STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MINETTE BENSON, BEATRICE ) DURCHSLAG, ROSLYN KREITMAN, ) FLORENCE SHIFF, ROBERT B. ) CUSHING, ESTELLE KOHN, and ) VENETIAN ISLANDS IMPROVEMENT ) ASSOCIATION, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 89-6804GM
)
CITY OF MIAMI BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS,)
)
Respondents, )
)
and STORTFORD N.V., MARK ) EDELSTEIN, CRAIG EDELSTEIN, ) SHEPARD EDELSTEIN AND )
LIDO SPA HOTEL, )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on May 23 and 24, 1990, in Miami Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: John G. Fletcher, Esquire
7600 Red Road
Suite 304
South Miami, Florida 33143
For the City: John C. Dellagloria, Esquire
Debora J. Turner, Esquire City of Miami Beach
Office of the City Attorney 1700 Convention Center Drive Miami Beach, Florida 33139
For the Department: Richard J. Grosso, Esquire
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Stortford N.V.: Ira M. Elegant, Esquire
46 S.W. 1st Street Fourth Floor
Miami, Florida 33130
For the Edelsteins
and Lido Spa Hotel: Luciano Isla, Esquire
1800 West 49th Street Penthouse 316
Hialeah, Florida 33012 STATEMENT OF THE ISSUES
Whether Petitioners are "affected persons" entitled to pursue the instant challenge to the City of Miami Beach's Year 2000 Comprehensive Plan pursuant to Section 163.3184(9), Florida Statutes?
If so, whether the City of Miami Beach's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by Petitioners?
PRELIMINARY STATEMENT
On November 29, 1989, following the issuance of the Department of Community Affairs' (Department's) notice of intent to find the City of Miami Beach's (City's) Year 2000 Comprehensive Plan "in compliance," Petitioners filed with the Department a petition disputing the Department's determination of compliance.
They contended in their petition that the plan's "highrise designation o[f] the north one-half of Belle Isle" is in violation of the requirements of Section 163.3177(6)(a), Florida Statutes, and, in addition, is inconsistent with provisions of the plan that deal with hurricane evacuation and historic preservation. The further allegation was made that the "Plan is not in compliance as the City has not validly adopted the Plan as it failed to comply with the mandatory and jurisdictional notice provisions of Section 163.3184(15)(c)," Florida Statutes.
On January 4, 1990, the City filed a motion to dismiss Petitioners' petition. After receiving a written response from Petitioners to the City's motion, the Hearing Officer, on January 31, 1990, issued an order disposing of the motion. In his order,
the Hearing Officer expressed the view that "[b]ecause Section 163.3184, Florida Statutes, is not among the statutory provisions expressly referenced in the definition [of "in compliance" found in Section 163.3184(1)(b), Florida Statutes,] an affected person may not challenge a comprehensive plan in a petition filed pursuant to Section 163.3184(9), Florida Statutes, on the grounds that the plan was not adopted in accordance with the procedural requirements of Section 163.3184(15)(c), Florida Statutes." The Hearing Officer went on to announce the following:
[E]vidence will not be taken in the instant case on the issue of whether the City complied with these statutory requirements [set forth in Section 163.3184(15)(c), Florida Statutes] in adopting its Comprehensive Plan and the Hearing Officer will recommend in his Recommended Order the dismissal of that portion of the instant petition which alleges that these statutory requirements were not met.
The remaining portions of the instant petition are sufficient to withstand prehearing challenge. Therefore, to the extent that the City's motion requests that the Hearing Officer recommend the prehearing dismissal of these allegations, said motion is denied.
On February 26, 1990, Stortford N.V. filed a unopposed petition for leave to intervene in this proceeding. By order issued March 2, 1990, the Hearing Officer granted the petition. Mark Edelstein, Craig Edelstein, Shepard Edelstein and the Lido Spa Hotel, on April 20, 1990, also sought leave to intervene in this matter. Their request, which like Stortford N.V.'s was unopposed, was granted by order of the Hearing Officer issued that same day.
On March 28, 1990, the Hearing Officer, on his own initiative, issued an order modifying the January 31, 1990, order in which he had addressed the City's motion to dismiss. In his subsequent order the Hearing Officer stated the following:
Because the requirements imposed by Section 163.3184(15)(c), Florida Statutes, are incorporated by reference in Florida Administrative Code Rule 9J-5.005(8) and the requirements of 9J-5, Florida Administrative Code, are among the requirements specifically referenced in Section 163.3184(1)(b), Florida Statutes, the Hearing Officer, upon further consideration of the matter in light of the
discussion and analysis contained in the amended final order issued by the Administration Commission in Austin v.
Department of Community Affairs, Case No. 89-31, now questions the soundness of his
initial determination regarding Petitioners' ability to raise in the instant case the issue of the City's compliance with the requirements of Section 163.3184(15)(c), Florida Statutes. Accordingly, contrary to what he stated in his January 31, 1990, order, the Hearing Officer will permit the parties to present at hearing evidence germane to this issue.
