STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFFORD FRAME, ALFRED HOGAN, ) MARY LAVERATT, MRS. JOHN THOMPSON,) CHESTER TOMAS, JAY ZIEGLER, MRS. ) LADDIE TORMA, ELLEN S. TOMAS, and ) RICHARD WOLLENSCHLAEGER, )

)

Petitioners, )

)

vs. ) CASE NO. 89-3931GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and CITY OF OAKLAND PARK, )

)

Respondents. )

)

RECOMMENDED ORDER AND ORDER ON MOTION FOR SANCTIONS

Pursuant to notice, a formal hearing was held in this case on March 14 and 15, 1990, in Oakland Park, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Brion L. Blackwelder, Esquire

Jacobson and Associates 3363 Sheridan Street

Suite 204

Hollywood, Florida 33021

For the Department: Richard J. Grosso, Esquire

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For the City: Donald J. Doody, Esquire

Josias & Goren, P.A.

3099 E. Commercial Boulevard Suite 200

Fort Lauderdale, Florida 33308 STATEMENT OF THE ISSUES

Whether Petitioners are "affected persons," entitled to challenge the City of Oakland Park's 1989 comprehensive plan pursuant to Section 163.3184(9), Florida Statutes?

Whether the City of Oakland Park's 1989 comprehensive plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by Petitioners?

Whether the Hearing Officer should grant the City's motion requesting that sanctions be imposed against Petitioners pursuant to Section 163.3184(12), Florida Statutes?

PRELIMINARY STATEMENT

Following the Department of Community Affairs' issuance of a notice of its intent to find the City of Oakland Park's 1989 comprehensive plan "in compliance," Petitioners filed with the Department separate petitions alleging that the plan was not "in compliance." Thereafter, Petitioners amended their petitions. The petitions, as amended, contain identical allegations concerning the land use designation assigned a particular piece of property under the plan. Petitioners allege that the designation in question "will result in adverse traffic impact contrary to the level of service standard of traffic levels" established by the plan. Therefore, according to Petitioners, the plan is internally inconsistent.

The petitions, as amended, were referred to the Division of Administrative Hearings on July 24, 1989. On September 11, 1989, the City of Oakland Park filed with the Hearing Officer a motion for sanctions. The motion alleged that the petitions were filed by Petitioners "in bad faith contrary to the provisions of Section 163.3184(12), Florida Statutes . . . to harass, to cause unnecessary delays and for frivolous purposes which have resulted in an increase in the cost of litigation borne by the City of Oakland Park."

A formal hearing in this cause was originally scheduled for February 1 and 2, 1990. At the request of the City of Oakland Park, the hearing was continued and rescheduled to commence on March 14, 1990.

At hearing, Petitioners presented the testimony of two witness. In addition, they offered into evidence nine exhibits. All nine of their exhibits were admitted by the Hearing Officer. Five witnesses testified during the presentation of Respondents' case. Respondents also offered two exhibits into evidence. Both exhibits were received by the Hearing Officer.

At the close of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the transcript on March 30, 1990. Respondents filed separate proposed recommended orders on April 27, 1990. Petitioners filed a proposed recommended order on April 30, 1990. The proposed findings of fact set forth in these proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made: The City of Oakland Park and Its Roadways

1. The City of Oakland Park is an incorporated municipality located in Broward County, Florida. It is situated in the geographic center of the County.

   
   

2. A six-lane divided expressway, I-95, runs north/south through the middle of the City.

3. Among the major east/west thoroughfares in the City is Oakland Park Boulevard. It is a six-lane divided roadway that is functionally classified by the Florida Department of Transportation as an urban principal arterial. The roadway is lined almost exclusively with commercial development.

   
   

4. I-95 can be accessed at Oakland Park Boulevard.

   
   

   The Stroks' Property and Its Surroundings

   
   

5. Mr. and Mrs. Strok own 20.709 acres of contiguous land in the City. The land is among the few remaining undeveloped properties in the City.

   
   

6. The Stroks' property abuts Oakland Park Boulevard to the south. Its southernmost point is a relatively short distance to the west of the Oakland Park Boulevard/I-95 interchange.

