway 41 and State Road A-1-A. Watson Island presently serves as a recreational facility. It is commonly used as a picnic area, and as a launching site for recreational boats into Biscayne Bay. The Miami Yacht Club and the Miami Outboard Club utilize the island as a center for their activities. There is a Japanese garden maintained on the island, and Chalk's Seaplane Service and a heliport are operated as commercial enterprises. Watson Island is owned by the City of Miami. [This finding is determined from Hearing Officer's Exhibit A; Exhibits 5, 10, and 15; and testimony from members of the general public.]
The City of Miami is proposing to construct an amusement theme park on Watson Island. The seaplane service and heliport presently in operation would be moved to other locations on the island. The Japanese garden would be maintained. The park as proposed would be designed to combine specialty shops, rides, restaurants, shows and handicraft exhibits. The primary themes would be a "Caribbean international village," a "turn-of-the-century promenade," and "Old Florida" amusement and entertainment areas. There would be a variety of amusement-park type rides. The project includes plans for construction of two new marinas, a 1,500 foot cultural hall for musical and theater presentations, a film theater and various other entertainment facilities. On-site parking would be provided for more than 3,000 cars an buses. The project has been designed to provide entertainment for people of all ages, and of varying interests. The City is seeking to provide an attraction to serve the recreational needs of local residents, and to attract additional tourists to the South Florida area. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 10, 15, and 25.]
The City of Miami has been engaged in planning and designing the proposed Watson Island theme park for several years. Private consultants have been retained to assist the City, and the City's own staff as well as staff from other governmental entities have been consulted. The City apparently assumed from the outset that the project would be a development of regional impact as contemplated by Chapter 380, Florida Statutes, and approval of the project as specified in that Chapter has been sought. The provisions of Chapter 380 require that developments of regional impact be reviewed by the appropriate regional planning agency. The regional planning agency which reviews proposed developments of regional impact in Dade County is the South Florida Regional Planning Council (SFRPC hereafter).
The City filed its initial request for review of the proposed Watson Island development with the SFRPC on October 24, 1979. The SFRPC returned the request and accompanying data to the city on November 9, 1979, and requested further data. The city filed its second request for review in February, 1980. The SFRPC again requested additional data. By letter dated March 25, 1980, the City declined to provide additional information, and the SFRPC proceeded to consider the proposed development. The SFRPC staff issued a report in May, 1980. The City responded, and the staff replied. The SFRPC conducted a public hearing on June 2, 1980, and on June 3 published its final assessment of the proposed development, recommending to the City of Miami that the development not be approved.
In addition to being the applicant or developer in this case, the City of Miami is also the local government with authority to issue a Development Order. The City conducted public hearings on June 26 and July 10, 1980, and issued a Development Order approving the development as described in the application for development approval. The instant appeal proceeding initiated pursuant to Section 380.07, Florida Statutes, ensued. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 13, 14, 15, 20, 27, 30, 32, 33, and 47.]
The final report of the SFRPC identifies numerous adverse impacts and risks associated with the proposed Watson Island development. While the SFRPC has contended that the City has not adequately addressed these matters in its Development Order, there has been no evidence offered that several of the asserted impacts would have any consequence beyond the immediate area of Watson Island or the City of Miami. The impacts which the evidence does not establish
have consequences beyond the City of Miami are: (a) that the project makes ineffective use of the extensive shoreline by constructing non-water dependent facilities along the waterfront; (b) that the project and its associated activities are expected to result in an increase in air pollution emissions; (c) that noise disturbance generated by the project would result in noise levels incompatible with nearby residential areas; (d) that the project locates a large public investment for non-water dependent activities in a flood problem area;
that the proposed project would eliminate an opportunity for free public access to a waterfront area; (f) that the health and safety of theme park patrons would be at risk because the plan provides no means of access for emergency service vehicles; and (g) that handicapped patrons would be prevented from ready access to the park because of improper design of a pedestrian bridge. [This finding is determined from Hearing Officer's Exhibit A; and from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, and 32.]
In addition to the matters set out in paragraph 4, the SFRPC has contended and sought to establish that the proposed development would have adverse impacts beyond the City of Miami relating to transportation facilities, water quality, and fiscal impact. [This finding is determined from Hearing Officer's Exhibit A.]
The Development Order was issued by the City of Miami in the form of a Resolution with an accompanying document labeled "Development Order." The Resolution included the following language:
A development order approving with modifications, the Watson Island development, a development of regional impact, proposed by the City of Miami, located on Watson Island and bay bottom in Biscayne Bay, be and the same is hereby granted and issued.
While the Resolution does not explicitly incorporate the Development Order by reference, the Development Order is inextricably a part of the Resolution. The Development Order was attached to the Resolution, and was stamped with the same resolution number (80-525) as the Resolution. The Resolution and Development Order include the recitations required by statute and rule. There is no evidence in the record from which it could be concluded that the Development Order was not in existence at the time that the Resolution was adopted. [This finding is determined from Exhibit 32.]
Watson Island lies on both sides of a highway which is designated as Federal Route 41, and State Road A-1-A. The roadway is a regional highway facility, connecting the City of Miami on the mainland with the City of Miami Beach. These are regionally significant activity centers. A substantially increased volume of traffic on the roadway would reduce accessibility between them. The roadway is not maintained by local government for local resident purposes, but rather is a state and federal highway of regional importance.
Data provided by the City of Miami in support of its contention that the proposed development would have no significant traffic impact is deficient because it understates the traffic impact of the proposed development, overstates roadway capacities, and understates increased levels of roadway usage that are likely to result without regard to the Watson Island development.