At hearing, the testimony of the following twelve witnesses was presented by the parties: Petitioner Minette Benson; Petitioner Beatrice Durchslag; Petitioner Roslyn Kreitman; Petitioner Florence Shiff; Petitioner Estelle Kohn; Petitioner Robert Cushing; Miles Moss, a traffic engineering consultant; Robert Nave, Chief of the Department's Bureau of Local Planning; John Taylor, vice-president and general manager of a traffic engineering and planning firm; A.H. Blake, a real estate appraiser; Jose Ardid, the director of Intervenor Stortford N.V.; and Robert Swarthout, a local government planning consultant. In addition to the testimony of these witnesses, the parties offered a total of 68 exhibits, all of which were received into evidence 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 40 days following the Hearing Officer's receipt of the transcript of the hearing.
The Hearing Officer received a copy of the hearing transcript on June 18, 1990.
On July 9, 1990, Petitioners filed a pleading requesting "that the Hearing Officer take judicial notice [of] or, in the alternative, receive into evidence as a supplementary exhibit the attached document entitled 'Defendant City of Miami Beach's Suggestion of Mootness.'" According to the pleading, "[t]he document, created subsequent to the hearing herein, reflect[ed] [an] event also occurring subsequent to the hearing," specifically "the City's voiding of the building permit that had been issued for the proposed project of the intervenor Stortford N.V." A
hearing on Petitioners' request was held by telephone conference call on July 24, 1990. During the course of the hearing, the parties entered into the following factual stipulation:
The building permit previously issued Stortford N.V. (Petitioners Exhibit 29) is now void.
On that same date, with the agreement of the parties, the Hearing Officer, in lieu of granting the relief sought by Petitioners in their July 9, 1990, pleading, issued an order reopening the evidentiary record in the instant case for the limited purpose of receiving this stipulation.
Petitioners filed their proposed recommended order on July 26, 1990. Stortford N.V. filed its proposed recommended order on that same date. The Department of Community Affairs and the City of Miami Beach filed separate proposed recommended orders on July 30, 1990. The Edelsteins and the Lido Spa Hotel filed their proposed recommended order on August 17, 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 and the stipulations of the parties, the following Findings of Fact are made:
City of Miami Beach
The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission.
The City consists of a main island and a number of smaller natural and man-made islands
Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population.
The City is separated from the Dade County mainland, which lies to its west, by Biscayne Bay.
There are four east-west causeways connecting the City with the mainland: MacArthur Causeway; Venetian Causeway; the Julia Tuttle Causeway; and 79th Street (North Bay) Causeway. All four of these causeways serve as hurricane evacuation routes for the City's population.
Venetian Causeway
The Venetian Causeway, which was completed in 1926, is the oldest of these causeways.
It is approximately two and one half miles in length and consists of twelve lowrise bridges. These bridges feature low guardrails of a pierced geometric design which allow a virtually unobstructed view of the bay from anywhere on the roadway.
Among its twelve bridges are two drawbridges, which are in relatively poor operating condition and are unable to bear exceptionally heavy loads.
Inasmuch as the causeway is classified as a county minor arterial roadway, Dade County is responsible for its maintenance and repair.
The causeway has one westbound lane of traffic and one eastbound lane of traffic. Its two lanes of traffic are not divided.
As a two-lane, two-way undivided arterial, the causeway has a peak hour capacity of 1570 vehicles. Based upon 1987 statistics compiled by the Dade County Department of Public Works, the causeway's actual peak hour volume is 641 vehicles. Its volume to capacity ratio is therefore .41 and, as a result, its peak hour level of service (LOS) is "A," which is characterized by free flowing, optimum traffic conditions. There are five other service levels used by traffic planners to describe a roadway's traffic operations: LOS "B" (stable); LOS "C" (uncongested); LOS "D" (congested); LOS "E" (very congested); and LOS "F" (extremely congested).
While traffic is free flowing most of the time on the causeway, there are occasions when there is congestion. Motorists may encounter such congestion when there is an accident, when there is flooding due to a heavy rain event, 1/ when traffic must stop to allow a truck with a heavy load to cross one of the causeway's drawbridges and when one of the drawbridges is stuck in the up position. Furthermore, when the drawbridge on the MacArthur Causeway is stuck in the up position, which happens not infrequently, a number of motorists who ordinarily travel on the MacArthur will use the Venetian as an alternative route, resulting in heavier than usual traffic on the Venetian.
Motorists using the Venetian Causeway must stop at a toll booth located at the western terminus of the causeway to either pay a 50_ toll or show the attendant a plate reflecting
that the toll has been prepaid. Rumble strips have been placed on the pavement to warn motorists to slow down before they reach the toll booth.
As it traverses the bay from the mainland to the City's main island, the causeway crosses six islands, collectively known as the Venetian Islands, that are marked by residential development. From west to east, these islands are: Biscayne Island; San Marco Island; San Marino Island; Di Lido Island; Rivo Alto Island; and Belle Isle. Biscayne and San Marco Islands are within the jurisdictional boundaries of the City of Miami. San Marino, Di Lido, and Rivo Alto Islands and Belle Isle are within the jurisdictional boundaries of the City of Miami Beach.