   
   

7. At present, Oakland Park Boulevard provides the only vehicular access to the Stroks' property.

   
   

8. Commercial development lies immediately to the east and to the west of that portion of the Stroks' property fronting on Oakland Park Boulevard.

   Further north on the property's western boundary is a residential neighborhood of single family homes. Single family homes also lie to the east of the Stroks' property north of Oakland Park Boulevard, but they are separated from the property by a canal.

   
   

9. Oakland Park Boulevard, in the vicinity of the Stroks' property (Segment 366), is heavily travelled. Currently, it is operating well over its capacity and therefore, according to standards utilized by the Florida Department of Transportation, is providing a Level of Service (LOS) of "F." There are no formal plans at the moment to expend public funds on capital improvements that would increase the capacity of Oakland Park Boulevard.

   
   

10. Whether the Stroks' property is ultimately used primarily for commercial purposes or for single family residential purposes, the development of the property will increase the traffic volume on this segment of Oakland Park Boulevard, as well as other roadway segments in the County that are now operating over capacity, but are not programmed for any capital improvements.

    As a general rule, however, commercial development generates more traffic than single family residential development.

    
    

    The City's 1989 Comprehensive Plan Future Land Use Map

11. The City adopted its 1989 comprehensive plan on April 5, 1989. Adopted as part of the plan was a Future Land Use Map (FLUM), which was based upon appropriate surveys, studies and data concerning the area. Over Petitioners' objections, all but a small portion of the Stroks' property was designated for commercial use on the FLUM. 1/ Under the City's two prior comprehensive plans, the Stroks' entire property was designated for commercial use.

    
    

12. "Commercial uses" are defined in Chapter IV, Section 1.32 of the City's 1989 comprehensive plan as "activities within land areas which are predominantly connected with the sale, rental and distribution of products, or

    performance of services." Furthermore, Chapter IV, Section 3.02(C) of the plan provides as follows with respect to lands designated for commercial use on the FLUM:

    
    

    Each parcel of land within an area designated in a commercial land use category by the City's land Use Plan Map must be zoned in a zoning district which permits any one or more of the following uses, but no other uses:

    1. Retail uses.

    2. Office and business uses.

    3. Wholesale, storage, light fabricating and warehouses uses, if deemed appropriate by the City.

    4. Hotels, motels and similar lodging.

    5. Recreation and open space, cemeteries, and commercial recreation uses.

    6. Community facilities and utilities.

    7. a. Special Residential Facility Category

       (2) development . . . .

       b. Special Residential Facility Category

       (3) development . . . .

    8. Non-residential agriculture uses.

    9. Residential uses are permitted in the same structure as a commercial use provided that the local government entity applies flexibility and reserve units to the parcel and:

       1. The residential floor area does not exceed 50% of the total floor area of the building; or

       2. The first floor is totally confined to commercial uses.

    10. Recreational vehicle park sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the City land development regulations, or twenty

        (20) sites per gross acre if such permanent location is prohibited by the local land development regulations, subject to allocation by the City government entity of available flexibility or reserve units.

    11. Transportation and communication facilities.

        
        

13. The decision to designate in the City's 1989 comprehensive plan almost all of the Stroks' property for commercial use was not made without consideration of the adverse impact commercial development would have on traffic in the vicinity of the Stroks' property. Although it was recognized that such development would add more traffic to the already congested roadways in the area than would single family residential development, the prevailing view was that the additional traffic that would be generated by commercial development, as compared to that which would be generated by single family residential development, would be relatively insignificant.

14. The designation of the major portion of the Stroks' property for commercial use is not inherently incompatible with the designations assigned other parcels of property in the surrounding area.

    
    

15. The Stroks' property was designated for commercial use under Broward County's 1989 comprehensive plan. The Broward County Charter mandates that the land use plans of the County's incorporated municipalities be in substantial conformity with the County's land use plan.

    
    

    Goals, Objectives and Policies

    
    

16. The City's 1989 comprehensive plan also includes various goals, objectives and policies. Those of particular significance to the instant case provide in pertinent part as follows:

    
    

    Goal 1- Protect and enhance the single family residential, multiple-family residential,

    non-residential and natural resource areas of Oakland Park.