The City has estimated that ten thousand persons a day will visit Watson Island, and that thirty percent of these will arrive through some means of public transportation. The nature of this public transportation is not
identified. No plans exist to connect Watson Island with any presently existing or proposed public transportation facilities. The thirty percent estimate was offered by one of the City's private consultants which does not appear to be a traffic consultant. The estimate is not supported by evidence of record, and could not be achieved without the existence of public transportation facilities to accomplish it. The City's estimate of average daily vehicle trips on the MacArthur Causeway that would be generated by the Watson Island development (5,408) is thus understated by as much as thirty percent.
The City has based its estimate of the traffic carrying capacity of the MacArthur Causeway upon an assumption that traffic lanes to the east of Watson Island will be widened. There are no existing plans to accomplish widening of the roadway, and no money for that purpose has been budgeted.
The City has contended that traffic growth on the MacArthur Causeway between 1980 and 1985 can be estimated at 2.27 percent. This estimate is based upon growth reflected during the years 1975 to 1979 at one location on the causeway. The Dade County Department of Traffic and Transportation and the Florida Department of Transportation consider that 3.5 percent is a more realistic growth figure. This latter figure is more credible, and is itself conservative when other large planned developments in close proximity to the MacArthur Causeway are considered. These include projects known as Fisher Island, Ball Point, Downtown Government Center, DuPont Plaza, Southeast Financial Center, and World Trade Center.
Unless adequate provision is made to expand the load carrying capacity of the MacArthur Causeway and to provide viable alternate means of reaching Watson Island, the traffic impact of the proposed development would substantially and adversely affect traffic flow on the MacArthur Causeway. The MacArthur Causeway presently functions to adequately accommodate vehicle usage at most locations during most times of the day. At peak traffic periods, however, the causeway is over-utilized. Placing an additional heavy traffic burden upon the causeway would render its level of service poor during substantial parts of the day. The impact would extend to other regional roadways including U.S. Highway 1 and Interstate Highway 95. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 27, 30, 32, 39, and 46.]
Watson Island is located across a channel known as "Government Cut" from the Port of Miami. The Port of Miami is presently engaged in expansion which is being financed through public expenditures. The port utilizes a turning basin which is directly adjacent to the west side of Watson Island. The turning basin measures approximately 1,600 feet across and is barely adequate to accommodate ships which utilize the port. A larger generation of ships, including a passenger ship known as the S/S Norway, have made plans to utilize the Port of Miami. Such use will necessitate an expansion of the turning basin to at least 2,000 feet.
The proposed Watson Island development includes a marina on the west side of the island. The marina would accommodate approximately 165 boats. The marina would interfere with the present turning basin, and would prevent expansion. The increased boat traffic that would result from operation of the marina would further restrict the turning basin and inhibit planned and projected growth for the Port of Miami. The Port of Miami is a regional transportation facility. Unless the marina proposed on the west side of Watson Island is eliminated or relocated, operation and projected growth of the Port of Miami will be impeded. The result would be a diversion of shipping traffic from the port.
The Development Order issued by the City of Miami requires that the City work with the Port Authority and the local pilots' association to assure that the Watson Island development does not interfere with port operations. The Development Order, however, allows implementation of a project which will interfere with operations and expansion of the port. [This finding is determined from Exhibits 5, 7, 10, 15, 20, 24, 27, 30, and 32.]
The SFRPC has contended that the proposed Watson Island development would have an adverse impact upon water quality in Biscayne Bay, and that this impact is of significance beyond the City of Miami. This contention is not supported by the evidence. The water quality impacts asserted by the SFRPC are short-term impacts that would result from construction activities, and long-term impacts that would result from dredging, increased drainage runoff, and loss of wetlands. As to the short-term impacts, the City proposes to utilize turbidity screens and construction techniques that would minimize and confine turbidity that would result from construction. The only dredging activities that are proposed are in connection with the laying of sewer lines from the island to a regional sewage treatment facility, and in connection with laying pilings for the proposed marinas. The short-term consequences of these dredging activities can be minimized or eliminated through proper construction techniques which the City of Miami proposes to utilize.
The long-term effects of dredging activities have not been shown to be significant. No new channels nor subsurface conditions are anticipated. The SFRPC has expressed concern that water depths in the areas of the proposed marinas are shown in the application for development approval to be deeper than at present. Obviously, dredging, with potentially permanent negative environmental impact, would be required to accomplish an increase in water depth. In other portions of the application for development approval, the City has indicated that it intends to do no such dredging. To alleviate any possibility for misconstruction of the application for development approval, any development order that is approved should include a prohibition against dredging beyond that necessary to accomplish the laying of sewer lines and the installation of pilings.
The SFRPC contends that there will be increased runoff entering directly into Biscayne Bay as a result of the development because the presently permeable surfaces of Watson Island would be replaced with primarily impermeable surfaces. The City has, however, proposed a system of swales which will result in most runoff being caught and sent through permeable surfaces into Biscayne Bay rather than directly. The water quality impact of runoff, given the present condition of Watson Island, would therefore be minimal, except during periods of heavy storms when the swale system would be inadequate to trap all of the runoff. The evidence does not establish that the environmental impact of runoff after a heavy storm would be significant in terms of water quality in Biscayne Bay.
Construction of a proposed marina on the north side of Watson Island would eliminate approximately 470 square feet of red, black, and white mangroves. The evidence does not establish what environmental impact the elimination of such a small quantity of mangroves would have on water quality in Biscayne Bay. Whatever the consequence, the City has proposed to replace the mangroves on a nearby island at a ratio of four mangroves planted for each destroyed. The record in this case does not establish the positive environmental aspects of mangrove populations. Even assuming, as has been established in other cases [see e.g. Graham v. Estuary Properties, Inc., So.2d
(Supreme Court of Florida Case No. 58,485, April 16, 1981)], that destruction of large mangrove populations would have severe environmental impact, it cannot be concluded that the Watson Island mangroves are environmentally significant.