The Venetian Causeway is the only roadway linking the six Venetian Islands to the mainland.
In addition to an eastbound lane and a westbound lane, the causeway has a turn lane on each of the Venetian Islands.
At its July 19, 1988, meeting, the Dade County Commission passed the following resolution concerning the Venetian Causeway:
WHEREAS, the Venetian Causeway, completed in 1926, was an integral part of the master plan for the residential Venetian Islands in Dade County; and
WHEREAS, the Venetian Causeway is the oldest causeway remaining in its original form, linking the mainland of Miami to the island of Miami Beach; and
WHEREAS, it is believed that preservation of the unique and historic Venetian Causeway as a historic site will be highly beneficial to the residents of the Venetian Islands, the citizens of Miami, Miami Beach, Dade County and the United States of America;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA,
that the County Manager is directed to work with appropriate Local, State and Federal officials to secure funding for its replacement and the Causeway's designation as a State Scenic Highway and its listing
as a historic place in the National Register while preserving its character and appearance.
On July 27, 1988, the Miami Beach City Commission passed a similar resolution, which provided as follows:
WHEREAS, the Venetian Causeway has historic significance in the development of the City of Miami Beach; and,
WHEREAS, the Venetian Causeway has unique character by virtue of its scale, bridge profiles, and railing design; and,
WHEREAS, the existing Venetian Causeway positively contributes to the appearance and character of the Venetian Islands and the City of Miami Beach.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE CITY COMMISSION OF THE CITY OF MIAMI BEACH
FLORIDA, supports the nomination of the Venetian Causeway to the National Register of Historic Places and the designation of the Venetian Causeway as a State of Florida Scenic Highway.
On April 5, 1989, the Miami Beach City Commission adopted Ordinance No. 89-2637, which designated "[t]he public right-of-way of that portion of the Venetian Causeway within the corporate limits of the City of Miami Beach" as a historic preservation site, effective April 15, 1989.
The Venetian Causeway was officially placed on the National Register of Historic Places effective July 13, 1989.
Widening the causeway and adding lanes will change its unique character and appearance and adversely impact its value as a historic resource.
Belle Isle
Belle Isle is the Venetian Island closest to the City's main island and furthest from the mainland. Both of the Venetian Causeway's drawbridges lie to its west.
To the south of the causeway on Belle Isle is a three acre City park and a crescent shaped, fifteen-acre area that is developed with highrise condominium apartment buildings. There are six such buildings. They range in height from ten to twenty- two stories and contain a total of approximately 1050 units.
There is also a large vacant lot on the south end of the island.
There are 9.17 acres of land to the north of the causeway on Belle Isle. The land is divided into six parcels. From west to east, these parcels are: the Cellazet parcel; Century Lane parcel; Lido Spa parcel; Farrey Lane parcel; Edelstein parcel; and Stortford parcel.
The largest of these parcels is the Stortford parcel, which is 3.50 acres. The smallest of these parcels is the Edelstein parcel, which is .60 of an acre. The remaining parcels range in size from .69 of an acre (Century Lane) to 2.21 acres (Lido Spa).
Of these six parcels on the north end of Belle Isle, only one, the Cellazet parcel, is vacant. Lowrise, older buildings, none exceeding five stories in height, are found on the other parcels. These buildings contain approximately 270 residential units.
There has not been any recent development on the north end of Belle Isle.
The units that are furthest south on Belle Isle are only
300 feet from the southernmost point of the 9.17 acres of land that lie to the north of the causeway on the island.
Stortford Parcel
Intervenor Stortford N.V. purchased the Stortford parcel in 1980 for approximately five million dollars with the intention of replacing the 120 lowrise rental apartment units on the site with highrise condominium apartment units.
Shortly after it purchased the property, the market for highrise condominium apartment units in the area weakened and, as a result, Stortford N.V. delayed its plans to redevelop the property. By 1981, market conditions had improved. The improvement rekindled Stortford N.V.'s interest in pursuing its original redevelopment plans. It consulted an architect and investigated the economic feasibility of such a project. It determined after such an investigation that it would be imprudent to go forward with the project under the circumstances as they then existed. Accordingly, it again put its redevelopment plans on hold, but not before it had spent $50,000.00 on the project.
Stortford N.V. next took action in furtherance of the project in the late 1980's. It had a building designed for the site and hired a general contractor, L. Milton Construction Company (Milton), to oversee the building's construction.
The building was to be 27 stories tall and contain almost 300 apartment units ranging in area from 900 square feet (one-bedroom unit) to 1400 square feet (three-bedroom unit). Four of the building's 27 stories were to used as a multi-tiered parking garage with 494 spaces.
On February 22, 1989, Milton applied to the City's Building Department for a building permit to construct the building.
The permit for the Stortford project was approved on January 31, 1990, subject to the following conditions:
This permit is issued subject to Biscayne Bay Shore Line Development Review Committee Approval.
If Biscayne Bay Shore Line Development Review Committee approval is not granted, this permit is null and void and all fees will be refunded (except up front fee).