    Objective 1.1- By November 1989, or when required by legislative mandate, revise the development code to assure that all new development . . . avoids traffic problems now impacting the City . . . .

    Policy 1.1.5- By November 1989, or when required by legislative mandate, the development code shall be amended to specify that no development permit shall be issued unless assurance is given that the public facilities necessitated by the project (in order to meet level of service standards specified in the Traffic Circulation, Recreation and Infrastructure policies) will be in place concurrent with the impacts of the development. A concurrency management system shall be included that specifies the latest DCA and City criteria for what constitutes "assurance" in addition to budgeted projects or signed development agreements.

    Goal 2- To develop an overall transportation circulation system which will provide for the transportation needs of all sectors of the community in a safe, efficient, cost effective and aesthetically pleasing manner.

    Objective 2.1- Provide for a safe, convenient and efficient motorized and non-motorized transportation system.

    Policy 2.1.1- Monitor annual traffic accident frequencies by location.

    Policy 2.2.2- Improve selective enforcement at high accident locations.

    Policy 2.1.4- Within one year of Plan submission, or when required by legislative mandate, provide safe and convenient on-site traffic flow through development review procedures.

    Policy 2.1.7- Reduce the amount of through traffic on local streets and collectors through the implementation, within three years of plan adoption, of a Local Area Traffic Management Program (LATMP) . . . .

    Policy 2.1.11- Improve the efficiency of traffic flow on existing roadways by implementing the policies of Objective 2.1.

    Objective 2.2- After November 1989, or when required by legislative mandate, coordinate the traffic circulation system with existing and future land uses as shown on the Future Land Use Map.

    Policy 2.2.1- After November 1989, or when required by legislative mandate, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS "D" on all arterial and collector roadways where existing plus committed traffic allows, and maintain traffic conditions on all other roadways segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes.

    Other methods may be utilized but are subject to technical review and acceptance by the City.

    Policy 2.2.2- Within 120 days of plan adoption, adopt a list of local roadway segments where traffic operations are at LOS "C" or better. This list may be based on the February 21,1989 run of the Broward County TRIPS model, which includes traffic generated by committed development or other sources as appropriate.

    Policy 2.2.3- After 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.1, under

    the following circumstances:

    • There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation.

    • The necessary improvements to provide LOS "C" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year.

    • The necessary improvements to provide LOS "C" are included in an enforceable development agreement.

      Policy 2.2.4- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are at LOS "D" or better. This list shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development.

      Policy 2.2.5- After November 1989, or when required by legislative mandate, the City will issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances:

    • There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation.

    • The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council

      determines they will be under contract during the same fiscal year.

    • The necessary improvements to provide LOS "D" are included in an enforceable development agreement.

      Policy 2.2.6- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is a scheduled improvement in the City 2010 Traffic Circulation Plan. Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Planned Improvement Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios.

      Policy 2.2.7- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.3, under the following circumstances:

    • The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions and the scheduled 2010 improvement will be able to operate at LOS "D" once constructed.

    • There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation.

    • The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council

      determines they will be under contract during the same fiscal year.

    • The necessary improvements to provide LOS "D" are included in an enforceable development agreement.

      Policy 2.2.8- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is no scheduled improvement in the City 2010 Traffic Circulation Plan. 2/ Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Constrained Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios.

      Policy 2.2.9- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.5, under the following circumstances:

    • The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions.

    • There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation.

      Policy 2.2.10- The City will annually update existing traffic counts and review updated Broward County Trips assignments. Based on the update the City may reclassify any roadway segment within the City. The City may also reclassify a roadway segment if development from outside the City has effected traffic conditions within the City.

      Policy 2.2.11- Subsequent to plan adoption, modify the land development regulations such that after 1989, or when required by legislative mandate, require trip generation studies from all proposed development within the City and traffic impact studies for developments generating more than 10% of adjacent roadway capacity and allow development contingent upon the provision

      of LOS Standards.

      Objective 2.4- Provide for the protection of existing and future rights of way from building encroachment.