Only a very small community, estimated at less than 100 plants, is involved, and the City proposes to create an expanded mangrove population in another location to compensate. [This finding is determined from Exhibits 5, 7, 10, 15, 18, 19,
20, 27, 30, 32, and 36.]
The SFRPC asserts that if operation of the proposed amusement theme part were unsuccessful, the economic consequence to the city of Miami could be so severe as to have direct fiscal consequence in adjoining areas, rendering it difficult for other local governments to finance public projects. The contention is not supported by evidence of record. The City would undoubtedly be taking a significant economic risk by developing and operating the proposed Watson Island amusement park. The project is being financed through issuances of municipal revenue bonds, and through grants from the Federal Government which have not yet been secured. The City intends to sell $55 million in municipal revenue bonds. Of this amount there will be an issuance of "Series A" revenue bonds in the amount of $35 million which would be secured by revenues from the amusement park project solely. The remaining $20 million would be designated "Series B" tax supported bonds, and would be secured first by project revenues, and secondly by City of Miami non-ad valorem taxes, revenues, and fees. Thus, if the amusement park did not yield revenues sufficient to service the bond debt, the City could be responsible for up to $20 million plus interest payable from city funds. In addition, the City would be obliged to pay for various services that would be rendered to the park, including fire protection services, potable water facilities, wastewater treatment facilities, and miscellaneous other facilities. The City would also be obliged to pay, under its contract with a private management firm, Diplomat World Enterprises, $12 million as a management fee for operation of the project during the first five years of its operation. All of these amounts would be financed through revenues of the amusement park if the park generated sufficient revenues. If it did not, the City would be obliged to use its general revenues.
The City projects that the project will pay for itself, and perhaps show a net profit as early as the third year of operation. This projection is based upon information provided by the City's consultant, Economic Research Associates, a consulting firm that has provided services to numerous major amusement theme parks. In some respects, the economic projection for the proposed development seems overly optimistic. For example, it is estimated that the park would draw three million visitors during the third year of its operation. This is a larger projected attendance than is realized by several already existing theme parks which are larger than that proposed on Watson Island, including Busch Gardens in Tampa, Florida, and Six Flags Over Georgia in Atlanta, Georgia. While the projections are optimistic, they may be realizable due to the fact that the Watson Island park would be open every day, and in the evenings. Furthermore, the park is located in a large metropolitan area with that clientele as well as a significant tourist clientele to draw upon. The estimates are supported by the experts best able to make them, and are not refuted by competent evidence of record. This is not to say that the evidence would support a finding that the proposed Watson Island development would be a successful operation in fiscal terms. The evidence does, however, establish that there is a favorable prospect that the project can be operated without a negative fiscal impact upon the City of Miami.
There is no evidence in the record from which it could be concluded that the fiscal impact upon the City of Miami would be so adverse as to have
impact beyond the City even if the project were a total failure. No evidence was offered to show the fiscal position of the City of Miami, nor its ability to adequately handle the debt that it would be undertaking by developing the proposed amusement park.
The proposed Watson Island theme park would have several favorable economic impacts. Construction jobs would be made available during that phase of project, and approximately one thousand full or part-time employees would be required to operate the park. The park would serve as an attraction to increase the tourist trade within the region. The project would thus have the effect of stimulating commerce in the region and producing additional jobs, including jobs for low income and minority persons. [This finding is determined from Exhibits 5, 7, 10, 12, 15, 20, 25, 27, 30, 32, 41, 42, 43, and 45; and from the public testimony.]
CONCLUSIONS OF LAW
The Florida Land and Water Adjudicatory Commission has jurisdiction to consider this appeal. Section 380.07, Florida Statutes (1979); Chapter 80-313, Laws of Florida. The Division of Administrative Hearings has jurisdiction to conduct the formal hearing in this proceeding, and to enter a recommended order to the Florida Land and Water Adjudicatory Commission. Section 120.57(1), Florida Statutes.
The City of Miami has contended that the Commission and the Division lack jurisdiction because the proposed Watson Island development is not a development of regional impact. This contention is without merit. A "development of regional impact" is statutorily defined at Section 380.06(1), Florida Statutes, as follows:
"Development of regional impact" as used in this section, means any development which, because of its character, magnitude, or location, would have a substantial affect upon the health, safety or welfare of citizens of more than one county.
The Administration Commission has adopted rules which define developments presumed to be of regional impact. Rule 22F-2.02, Florida Administrative Code, relates to attractions and recreation facilities. It provides:
The following developments shall be presumed to be developments of regional impact and subject to the requirements of Chapter 380, Florida Statutes:
Any sports, entertainment, amusement or recreation facility . . . the proposed construction or expansion of which:
for single performance facilities:
provides parking spaces for more than two thousand five hundred (2,500) cars; or
provides more than ten thousand (10,000) permanent seats for spectators; or
for serial performance facilities:
provides parking spaces for more than one thousand (1,000) cars; or
provides more than four thousand (4,000) permanent seats for spectators.
For purposes of this subsection "serial performance facilities" shall mean those using their parking areas for permanent seating more than one time per day on a regular or continuing basis.
The proposed Watson Island theme park would constitute a development of regional impact under any of the alternative paragraphs with the exception of subsection (1)(a)(ii). The validity of this rule has not been challenged, and the Watson Island theme park must therefore be presumed to be a development of regional impact absent evidence sufficient to rebut the presumption. No such evidence has been presented in this proceeding. The developer, City of Miami, and the local government, City of Miami, have assumed from the outset that the proposed project would be one of regional impact. Furthermore, the evidence establishes that the proposed project would have impact beyond Dade County with respect to transportation facilities, and therefore, even absent the presumptions established by rule, the development is one of regional impact.