[The applicant] shall incur no costs and construction shall not begin until Biscayne Bay Shore Line Development Review Committee Approval is granted.
The permit had an expiration date of July 30, 1990.
No other building permit has been issued in recent years for construction anywhere on the north end of Belle Isle. In fact, only one other such permit - for construction on the Callazet parcel - has been sought.
On May 17, 1990, the Biscayne Bay Shore Line Development Review Committee (Committee) met to consider the Stortford project. The Committee rejected the project because it was not set back a sufficient distance from the shoreline.
The building permit issued for the Stortford project on January 31, 1990, is now void.
No actual construction work has yet been done in connection with the project.
Stortford N.V. has spent approximately $365,000.00 on the project since the project's revival in the late 1980's.
Prior Zoning/Land Use Designations of Belle Isle Property
From 1930 until 1951, the south end of Belle Isle was zoned for single family estates (RC) 2/ and the north end of Belle Isle was zoned for multifamily apartments and hotel units (RE).
In 1951, the zoning classification of the south end of Belle Isle was changed to RE. No change was made to the zoning classification of the north end of Belle Isle.
In 1961, height restrictions were placed on the buildings on both the south and north ends of Belle Isle. Under these restrictions no building could exceed 14 stories or 160 feet.
Both the south and north ends of Belle Isle retained their RE zoning classifications until 1971, when the City passed a new zoning ordinance, Ordinance No. 1891, which contained different classifications.
Under the new ordinance, both the south and north ends of Belle Isle were classified RM-100, a classification which permitted a maximum of 100 dwellings units per acre and carried no height restrictions. The south and north ends of the island remained so classified until October 1, 1989, when the City's Year 2000 Comprehensive Plan became effective.
Petitioners
Petitioners Benson, Durchslag, Kreitman, Shiff, Cushing and Kohn are now, and have been at all times material hereto, residents of the City of Miami Beach.
Petitioners Durchslag, Kreitman, Shiff and Kohn live in highrise condominium apartment buildings on the south end of Belle Isle. They each own the apartments in which they live.
Petitioner Benson resides in a single-family house that she owns on Di Lido Island.
Petitioner Cushing lives in a single-family dwelling that he owns on Rivo Alto Island.
The Venetian Islands Improvement Association, Inc. is an organization of owners of single-family residences located on the Venetian Islands. It was founded in 1938 and now has approximately 435 members. Its primary purpose is to advance and protect the collective interests of its homeowner members.
Adoption of the City's Comprehensive Plan
The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989.
All notices of these adoption proceedings were published in the "Beaches Neighbors" section of the Miami Herald. 3/
The "Beaches Neighbors" section of the Miami Herald is circulated twice a week along with the main portion of the Herald in the following towns and municipalities in Dade County: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village.
The "Beaches Neighbors" section of the Miami Herald is:
(a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and
(e) not given away primarily to distribute advertising.
At the close of the public hearing held on September 21, 1989, the City Commission, over the objections of Petitioners, unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Comprehensive Plan.
The objections submitted by Petitioners during the adoption proceedings were directed to the land use designation of the north end of Belle Isle. Although they had the opportunity to do so, they did not contend at any time during the adoption proceedings that the City had given inadequate notice to the public of these proceedings.
While Petitioners may not have known at the time of the adoption proceedings that notice of these proceedings had been published only in the "Beaches Neighbors" section of the Miami Herald, they could have obtained such information in advance of the proceedings by reviewing the files maintained by the City Clerk. They did not conduct such a review, however.
Contents of the Plan and Supporting Data and Analysis
The City's Year 2000 Comprehensive Plan contains a future land use element. An integral part of this element is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of the City.
The FLUM was based upon surveys, studies and data regarding the City as a whole, including, among other things: the City's projected population; the land needed to accommodate the projected population; the character of the remaining vacant land in the City; 4/ the availability of public facilities and services; and the need for redevelopment, including the renewal of blighted areas and the elimination of inconsistent and incompatible land uses.
Neighborhood studies were also used to develop the FLUM.
Census data and existing land uses were examined on a neighborhood-by-neighborhood basis to obtain a detailed inventory of existing conditions in the City.
Belle Isle is part of the West Avenue Neighborhood Study Area. 5/ The plan's supporting documents contain the following narrative statement concerning this area:
West Avenue is predominantly developed as a high density/high intensity bayfront multifamily residential area. (It includes Belle Isle).
Several large vacant parcels and a few existing enclaves of single family homes and older, lower density apartment buildings offer future development opportunities for townhouse construction.
Both the south and north ends of Belle Isle are designated RM-2 on the FLUM.
RM-2 is a medium intensity, multifamily residential land use designation.
The plan regulates the intensity of residential uses by utilizing the concept of floor area ratio (FAR).
Floor area ratio is the floor area of a building or buildings on a lot divided by the area of a lot.
Under the plan, land designated RM-2 is assigned a maximum FAR range of 1.25 to 3.0. 6/ Where within this range a particular development falls depends upon the features of the development. The more desirable features and amenities a development has, the higher its maximum FAR will be pursuant to the performance bonus provisions of the plan.