      Policy 2.4.2- Modify land development regulations to ensure consistency with the Broward County Trafficways Plan right-of-way requirements during development review activities.

      Goal 9- To ensure the orderly and efficient provision of all public services and facilities necessary to serve existing and future local population needs.

      Objective 9.2- By November 1989, or when required by legislative mandate, provide that development or redevelopment proposals are approved consistent with existing service availability or coincident with the programmed provision of additional services

      at the adopted level of service standards and meets existing and future facility needs.

      Policy 9.2.1- Within one year of Plan submission, or when required by legislative mandate, revise development procedures to review development proposals cognizant of the City's adopted level of service standards, existing levels of service and where appropriate, the timeframe for implementation of additional facility improvements.

      Policy 9.2.2- After 1989, or when required by legislative mandate, condition the approval of proposed development or redevelopment projects on the basis of project related needs being concurrently available at the adopted level of service standards specified in Policy 9.2.4.

      Policy 9.2.3- After November 1989, or when required by legislative mandate, allow for phasing of development related infrastructure improvements concurrently with project impacts on public facilities.

      Policy 9.2.4- The Level of Service (LOS) for capital facilities shall be:

      * * *

    • for Arterials and Collectors- LOS "D" or "Maintain"

    for Local Roadways- LOS "C" ADT, PSDT and PKHR

    Objective 9.3- By November 1989, or when required by legislative mandate, provide that private developers participate on a proportionate share basis in any facility improvement costs necessary to maintain LOS standards.

    Policy 9.3.2- Establish a preference for the actual construction of adjacent site road improvements in lieu of impact fee payments.

    Policy 9.3.3- By November 1989, or when required by legislative mandate, establish

    in the land development regulations a process for assessing new development on a pro rata share of the costs necessary to finance public facility improvements in order to maintain the adopted level of service standards specified in Policy 9.2.4.

    
    

    Development Review Requirements

    
    

17. Chapter IV, Section 4 of the City's 1989 comprehensive plan prescribes development review requirements. It provides in pertinent part as follows:

    
    

    1. Following the effective date of the Land Use Plan, the City shall not grant a permit for a proposed development unless the City has determined that public facilities are adequate to serve the needs of the proposed development or unless the developer agrees in writing that no certificate of occupancy shall be issued for the proposed development

       until public facilities are adequate to serve its needs.

    2. Public facilities may be determined to be adequate to serve the needs of a proposed development when the following conditions are met.

    1. Traffic circulation . . . public facilities and services will be available to meet established level of service standards, consistent with Chapter 163.3203(g) Florida Statutes and the concurrence management policies included within this Plan.

    2. Local streets and roads will provide safe, adequate access between buildings within

    the proposed development and the trafficways identified on the Broward County Trafficways Plan prior to occupancy.

    Capital Improvements Implementation

    
    

18. Chapter VII of the plan deals with the subject of capital improvements implementation. It contains a section which addresses the matter of level of service standards. This section provides in pertinent part as follows:

    
    

    The minimum criteria for Comprehensive Plans requires that Level of Service Standards for the City of Oakland Park be included for public facilities described in the plan. The Level of Service Standards for the City of Oakland Park are provided in the following Table 2.

    Subsequent to the adoption of this Comprehensive Plan, all future development approvals will be conditioned upon the provision of services at the local level of service standards.

    Table 2 sets forth the following level of service standards for roadways: Principal Arterials- LOS "D" or "Maintain"

    Minor Arterials- LOS "D" or "Maintain" Collectors- LOS "C"- AADT, 3/ PSDT 4/ PKHR 5/

    
    

    Submission and Approval of the Stroks' Plat

    
    

19. On June 6, 1989, the Stroks submitted to the County Commission for its approval a final plat of their property. The plat reflected the Stroks' plan to have 15 single family dwelling units, 180,000 square feet of office space and 36,000 square feet of commercial space constructed on the property.

    
    

20. County staff analyzed the plat to ascertain the impact that the proposed development would have on traffic. In performing their analysis, they relied on the County's TRIPS computer model.

    
    

21. Broward County assesses impact fees against a developer where it is projected that a development will add traffic to road segments in the County that are over-capacity, but are planned for improvement. The TRIPS computer model is used to determine the amount of the assessment.