The City of Miami has contended that Florida Statutes Sections 380.06 and 380.07 are unconstitutional. Litigation has been initiated in Circuit Court in Leon County in support of this contention. Neither the Florida Land and Water Adjudicatory Commission nor a Hearing Officer of the Division of Administrative Hearings has authority to declare a statute unconstitutional. Only a court has this authority. Gulf Pines Memorial Park v. Oaklawn Memorial,
361 So.2d 695 (Fla. 1978). No effort is made herein to resolve this constitutional issue.
The City of Miami has contended that the Florida Land and Water Adjudicatory Commission lacks jurisdiction to consider this appeal because the Circuit Court in Dade County, Florida, has entered a Final Order validating bonds to be issued by the City in order to finance the project. The City contends that a bond validation proceeding brought in accordance with Chapter 75, Florida Statutes, is determinative of all issues that could have been raised in that proceeding, and that the issues raised in this appeal could have been adjudicated in the bond validation proceeding. This contention was the subject of a Motion to Dismiss filed by the City which was denied by Order entered December 3, 1980. the contention remains unmeritorious. Nothing in Chapter 75 indicates that bond validation proceedings can serve as substitutes for the regulatory responsibilities of state agencies such as the Florida Land and Water Adjudicatory Commission. The purposes of bond validation proceedings are to adjudicate whether the issuing governmental entity has the authority was properly exercised. McCoy Restaurants, Inc. v. City of Orlando, 392 So.2d 252 (Fla. 1980). In State v. City of Miami, 103 So.2d 185, 188 (Fla. 1958), the Court stated:
It was never intended that proceedings instituted under the authority of this chapter to validate governmental securities would be used for the purpose of deciding collateral issues or those issues not going directly to the power to issue the securities and the validity of the proceedings with relation thereto.
Issues properly raised in an appeal taken pursuant to Section 380.07, Florida Statutes, would clearly have been collateral to the bond validation proceeding, and thus could not properly have been raised in that proceeding.
The SFRPC has contended that the Development Order issued by the City of Miami is legally deficient. This contention is without merit. "Development order" is defined at Section 380.031(2), Florida Statutes, as "any order granting, denying, or granting with conditions an application for a development permit." Resolution No. 80-525 of the City of Miami accomplishes that purpose, includes a document entitled "Development Order" which was attached to the Resolution, and incorporates the application for development approval by reference. The documents contain the recitations required by Administration Commission Rule 22F-1.23, Florida Administrative Code.
In bringing an appeal pursuant to Section 380.07, Florida Statutes, a regional planning agency is limited to raising issues which have effect beyond the local governmental entity which issued the development order. Section 380.06(11)(a)6, Florida Statutes, as amended by the provisions of Chapter 80- 813, Laws of Florida, which became effective July 1, 1980, prior to the institution of this appeal. The SFRPC in its official report to the City of Miami raised numerous impacts which have not been shown to have consequence beyond the City of Miami. While these impacts were appropriately addressed by the SFRPC, they may not serve as the basis for bringing this appeal. The only impacts of the proposed development that have been shown to extend beyond the City of Miami are the impacts upon transportation facilities and upon water quality. The only water quality impact which the evidence reveals could extend beyond the City is that which could result from dredging and filling operations in submerged areas other than in connection with installing sewer lines and pilings. There is an ambiguity in the application for development approval as to whether any such dredging and filling is anticipated, and the ambiguity should be eliminated.
The responsibilities of the SFRPC in reviewing an application for development approval are set out at Section 380.06(11)(a), Florida Statutes, as amended by the provisions of Chapter 80-813, Laws of Florida. The statute provides in pertinent part:
In preparing its report and recommendations, the regional planning agency shall identify regional issues based upon the following review criteria and make recommendations to the local government on these regional issues, specifically considering whether, and the extent to which:
The development will have a favorable or unfavorable impact on the environment and natural resources of the region.
The development will have a favorable or unfavorable impact on the economy of the region.
The development will efficiently use or unduly burden water, sewer, solid waste disposal, or other necessary public facilities.
The development will efficiently use
or unduly burden public transportation facilities.
The development will favorably or adversely affect the ability of people to find
adequate housing reasonably accessible to their places of employment.
The development complies with such other criteria for determining regional impact as a regional planning agency shall deem appropriate, including, but not limited to, the extent to which the development would create an additional demand for, or additional use of, energy, provided such criteria and related policies have been adopted by the regional planning agency pursuant to Section 120.54.
Under Section 380.06(13)(c), Florida Statutes, a local government considering a development order is charged with considering whether and the extent to which "the development is consistent with the report and recommendations of the regional planning agency submitted pursuant to subsection (11." In its Development Order, and in its application for development approval, the City of Miami has failed to give adequate consideration to the impact which the proposed development would have upon transportation facilities. Specifically, the impact of the proposed development upon regional roadways has been understated, and the impact of the project upon the Port of Miami has been ignored. It has been factually determined that the proposed development would overburden a regional roadway, and would interfere with the Port of Miami's existing turning basin and prevent expansion of the basin.