The RM-2 designation is similar, but not identical, to the RM-100 classification that had existed under Ordinance No. 1891 inasmuch as it does not necessarily bar residential development in excess of 100 dwelling units as did the RM-100 classification.
Initially, the City's Planning and Zoning Department staff members had recommended that the north end of Belle Isle be designated on the FLUM for townhouse use. They subsequently changed their recommendation to RM-2. The change was prompted by concerns that a townhouse designation might unlawfully deprive north end property owners, who had invested in their property in reliance upon prior land use regulations that permitted more intensive use of their land, a fair return on their investment. An alternative designation was therefore sought. RM-2 was selected because of its similarity to the RM-100 classification that had been in effect on the north end of Belle Isle since 1971 and because of its compatibility with the existing development on the south end of the island. 7/ Reliance upon these factors in
selecting a land use designation was in accordance with sound land
use planning techniques.
While the north end of Belle Isle, in terms of its character, is suitable for townhouse development, it is also suitable for highrise residential development of the type permitted by its RM-2 designation.
The comprehensive plan adopted by the City contains other maps, in addition to the FLUM, that depict future conditions. Among these other maps are those that relate to traffic circulation in the City. These maps reflect that the Venetian Causeway is anticipated to remain a two-lane roadway classified as a County minor arterial.
In the City's adopted comprehensive plan, all minor arterials in the City, including the Venetian Causeway, are assigned a peak hour level of service standard of "D." This is the same peak hour level of service standard that the causeway is assigned in Dade County's and the City of Miami's respective comprehensive plans.
The City of Miami Beach's Year 2000 Comprehensive Plan provides that no development order or permit may be issued which would "result in a reduction of the level of services for the affected public facilities below the level of service standards adopted in this Comprehensive Plan." Accordingly, any development or redevelopment on the north end of Belle Isle that will lower the Venetian Causeway's peak hour level of service below "D" is prohibited by the plan. The additional traffic that would be generated by the development and redevelopment of the various
properties on the north end of Belle Isle at the maximum intensity of use permitted by their RM-2 designation, however, is not expected, in and of itself, to cause the Venetian Causeway's peak hour level of service to deteriorate to such a point that the standard set for it in the City's plan would not be met. 8/
Among the other elements of the City's Year 2000 Comprehensive Plan is a historic preservation element. It contains the following goal:
Secure for future generations the opportunity to share in the unique heritage of Miami Beach and promote sound economic development through the purposeful retention, protection, and continued use of buildings, structures, and districts which are associated with important events in the City's history or exhibit significant architectural qualities.
As Policy 2.1 of this element makes clear, the City intends to take "a realistic and balanced approach to economic development and historic preservation."
The City's plan also has a conservation/coastal zone management element. It contains the following objectives and policies dealing with hurricane evacuation and hazard mitigation:
OBJECTIVE 4
The existing time period required to complete the evacuation of people from Miami Beach prior to the arrival of sustained gale
force winds shall be maintained or lowered by 1995. 9/
Policy 4.1
All future improvements to evacuation routes shall include remedies for flooding problems and the anticipated increase in the level of the water of Biscayne Bay.
Policy 4.2
The Miami Beach Hurricane Handbook will be distributed to the general public with detailed emergency operation instructions and hurricane evacuation pick-up sites.
Policy 4.3
The City will work with the Metro-Dade Public Works Department to rate all local bridges for structural and operational sufficiency.
Local bridges with unsatisfactory sufficiency ratings shall be programmed for improvements or replacement.
Policy 4.4
All trees susceptible to damage by gale force winds shall be removed from the right-of-way evacuation routes and replaced with suitable species.
Policy 4.5
The City will coordinate 10/ with Metro-Dade Transportation Administration to ensure adequate buses are available to safely evacuate neighborhoods with large concentrations of households within Miami Beach without private transportation.
Policy 4.6
The City of Miami Beach Fire Department shall maintain and annually update the list of people who may need assistance due to physical or medical limitations in the event of an evacuation to ensure their safe mobilization.
Policy 4.7
The City of Miami Beach Fire Department shall maintain and annually update the Miami Beach Hurricane Evacuation Plan 11/ and maintain and enhance the resources and capabilities of the plan to provide effective implementation of evacuation procedures to ensure that evacuation times are maintained or reduced.
Policy 4.8
Procedures for boat owners during hurricane operations shall be added to the Miami Beach Hurricane Handbook with instructions for safe harbor operations.
Policy 4.9
Between 1989 and 1993, coastal area population densities shall be coordinated with the Metropolitan Dade County Hurricane Procedure, which is the local hurricane
evacuation plan for Miami Beach, and the lower Southeast Florida Hurricane Evacuation Plan, the regional hurricane evacuation plan.
Policy 4.10
Coastal area population densities in Dade County, including the City of Miami Beach, shall be updated in the lower Southeast Florida Hurricane Evacuation Study currently being revised by the US Army Corps of Engineers and the National Hurricane Center.