    
    

22. County staff did a TRIPS run on the Stroks' plat on September 13, 1989 and determined that the development proposed in the plat would generate a total of 6,879 trips on road segments throughout the County, including over-capacity road segments that were not planned for improvement, as well as over-capacity road segments that were planned for improvement. 6/

    
    

23. The County Commission approved the Stroks' plat on September 19, 1989. A short time earlier, the City Council had also approved the plat.

    
    

    Petitioners' Motives

    
    

24. Petitioners are all residents of the City of Oakland Park. In filing their petitions challenging the City's 1989 comprehensive plan, they were motivated only by a desire to improve the quality of life in their city. They had no ulterior motive. They filed the petitions because they felt that it was in the best interest of the City that they do so.

    CONCLUSIONS OF LAW

    
    

    General Legal Principles

    
    

25. Counties and incorporated municipalities in the State of Florida are required, pursuant to Chapter 163, Part II, Florida Statutes, (otherwise known as the Local Government Comprehensive Planning and Land Development Regulation Act and referred to herein as the Act) to prepare and adopt comprehensive plans of the type and in the manner prescribed by the Act.

    
    

26. A local government's adopted comprehensive plan is subject to review by the Department of Community Affairs under the Act. The purpose of such review is to determine whether the plan is "in compliance." Section 163.3184(8), Fla. Stat.

    
    

27. "In compliance," as used in Section 163.3184, Florida Statutes, "means consistent with the requirements of ss. 163.3177, 163.3178 and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II." Section 163.3184(1)(b), Fla. Stat.

    
    

28. Section 163.3177, Florida Statutes, describes the "[r]equired and optional elements of comprehensive plan[s]" and the "studies and surveys" upon which they must be based.

    
    

29. Section 163.3178, Florida Statutes, prescribes the contents of the coastal management element, which is a required element for all counties and municipalities that abut "the Gulf of Mexico or the Atlantic Ocean, or which include or are contiguous to waters of the state where marine species of vegetation listed by rule pursuant to s. 403.817 constitute the dominant plant community." Section 380.24, Florida Statutes.

    
    

30. Section 163.3191, Florida Statutes, imposes requirements relating to a local government's evaluation and appraisal of its comprehensive plan following the plan's adoption.

    
    

31. Chapter 9J-5 of the Florida Administrative Code contains the rule provisions adopted by the Department of Community Affairs pursuant to Section 163.3177(9), Florida Statutes, which set forth the "minimum criteria for review of comprehensive plans and determination of compliance."

    
    

32. The state comprehensive plan was adopted by the Legislature in accordance with the provisions of Section 186.008, Florida Statutes. It is found in Chapter 187, Florida Statutes. The plan is "a direction-setting document" that provides "long-range policy guidance for the orderly social, economic, and physical growth of the state." Section 187.101, Fla. Stat.

    
    

33. The appropriate regional policy plan in the instant case is the plan adopted by the South Florida Regional Planning Council pursuant to Section 186.508, Florida Statutes. The council is responsible for regional planning activities in the South Florida region, which includes Broward, Dade and Monroe Counties.

34. The Legislature has mandated that the following guidelines be followed in determining whether a local government's comprehensive plan is consistent with the requirements of the state comprehensive plan and the applicable regional policy plan:

    
    

    [A] local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means to take action in the direction of realizing goals and policies of the state or regional plan. For the purposes of determining consistency with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies

    in the plan.

    
    

    Section 163.3177(10)(a), Fla. Stat.

    
    

35. If the Department of Community Affairs determines following its review of a local government's adopted comprehensive plan that the plan is consistent with the requirements of Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Chapter 9J-5, Florida Administrative Code, the state comprehensive plan and the appropriate regional policy plan, it is required to issue and publish a notice of its intent to make such a finding. "[A]ny affected person, within 21 days after the publication of the notice, may file a petition with the [Department] pursuant to s. 120.57" challenging the proposed finding. Section 163.3184(9)(a), Fla. Stat. To ascertain whether a petitioner is an "affected person" entitled to participate as a party in the proceeding, the following definition set out in Section 163.3184(1)(a), Florida Statutes, must be applied:

    
    

    "Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.

    Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written objections during the local government review and adoption proceedings.

    
    

    The burden is on the petitioner to establish that he qualifies as an "affected person" under this statutory definition. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414 (Fla. 4th DCA 1974)("burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal'").

36. If a petition is filed with the Department by an "affected person," it must be transmitted to the Division of Administrative Hearings. Upon receipt of the petition, the Division of Administrative Hearings is responsible for assigning a hearing officer, who "shall hold [a] hearing in the affected local jurisdiction and submit a recommended order to the [Department]." The Department must issue "a final order within 30 days after receipt of the recommended order if [it] determines that the plan is in compliance. If [it] determines that the plan . . . is not in compliance, [it must] submit, within 30 days after receipt, the recommended order to the Administration Commission." Section 163.3184(9)(b), Fla. Stat.

    
    

37. In making its determination on the matter, the Department must take into account that the petitioner bears the burden of establishing that it is not even fairly debatable that the plan is "in compliance." Accordingly, if an examination of the record developed at hearing reveals that the petitioner has not made such a showing, the Department must issue a final order sustaining "the local government's determination of compliance." Section 163.3184(9)(a), Fla. Stat.

    
    

    Petitioners' Standing

    
    

38. Because Petitioners are all residents of the City of Oakland Park who submitted objections during the proceedings that culminated in the adoption of the City's 1989 comprehensive plan, they qualify as "affected persons" entitled to challenge the plan in accordance Section 163.3184(9), Florida Statutes.

    
    

    Petitioners' Challenge to the Plan

    
    

39. Section 163.3177(2), Florida Statutes, provides in pertinent part that "[t]he several elements of [a local government's] comprehensive plan shall be consistent." Florida Administrative Code Rule 9J-5.005(5)(a) similarly requires that "[t]he required elements and any optional elements [of a local government's comprehensive plan] shall be consistent with one another.

    
    

40. Petitioners allege that the City's 1989 comprehensive plan fails to comply with these mandatory provisions of Section 163.3177 and Chapter 9J-5, Florida Administrative Code, inasmuch as "the [commercial] land use designation of the Strok property is internally inconsistent with the level of service standard[s] set by the plan for traffic." According to Petitioners, these portions of the plan are inconsistent with one another because the level of service standards prescribed by the plan for certain road segments will not be met if the Stroks' property is developed for commercial use. An examination of the plan, however, reveals that no such internal inconsistency exists.

    
    

41. The level of service standards to which Petitioners refer are an integral part of the plan's concurrency provisions. These provisions simply supplement the plan's land use designations. They do not conflict with them. These two components of the City's 1989 comprehensive plan were designed to operate in harmony, not at cross-purposes.

    
    

42. The plan's land use designations effectively limit the manner in which land in the City may be developed and used. While they specify the type of development that may take place on property located in the City, they do not purport to prescribe when the specified development may take place. That is a matter addressed in the plan's concurrency provisions, with its level of service standards. These provisions impose additional, but not conflicting, restrictions upon the development and use of property in the City. Regardless

    of the land use designation assigned their property, landowners in the City, such as the Stroks, must satisfy these concurrency requirements before they can develop their property. To construe the plan otherwise would be unreasonable. The scenario envisioned by Petitioners - - the development of the Stroks' property without the plan's concurrency requirements being met - - therefore will not occur if the plan is properly implemented. 7/

    
    

43. In view of the foregoing, Petitioners' claim that the City's 1989 comprehensive plan is internally inconsistent and therefore not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, should be rejected.

    
    

    Motion for Sanctions

    
    

44. Section 163.3184(12), Florida Statutes, provides as follows:

The signature of an attorney or party constitutes a certificate that he has read the pleading, motion, or other paper and that, to the best of his knowledge information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay,

or for economic advantage, competitive reasons, or frivolous purposes or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the hearing officer, upon motion or his own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

The City has filed a motion requesting that the Hearing Officer impose sanctions against Petitioners pursuant to this statutory provision for pursuing the instant challenge to the City's 1989 comprehensive plan. Because Petitioners' challenge was motivated by a desire to help their City, not by any improper purpose, the imposition of sanctions against them would be inappropriate.