In determining whether to affirm, reverse, or approve with conditions a local development order, the Florida Land and Water Adjudicatory Commission is called upon to weigh and balance the various impacts of a proposed project. Graham v. Estuary Properties, Inc., So.2d (Supreme Court of Florida Case No. 58,485, April 16, 1981). The proposed Watson Island amusement park could have a favorable impact upon the economy of South Florida by providing jobs and by providing a recreational facility for local residents and tourists. The project would, however, have an adverse impact upon regional transportation facilities. Adequate transportation facilities do not presently exist to accommodate the project. The development would significantly impede traffic flows on the MacArthur Causeway and on other regional roadways. Without adequate transportation facilities, the project would be more likely to fail. The project would also impede operation and further development and growth of the Port of Miami. The Port of Miami is a significant regional transportation facility and significant funds have been spent for its expansion. The expansion effort will become futile if the Watson Island theme park is approved as provided in the Development Order. These adverse impacts mandate reversal of the Development Order.
Section 380.08(3), Florida Statutes, provides
If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate any changes in the development proposal that would make it eligible to receive the permit.
In order to alleviate the adverse regional impacts of the proposed Watson Island amusement park, the application for development approval and the Development Order should be amended as follows:
No dredging or filling in submerged areas or alteration of shorelines will be undertaken except in connection with installation of sewage pipes and marina pilings. Any additional dredging or filling in submerged areas that might be proposed or required will be considered a substantial deviation from the terms of the Development Order under the provisions of Section 380.06(7)(g), Florida Statutes.
Public transportation facilities to transport visitors to Watson Island must be assured, so that projections for the number of visitors who would reach the project through public transportation facilities can be realized. Plans for these facilities should become an integral part of the application for development approval, and should be submitted to the South Florida Regional Planning council for review pursuant to Section 380.06, Florida Statutes, prior to further consideration of the application by the local government.
The capacity of the MacArthur Causeway must be expanded so that the roadway is capable of accommodating traffic that would be generated by the project without reducing the capacity of the roadway to accommodate existing traffic. Plans for widening or otherwise increasing the roadway capacity should become an integral part of the application for development approval, and should be submitted to the South Florida Regional Planning Council for review pursuant to Section 380.06, Florida Statutes, prior to further consideration of the application by the local government.
The proposed marina on the west side of Watson Island should be eliminated or relocated so that it would not interfere with the existing turning basin of the Port of Miami, or with expansion of the turning basin. Plans for eliminating or relocating the marina should become an integral part of the application for development approval, and should be submitted to the South Florida Regional Planning Council for review pursuant to Section 380.06, Florida Statutes, prior to further consideration of the application by the local government.
RECOMMENDED ORDER
Based upon the foregoing findings of fact and conclusions of law, it is, hereby,
That the Florida Land and Water Adjudicatory Commission enter a final order reversing the Development Order embodied in City of Miami Resolution No. 80-525.
RECOMMENDED this 3rd day of June, 1981, in Tallahassee, Florida.
G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1981.
COPIES FURNISHED:
Allan Milledge, Esquire Debbie Malinsky, Esquire Milledge & Hermelee
2699 South Bayshore Drive Miami, Florida 33133
Gerald Heffernan, Esquire Stuart L. Simon, Esquire Fine, Jacobson, Block, Klein,
Colan & Simon, P.A.
2401 Douglas Road
Post Office Box 340800 Miami, Florida 33134
The Honorable Bob Graham Governor, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Jim Smith Attorney General
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable George Firestone Secretary of State
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Bill Gunter State Treasurer
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Doyle Conner Commissioner of Agriculture State of Florida
The Capitol
Tallahassee, Florida 32301
The Honorable Ralph Turlington Commissioner of Education State of Florida
The Capitol
Tallahassee, Florida 32301
Mr. John T. Herndon, Secretary Florida Land and Water
Adjudicatory Commission Office of the Governor The Capitol
Tallahassee, Florida 32301
Appendix I
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOUTH FLORIDA REGIONAL PLANNING ) COUNCIL, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1843DRI
)
CITY OF MIAMI, )
)
Respondent. )
)
APPENDIX I TO RECOMMENDED ORDER RULINGS IN ACCORDANCE WITH
FLORIDA STATUTES SECTION 120.59(2)
The South Florida Regional Planning Council (SFRPC) has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. Rulings upon the proposed findings of fact and conclusions are set out herein in accordance with Section 120.59(2), Florida Statutes.
Proposed Findings of Fact 1 through 8 set out in the proposed recommended order have been adopted in substance in the Recommended Order, and are hereby adopted.
Paragraph 1 of the conclusions of law set out in the proposed recommended order is hereby adopted.
Paragraphs 2 through 5 of the proposed conclusions of law are hereby adopted in part and rejected in part. Data submitted by the City in support of its traffic estimates has been found to be less credible than data submitted by the SFRPC. While the data submitted by the City is insufficient to show that the proposed Watson Island development will not have a significant adverse impact upon regional transportation facilities, it does not appear that the data was so inadequate as to prevent the regional planning council from making a review of the traffic impact of the proposed development. Data submitted by the City respecting public transportation facilities has been found inadequate because no plans for implementing public transportation plans to accommodate the
City's projections are included. Data submitted by the City regarding expansion of the MacArthur Causeway has been found inadequate because no plans exist to accomplish the expansion and because even the projected expansion would not be adequate to accommodate increased traffic.
Paragraph 6 of the proposed conclusions of law is hereby rejected. The evidence does not support a conclusion that the City intended for its D.R.I. application to receive less stringent review than that of other applicants.
Paragraph 7 of the proposed conclusions of law is rejected except insofar as it has been specifically adopted in the findings of fact set out in the Recommended Order. While in some respects the financial data submitted by the City appears optimistic, it is supported by opinions of qualified experts. The SFRPC has failed to offer evidence to demonstrate that the financial impact of the proposed development, even assuming that the project fails totally, would have any impact beyond the City of Miami.