Policy 4.11
By 1993, changes in coastal area population densities identified in the amended lower Southeast Florida Hurricane Evacuation Study shall be used by the Metropolitan Dade County Office of Emergency Management, the overall coordinating authority for local hurricane planning, to update the Dade County Hurricane Procedure.
OBJECTIVE 5
Reduce the exposure of life and property in Miami Beach to hurricanes through the implementation of hazard mitigation measures, by adopting the following policies:
Policy 5.1
Public expenditures that subsidize additional development in the Coastal High Hazard Zone, (the Federal Flood Insurance Rate Map 'V' Zone), shall be prohibited. Public facilities shall not be built except for public beach or shoreline access and
resource restoration. (See Coastal Zone Management.)
Policy 5.2
The City will coordinate with Metro-Dade County and the South Florida Planning Council to develop a comprehensive marine hurricane contingency plan.
Policy 5.3
New private use facilities along the Coastal High Hazard Zone shall conform to strict setback, open space and accessory use requirements.
Policy 5.4
Structures which suffer repeated damage to pilings, foundations or load bearing walls and/or incur damage exceeding 50% of their assessed value shall rebuild to the requirements of all current development regulations, and shall not be located east of the coastal construction control line.
No redevelopment shall be permitted in areas of repeated damage unless it is determined by the City of Miami Beach Officials to be in the public interest.
Policy 5.5.
During post-disaster redevelopment the Building Department will distinguish between those actions needed to protect public health and safety with immediate repair/cleanup and
long term repair activities and redevelopment areas. Removal or relocation of damaged infrastructure and unsafe structures shall
be by the Miami Beach Public Services Department in accordance with local procedures and those agencies and practices specified in the Metro-Dade County Hurricane Procedure.
Policy 5.6
During post-disaster recovery periods, after damaged areas and infrastructure requiring rehabilitation or redevelopment have been identified, appropriate City departments will coordinate to: prepare a redevelopment plan which reduces or eliminates the future exposure of life and property to hurricanes; incorporate recommendations of intragency hazard mitigation reports; analyze and recommend to the City Commission hazard mitigation options for damaged public facilities; and recommend amendments, if required, to the City's Comprehensive Plan.
Policy 5.7
Unsafe conditions and inappropriate uses identified in the post-disaster recovery phase will be eliminated as opportunities arise.
Even if the City's population increases as projected 12/ and the Venetian Causeway remains a two-lane roadway as contemplated by the plan, it will be possible for the City to accomplish the end, identified in Objective 4 of the conservation/coastal zone management element, of reducing or maintaining the time it takes to complete an evacuation of the City prior to the arrival of sustained gale force winds. The City will be able to do so through the implementation of the strategies described in Policies 4.1 through 4.11 of this element.
Likewise, an increase in the City's population will not necessarily prevent the City from attaining the end specified in Objective 5 of the conservation/coastal zone management element. The City will be able to realize this end, notwithstanding such growth, by taking those measures described in Policies 5.1 through
5.7 of this element.
Accordingly, to the extent that the RM-2 designation of the north end of Belle Isle will have the effect of increasing the population of the City, it is not in irreconcilable conflict with
Objective 4 and Objective 5 of the conservation/coastal zone management element inasmuch as these objectives can be met despite any population increase attributable to such a designation. 13/
Furthermore, because they can be met, despite such an increase in population, without the necessity of widening the Venetian Causeway 14/ and thereby threatening its value as a historic resource, neither is there any irreconcilable conflict with the above-described goal statement found in the historic preservation element of the City's plan.
As noted above, the future traffic circulation maps adopted as part of the City's Year 2000 Comprehensive Plan reflect that the Venetian Causeway will remain a two-lane, minor county arterial. No other part or provision of the plan, including the FLUM's RM-2 designation of the north end of Belle Isle, suggests or requires otherwise.
CONCLUSIONS OF LAW
General Legal Principles
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.
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.
"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.
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.
Section 163.3178, Florida Statutes, prescribes the contents of the coastal management element, which is a required element for all counties and municipalities that, like the City of Miami Beach, 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, Fla.
Stat.
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.
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."
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.
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.
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 that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" 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. Furthermore, there is no requirement that a local government address in its comprehensive plan state goals and policies that are not "relevant to the circumstances or conditions in its jurisdiction." Section 163.3177(10)(b), Fla. Stat.
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'").
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.
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." Section 163.3184(9)(a), Fla. Stat.("the local plan . . . shall be determined to be in compliance if the local government's determination of compliance is fairly debatable"). 15/ The burden is a "heavy" one. See Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 392 (Fla. 3d DCA 1980). To meet this burden, the petitioner must show that its position regarding the plan's noncompliance is not subject to reasonable debate or legitimate controversy. See City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953); Norwood-Norland Homeowner Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA 1987); Sarasota County v. Purser, 476 So.2d 1359, 1362 (Fla. 2d DCA 1985); Marrell v. Hardy, 450 So.2d 1207, 1209 (Fla. 4th DCA 1984). 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."