Accordingly, the City's motion for sanctions is hereby DENIED.

RECOMMENDATION

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

RECOMMENDED that the Department of Community Affairs issue a final order finding that the City of Oakland Park's 1989 comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes.

DONE and ORDERED this 18th day of May, 1990, in Tallahassee, Florida.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of th Division of Administrative Hearings this 18th day of May, 1990.

ENDNOTES

1/ The remaining portion of the property was designated for residential use at five units per acre. Petitioners do not contest this designation. They take issue only with the commercial designation placed on the major portion of the property.

2/ Segment 366 of Oakland Park Boulevard is such a roadway segment. 3/ AADT stands for Average Annual Daily Traffic.

4/ PSDT stands for Peak Season Daily Traffic. 5/ PKHR stands for Peak Hour Traffic.

6/ The information generated by this September 13, 1989, run, upon which Petitioners heavily rely in support of their amended petitions, was not available to the Oakland Park City Council at the time it adopted the City's 1989 comprehensive plan in April, 1989, more than five months before the run was made.

7/ Whether the plan, subsequent to its adoption, has been properly implemented with respect to the development of the Stroks' property is a matter that is beyond the scope of these proceedings.

APPENDIX TO RECOMMENDED ORDER IN CASE NO 89-3931GM

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioners' Proposed Findings of Fact

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. First sentence: Rejected because it is more in the nature of a summarization of evidence adduced at hearing than a finding of fact based upon such evidence; Second and third sentences: Rejected because they add only unnecessary detail.

3. First sentence: Rejected because it is more in the nature of a summarization of evidence adduced at hearing than a finding of fact based upon such evidence; Second sentence: Accepted and incorporated in substance.

4. First and second sentences: Rejected because they add only unnecessary detail; Third sentence: Accepted and incorporated in substance.

5. Rejected because it adds only unnecessary detail.

6. Accepted and incorporated in substance.

7. First sentence: Rejected because it is more in the nature of a summarization of evidence adduced at hearing than a finding of fact based upon such evidence; Second and third sentences: Rejected because they add only unnecessary detail.

8. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it adds only unnecessary detail.

9. First sentence: Rejected because it is more in the nature of a summarization of evidence adduced at hearing than a finding of fact based upon such evidence; Second sentence: Accepted and incorporated in substance;

   Third, fourth and fifth sentences: Rejected because they add only unnecessary detail.

10. Third sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summarizations of evidence adduced at hearing than findings of fact based upon such evidence.

11. First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they add only unnecessary detail.

12. Rejected because it is more in the nature of a summarization of evidence adduced at hearing than a finding of fact based on such evidence.

13. First and fourth sentences: Accepted and incorporated in substance; Second and third sentences: Rejected because they are more in the nature of argument than findings of fact.

City's Proposed Findings of Fact

All of the City's proposed findings of fact except for proposed finding of fact 9 have been rejected because they are more in the nature of summarizations of evidence adduced at hearing than findings of fact based on such evidence.

Proposed finding of fact 9 has been rejected because it adds only unnecessary detail.

Department's Proposed Findings of Fact

1-5. Accepted and incorporated in substance.

1. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

2. Accepted and incorporated in substance.

8-9. Rejected because they are more in the nature of conclusions of law than findings of fact.

10-11. Accepted and incorporated in substance.

12-13. Rejected because they are more in the nature of conclusions of law than findings of fact.

1. Accepted and incorporated in substance.

2. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

3. Accepted and incorporated in substance.

COPIES FURNISHED TO:

Richard J. Grosso, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Brion L. Blackwelder, Esquire Jacobson and Associates

3363 Sheridan Street, Suite 204

Hollywood, Florida 33021

Mr. Richard Wollenschlaeger 1604 N.W. 36th Court Oakland Park, Florida 33309

Donald J. Doody, Esquire Josias & Goren, P.A.

3009 E. Commercial Boulevard, Suite 200 Fort lauderdale, Florida 33308

Docket for Case No: 89-003931GM

Orders for Case No: 89-003931GM