Paragraph 8 of the proposed conclusions of law is hereby rejected. It does appear that the City provided sufficient information for the SFRPC to discharge its functions. In paragraph 8(a) it is indicated that there are inconsistencies in the application for development approval as to the extent of dredging that will be required. It is appropriate that conditions be imposed in any development order that is issued specifically prohibiting any dredging other than that incident to the laying of sewage lines and the installation of pilings for marinas.
Paragraph 9 of the proposed conclusions of law is hereby adopted in part and rejected in part. While the additional information requested was reasonably related to the discharge of the SFRPC duties, it does not appear that the additional data was essential. Indeed, it appears that the SFRPC was able to carry out its function.
Paragraph 10 of the proposed conclusions of law is hereby rejected. The amendments to Chapter 380 set out in Chapter 80-813 were not in effect at the time that the SFRPC reviewed the City's application for development approval. They were in effect, however, when this appeal was instituted, and the provisions do substantively govern this appellate proceeding.
Paragraphs 11 through 14 of the proposed conclusions of law are hereby adopted.
Paragraph 15 is adopted except for the conclusion that inadequate data other than as expressly set out in the Recommended Order was provided in the application for development approval. Paragraph 16 is adopted except for the contention that the City had a "burden of proof." Evidence submitted by the City regarding transportation impacts has been deemed less credible than that submitted by the SFRPC. Neither the Development Order nor the application for development approval adequately cure the adverse regional transportation impacts that the evidence establishes will result from the proposed development.
Paragraph 17 through 20 of the proposed conclusions of law are hereby rejected. The proposed development could have a substantial fiscal impact upon the City of Miami. The SFRPC has in some respects misconstrued the contract that the City has with the private management company. In any event, the SFRPC has not demonstrated that any fiscal impact of the proposed development would have consequence beyond the limits of the City of Miami.
Paragraph 21 of the proposed conclusions of law is hereby adopted.
Paragraphs 22 and 23 of the proposed conclusions of law are hereby rejected. The SFRPC has not demonstrated that the proposed development would have adverse environmental impacts beyond the limits of the City of Miami.
Paragraph 24 of the proposed conclusions of law is adopted in part and rejected in part. The distance of a project from a county line is a factor to be considered in determining whether a proposed project would have an impact beyond the county in which it lies. While a factor, it is not determinative.
Paragraphs 25 and 26 of the proposed conclusions of law are hereby adopted.
Paragraphs 27 through 40 of the proposed conclusions of law are hereby rejected. It does appear that the City of Miami properly adopted the Development Order which is the subject of this appeal. While it has been recommended that the Development Order be reversed, that recommendation does not contain an inference that the Development Order was improperly entered, or that it contained inadequate recitations.
ENTERED this 3rd day of June, 1981, in Tallahassee, Florida.
G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1981.
COPIES FURNISHED:
Allan Milledge, Esquire Debbie Malinsky, Esquire Milledge & Hermelee
2699 South Bayshore Drive Miami, Florida 33133
Gerald Heffernan, Esquire Stuart L. Simon, Esquire Fine, Jacobson, Block, Klein,
Colan & Simon, P.A.
2401 Douglas Road
Post Office Box 340800 Miami, Florida 33134
The Honorable Bob Graham Governor, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Jim Smith Attorney General
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable George Firestone Secretary of State
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Bill Gunter State Treasurer
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Doyle Conner Commissioner of Agriculture State of Florida
The Capitol
Tallahassee, Florida 32301
The Honorable Ralph Turlington Commissioner of Education State of Florida
The Capitol
Tallahassee, Florida 32301
Mr. John T. Herndon, Secretary Florida Land and Water
Adjudicatory Commission Office of the Governor The Capitol
Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOUTH FLORIDA REGIONAL PLANNING ) COUNCIL, )
)
Appellant, )
)
vs. ) CASE NO. 80-1843DRI
)
CITY OF MIAMI, )
)
Respondent. )
)
APPENDIX II TO RECOMMENDED ORDER SUMMARY OF PUBLIC TESTIMONY
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, conducted a public hearing in this matter on March 3 and 4, 1981, in Miami, Florida. The portion of the hearing conducted on March 4 was devoted to receiving public comment and input regarding the proposed Watson Island development. Approximately 150 to 200 members of the public at large attended this portion of the hearing. Statements made by members of the public are summarized below. Those who testified wrote their names and addresses on forms that were made available at the hearing.
These forms, which have been numbered to coincide with the following numbered paragraphs, have been placed in an envelope and marked as Hearing Officer's Exhibit C.
The following paragraphs are summaries of statements made by members of the public at large who testified:
Louise Hill, a representative of the Dade and Monroe County District of the Florida Federation of Garden Clubs, testified in opposition to the Watson Island development. She stated that the membership of her organization unanimously adopted a resolution in opposition to the project at its October, 1979, meeting. She stated that 3,000 members were present at the meeting. A copy of the resolution was received into evidence as Public Exhibit 1. Mrs. Hill stated that it would be preferable to preserve open areas on Watson Island for beautification.
Rene Costs, an associate director of the "Winnermaker's Organization," testified in favor of the development. He urged that the development would attract tourists and provide employment opportunities for low-income young people. He felt that the project would aid in alleviating unemployment problems in the area.
A. Jay Cristol testified in opposition to the development. He stated that he has lived in Miami or Miami Beach since 1939 and that he knows Watson Island intimately, having first camped there as a boy scout in the 1940's. He stated that he presently water skis alongside the island and drives across it at least twice a day. Mr. Cristol testified that the Japanese garden on Watson Island is a valuable asset to the region and that the proposed development would
demolish the garden rather than improve it. He testified that the amusement park would have adverse environmental impacts in terms of noise, air and water pollution. He testified that the amusement park would have adverse environmental impacts in terms of noise, air and water pollution. He testified that the single-span drawbridge on the MacArthur Causeway already causes incredible traffic snarls. He said that Biscayne Bay has improved in quality only due to profound efforts, and that this project would have an adverse effect, reversing the trend. He was especially concerned about the potential for pollutants caused by runoff from the parking lot. He stated that the project would interfere with the turning basin for the Port of Miami. He did not agree that the project would promote jobs. He stated that the location is a poor one for an amusement park, and expressed concern that Watson Island is one of the few remaining open landmasses in Biscayne Bay.