Petitioners' Standing
The preponderance of the record evidence establishes that Petitioners Benson, Durchslag, Kreitman, Shiff, Cushing and Kohn reside and own property in the City of Miami Beach.
It further reflects that: a substantial number of members of Petitioner Venetian Islands Improvement Association, Inc., also reside and own property in the City of Miami Beach; the subject matter of the petition the Association filed in this case is within the general scope of its interest and activity; and the relief requested in the petition is of a type appropriate for it to receive on behalf of its members.
Accordingly, if they had submitted appropriate oral or written objections during the local government and review proceedings, Petitioners would all qualify as "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled pursuant to Section 163.3184(9), Florida Statutes, to raise the various compliance issues framed by their petition. See Florida Home Builders Association v. Department of Labor and
Employment Security, 412 So.2d 351 (Fla. 1982)(associational standing allowed in rule challenge cases under appropriate circumstances); Southwest Ranches Homeowners Association, Inc. v. Broward County, 502 So.2d 931, 934-35 (Fla. 4th DCA 1987)(association of owners of property adjoining challenged development had standing to challenge development order under Section 163.3215, Florida Statutes); Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753, 754-55 (Fla. 1st DCA 1982)("standing requirements for associations as set forth in Florida Home Builders should be extended to section 120.57(1) proceedings").
96.. It was incumbent upon Petitioners to first raise these issues before the City Commission. In accordance with the mandatory provisions of Section 163.3184(1)(a), Florida Statutes, in order to preserve their right to challenge a local government's adopted comprehensive plan on the grounds that it is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, property owners, residents, business owners and business operators must, if given a reasonable opportunity to do so, 16/ raise these grounds during the review and adoption proceedings so that the local governing body will have the chance to address their concerns before the plan is adopted. 17/ This is true regardless of the nature of the alleged deficiency. The statute makes no exceptions. 18/
Although they had the opportunity to do so, at no time during the review and adoption proceedings did any of the Petitioners complain that the City Commission had failed to provide adequate notice of these proceedings.
Because they failed to take advantage of this opportunity, they are not entitled to challenge the City's Year 2000 Comprehensive Plan pursuant to Section 163.3184(9), Florida Statutes, on the grounds that the City Commission failed to comply with the notice provisions of Section 163.3184(15)(c), Florida Statutes. Accordingly, that portion of their petition alleging that the City's plan is not "in compliance" because of the City Commission's failure to comply with these statutory notice requirements should be dismissed.
Petitioners, however, did argue before the City Commission during the review and adoption proceedings, albeit unsuccessfully, that the proposed RM-2 designation of the north end of Belle Isle would render the City's plan not "in compliance." 19/ They thereby preserved their right to challenge the City's adopted plan pursuant to Section 163.3184(9), Florida Statutes, on the basis of the land use designation assigned the north end of Belle Isle. The merits of this challenge should therefore be considered.
Compliance Issues Notice
Petitioners allege in paragraph 10 of their petition that the "City's Plan is not in compliance as the City has not validly adopted the Plan as it failed to comply with the mandatory and jurisdictional notice provisions of Section 163.3184(15)(c), F.S."
101.. Section 163.3184(15)(c), Florida Statutes, which is incorporated by reference in Florida Administrative Code Rule 9J- 5.005(8), provides in pertinent part as follows:
If the proposed comprehensive plan or plan amendment changes the permitted uses of land or changes land-use categories, the required
advertisement shall be no less than one-quarter page in a standard size or a tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point. The advertisement shall not be placed in that portion of the newspaper where legal notices and classified advertisements appear. The advertisement shall be published in a newspaper of general paid circulation in the county and of general interest and readership in the community, not one of
limited subject matter, pursuant to chapter 50. Whenever possible, the advertisement shall appear in a newspaper that is published at least 5 days a week, unless the only newspaper in the community is published less than 5 days a week.
A "newspaper of general circulation" is defined in Section 163.3164(14), Florida Statutes, as follows:
A "newspaper of general circulation" means a newspaper published at least on a weekly basis and printed in the language most commonly spoken in the area within which it circulates, but does not include a newspaper intended primarily for members of a particular professional or occupational group, a newspaper whose primary function is to carry legal notices, or a newspaper that is given away primarily to distribute advertising.
Chapter 50, Florida Statutes, which is referred to in Section 163.3184(15)(c), Florida Statutes, requires that all legal notices and advertisements be published in newspapers which are "printed and published periodically once a week or oftener" and which are "for sale to the public generally, available to the public generally for the publication of official or other notices and customarily containing information of a public character or of interest or of value to the residents or owners of property in the county where published, or of interest or of value to the general public." Section 50.011, Florida Statutes.
Petitioners have not shown that the City Commission failed to comply with the foregoing notice requirements in adopting its Year 2000 Comprehensive Plan. 20/ Notice of the plan adoption hearings was published in the Miami Herald, albeit in the "Beaches Neighbors" section of the newspaper. See Paducah Automotive Trades Association v. City of Paducah, 307 Ky. 524, 211 S.W.2d 660, 663-64 (Ky. App. 1948)(notice of a city ordinance published in a special tabloid section of the city's official newspaper was considered to be published in the official newspaper for purposes of determining compliance with statutory notice requirements). No showing has been made that the Miami Herald is not a "newspaper" of the type in which such a notice must be published pursuant to Section 163.3184(15)(c), Florida Statutes.