Charles Alex Higgs testified in favor of the development. He stated that he speaks for black senior citizens. He urged that the development would be a valuable family attraction and would provide jobs.
Bayard Strell testified in opposition to the development. He stated that traffic congestion in the area of the development is already excessive, exceeding desirable flow conditions. He testified that the MacArthur Causeway is one of the major thoroughfares connecting the mainland with Miami Beach, it is carrying a much greater capacity than it can accommodate, that many motorists are forced to use other bridges and causeways, and that these have also become congested.
Ed Wainhouse, a representative of a taxpayers' and tennis association in Miami Beach, testified in opposition to the project. He read into the record a resolution adopted by the City of Miami Beach in opposition to the development. A copy of the resolution was received into evidence as Public Exhibit 2. He stated that the island is too limited in space to succeed as an amusement park, and would be a certain victim of bankruptcy. He testified that the traffic would be a major problem since the MacArthur Causeway is a critical thoroughfare between Miami Beach and the mainland for evacuation and emergency purposes. Mr. Wainhouse offered a letter from the Executive Assistant to the City Manager of the City of Miami Beach in support of his contention that the causeway is important for evacuation and emergency purposes. The letter was received into evidence as Public Exhibit 3.
Clyde Pettaway testified in support of the development. He stated that he is concerned about the environment and about traffic, but that he is more concerned about people getting work and maintaining their dignity. He urged that the program would provide jobs for minority and low-income people in Dade County. He stated that private enterprise should cooperate with local governments to provide jobs and that this development would serve as such an opportunity. He stated that the entire area would be safer if blacks were provided jobs, and that their needs should be considered. He also stated that the recreational facilities of the development would be an asset.
Florence Shubin, a member of an organization known as "Save Watson Island," testified in opposition to the project. She presented a map designating the location of Watson Island. The map was received into evidence as Public Exhibit 4. She listed numerous organizations which oppose the project. She testified that numerous picnickers now use Watson Island and that the Japanese garden is a unique attraction. She stated that the development is a sinister plan to give private developers public land. She testified that the project would produce noise pollution, air pollution and mammoth traffic jams.
She stated that traffic on the MacArthur Causeway already occasionally backs up all the way to the I-95 interchange when the drawbridge is opened. She stated that traffic is already congested in the area. A copy of a notice of the public hearing that was posted and distributed by the witness was received into evidence as Public Exhibit 5.
Bob Jackson, the Executive Director of the Greater Miami Hotel and Motel Association, testified in support of the development. He stated that tourism is the number one industry in Dade County, and that spin-off commerce from tourism is tremendous. He testified that the effects of a poor tourist season such as the 1980-81 season are reflected markedly in retail sails and employment. Mr. Jackson testified that there is presently a dearth of family- oriented recreation available in the area. He cited what Disney World did for Orlando, and testified that hotels and motels were dying in the Orlando area before Disney World opened. He concluded that Miami needs an attraction such as the Watson Island development, especially under present circumstances.
William TerKeurst, the owner of Dade Helicopters, Inc., testified in favor of the project. Dade Helicopters, Inc., presently operates on Watson Island. He indicated that he could lose his business if a development occurs, but that the business would be likely to die anyway because tourism is dying. He stated that traffic on the MacArthur Causeway is not so bad as depicted, and that most of the time it is relatively light. He stated that he has traveled the causeway many times and that he has never had a longer than ten-minute wait for a bridge opening.
Myron T. Mitnick testified in opposition to the development. He has been a resident of Hibiscus Island, which is located near Watson Island, since 1963. He stated that his taxes have increased from $640 to $2,200 per year. He noted that the City has not received any money from the Federal Government, and he cited the adverse environmental, traffic and financial impacts of the development.
Deborah Levine, the Chairman of the Miami Beach Garden Center, testified in opposition to the development. She opposes the location of an amusement park on Watson Island. She stated that the location is simply not suitable, and that the more successful it would become, the worse would be the traffic and environmental consequences. She stated that there are a lot of accidents on the MacArthur Causeway. She stated that people already enjoy Watson Island as a park in its present condition. She suggested that unemployed people go for jobs at all of the construction sites in the area, and that in her opinion bilingual people would get most of the jobs at Watson Island if a development is approved. She offered a pamphlet describing the Florida Federation of Garden Clubs, and the pamphlet was received as Public Exhibit 6.
Leonard Haber testified in support of a development. He lives near Watson Island. He stated that the development would help the economy of the area and that on balance it would be a plus. He testified that local residents need recreational activities, and that the development would serve a worthy purpose. He recognized the environmental and traffic impacts of the development, but offered that meeting recreational needs of the area is also an important goal. Dr. Haber is a former mayor and member of the City Commission of the City of Miami Beach. He conceded that the project may be in need of additional input.
Ursula G. Reinhardt testified on her own behalf, and on behalf of "Friends of the Everglades" in opposition to the development. She read a
statement of "Friends of the Everglades" into the record, and a copy of the statement was received as Public Exhibit 7. She also offered a letter from a professor of civil engineering at the University of Miami, and the letter was received as Public Exhibit 8. She testified that the development is an effort to commercialize an open park, and constitutes turning public lands over to private business for private gain. She testified that training programs are needed to cure unemployment problems, not projects of this sort. She stated that noise and water pollution would result, and that the project would have an adverse impact upon traffic, and upon operation of the Port of Miami.
Milton Lizier testified in opposition to the development, and in direct opposition to the statements made by the witness Clyde Pettaway, who Mr. Lizier stated does not speak for the entire black community. Mr. Lizier stated that money to alleviate unemployment problems should be spent directly in the black communities, and that the project is not likely to have any impact upon employment problems of blacks.
Stephen Sonnabend, the President of the Miami Beach Hotel and Motel Association, testified in support of the development. Mr. Sonnabend operates a Miami Beach hotel, and is a resident of Key Biscayne. He testified that business is down, and that the area desperately needs a family-oriented attraction. He stated that Orlando is getting tourists that should come to Miami because they have so many family attractions. He offered that having a theme park on Watson Island operating at night would be especially helpful.
Florence Hatch testified in opposition to the development. She read a letter from a research professor at Florida International University into the record. The letters identified plant and animal life that was identified on, or near, Watson Island. This letter was received into evidence as Public Exhibit
She also read into the record a letter from a friend, who believes that the project will result in increased crime. This letter was received into evidence as Public Exhibit 10. Mrs. Hatch testified that she has lived in the area since 1939, and that is has gone from a lovely place to live to an awful one. She stated that the area does not need a project of this sort on the MacArthur Causeway. She stated that sirens already are on all night long, and that crime is rampant.
Charles A. Kramer, the President of the Southern Florida Hotel and Motel Association, testified in support of the development. He stated that the development would offer a compelling extra reason for tourists to come to the Miami area, and that it would have a positive impact upon the economy of the area. He stated that the island is presently scraggly, barren and ugly. He offered that trees and shrubbery would enhance the beauty of the island.
Klara Hauri testified in opposition to the development. She offered a letter from her daughter into evidence, and the letter was received as Public Exhibit 11.
Elvis William Cruz testified in opposition to the development. He is presently a pharmacy student at Florida A & M University. He spoke on behalf of the Morning Star Civic Association, a neighborhood civic association. He stated that the association has adopted a unanimous resolution, with 175 members present, in opposition to the development. He criticized the hearing procedure, stating that insufficient notice was distributed. He offered that tourism has been bad during the past season due in part to bad weather and in part to the cost of gasoline. He testified that the project would have an adverse effect beyond the immediate area due to its impact upon the Port of Miami. He stated
that the kinds of jobs that would be generated would be menial, and not helpful in resolving unemployment difficulties. He concluded that people who opposed the development had nothing to gain, while people who favor it have money to gain.
Selma W. Alexander testified in opposition to the development. She supported the testimony of Mr. Cruz. She stated that the processes followed by the City in approving this development were improper, and that there had been no public hearing conducted. A copy of a zoning ordinance which she contends was violated was received into evidence as Public Exhibit 12. She stated that the project would not be likely to be successful. She offered a letter from a friend, who also opposes the project. The letter was received as Public Exhibit 13.
Roslyn Kreitman, the vice president of the board of directors of a condominium on Miami Beach, testified in opposition to the development. She stated that while tourism is important, residents and taxpayers are important too. She stated that traffic on the MacArthur Causeway is terrible, and that bridges are in disrepair. She compared the project to Coney Island in New York, which, she stated, has become unpleasant.
Edith Land testified in opposition to the project. She stated that she has a terrace which overlooks the bay and the city and that she can observe traffic on the MacArthur Causeway. She stated that traffic on the causeway is an unbelievable mess. She testified that this project cannot be compared with Disney World. She offered that crime would be a problem there.
Arthur S. Rosichan testified in opposition to the development. He stated that he had been for seventeen years the Executive Vice President of the Greater Miami Jewish Federation. He stated that he has supported projects in black communities, and that he set up a park in a black area in memory of his deceased wife. He stated that Watson Island is the wrong location for an amusement park, and that it should be located outside of town. He stated that traffic is a mess in the area presently.
Nancy Brown spoke on behalf of the Tropical Audubon Society in opposition to the project. She expressed the following concerns: that the project would interfere with the turning basin of the Port of Miami; that there is already a marine amphitheater in the area, and that another is not needed; that the heliport would be moved to filled land contrary to the Aquatic Preserve Act, Chapter 258, Florida Statutes; that excessive storm water would be directly discharged from impervious surfaces into Biscayne Bay; that the traffic impact would be felt on the interstate highway; that the project would have adverse economic consequences; and that public funds are being misdirected.
ENTERED this 3rd day of June 1981 in Tallahassee, Florida.
G. STEVEN PFEIFFER Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June 1981.
COPIES FURNISHED:
Allan Milledge, Esquire Debbie Malinsky, Esquire Milledge & Hermelee
2699 South Bayshore Drive Miami, Florida 33133
Gerald Heffernan, Esquire Stuart L. Simon, Esquire Fine, Jacobson, Block, Klein,
Colan & Simon, P.A.
2401 Douglas Road
Post Office Box 340800 Miami, Florida 33134
The Honorable Bob Graham Governor, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Jim Smith Attorney General
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable George Firestone Secretary of State
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Bill Gunter State Treasurer
State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol
Tallahassee, Florida 32301
The Honorable Doyle Conner Commissioner of Agriculture State of Florida
The Capitol
Tallahassee, Florida 32301
The Honorable Ralph Turlington Commissioner of Education State of Florida
The Capitol
Tallahassee, Florida 32301
Mr. John T. Herndon, Secretary Florida Land and Water
Adjudicatory Commission Office of the Governor The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 03, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 03, 1981 | Recommended Order | City issued development order for island theme park. Serious problems weren't considered (parking, traffic, water quality, port). Reverse order. |