That the "Beaches Neighbors" section comes out only twice weekly is not a basis upon which to find that the notice given by the City Commission the instant case did not comply with the requirements Section 163.3184(15)(c), Florida Statutes. While a local government, in accordance with these requirements, must as a general rule place its advertisement in a newspaper which is published at least five days a week, there is no requirement that the advertisement appear in a section of the paper that comes out with such regularity.
Furthermore, under the statutory scheme, an incorporated municipality, such as the City of Miami Beach, is not required to advertise its public hearings in a publication that is distributed in every part of the county in which it is located. While the advertisement must be "published in a newspaper of general paid circulation in the county," this particular requirement is met if the municipality's advertisement appears in a "newspaper of general paid circulation" that is published in (but not necessarily throughout) the county. As the definitional provisions of Section 163.3164(14), Florida Statutes, reflect, "general . . . circulation" refers primarily to the contents of the publication, not its geographical distribution. Cf. Johnson
v. Taggart, 92 So.2d 606, 607-08 (Fla. 1957)(statutory requirement that "the notice for a county tax deed be published in a newspaper which has been published in the county for a period of one year
and entered as second-class mail in a post office in the county" was met, notwithstanding that the newspaper containing the notice had no circulation in certain parts of the county; newspaper must "be one of general circulation although it is not required that it be read by everyone in the county so long as it is available to the general public"); People ex rel. Toman v. 110 South Dearborn Street Building Corporation, 372 Ill. 459, 24 N.E. 2d 373 (Ill.
1939)(statute providing that notice be given in a secular newspaper of general circulation published in the district does not require that the newspaper in which the notice is placed have a general circulation "throughout" the district); Delta & Pine Land Company of Mississippi v. Board of Supervisors of Bolivar County, 228 So.2d 893 (Miss. 1969)(statutory requirement that notice be published "in a newspaper published in said county" was met even though the newspaper carrying the notice was not published in that part of the county where the subject property was located); Great Southern Media Inc. v. McDowell County, 284 S.E.2d 457 (N.C. 1981).
The purpose of statutory provisions, such as those found in Chapters 50 and 163, Florida Statutes, which limit the publication of legal notices and advertisements to newspapers meeting certain standards is to ensure that the published material will come to the attention of a substantial number of persons in the affected area. See In re Norwalk Call, 41 Cal. Rpt. 666, 397 P.2d 426 (Cal. 1964); Butler v. Lahontan Valley News, 537 P.2d 320, 321 (Nev. 1975). There is no indication in the record that this purpose was thwarted by the City Commission's publication of notice in the "Beaches Neighbors" section of the Miami Herald, which is distributed not only in the City of Miami Beach, but in surrounding areas as well.
In view of the foregoing, Petitioners' contention that the City Commission did not comply with the notice requirements of Section 163.3184(15)(c), Florida Statutes, is without merit.
Therefore, even if Petitioners had standing to advance the allegation in the instant case that the City Commission failed to comply with the notice requirements of Section 163.3184(15)(c), Florida Statutes, since they have made an insufficient showing in support of their allegation, the City Commission's determination of compliance, with respect to this matter, would nonetheless have to be sustained.
The RM-2 Designation: Supporting Surveys, Studies and Data
In paragraph 11 of their petition, Petitioners allege that, in designating the north end of Belle Isle RM-2, the City Commission "failed to apply sound land use planning law and principles" and acted "in violation of Section 163.3177(6)(a), F.S."
Section 163.3177(6)(a), Florida Statutes, provides in pertinent part as follows:
In addition to the requirements of subsections (1)-(5), the comprehensive plan shall include the following elements:
A future land use plan element designating proposed future general distribution, location, and extent of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities and other categories of the public and private uses of land. . . . The future land use plan shall be based upon surveys, studies and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; and the
need for redevelopment, including the renewal
of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community.
The foregoing provisions of Section 163.3177(6)(a), Florida Statutes, must be read in pari materia with the provisions of Sections 163.3164(2) and 163.3171(2), Florida Statutes, as well as those of Section 163.3177(8) and (10)(e), Florida Statutes.
Section 163.3164(2), Florida Statutes, defines the term "area," as used in Chapter 163, Part II, Florida Statutes, as "the total area qualifying under the provisions of this act, whether this be all of the lands lying within the limits of an incorporated municipality, lands in and adjacent to incorporated municipalities, all unincorporated lands within a county, or areas comprising combinations of the lands in incorporated municipalities and unincorporated areas of counties."
The "total area" over which a municipality is authorized to exercise authority pursuant to Chapter 163, Part II, Florida Statutes, is described in Section 163.3171(1), Florida Statutes, as follows:
A municipality shall exercise authority under this act for the total area under its jurisdiction. Unincorporated areas adjacent to incorporated municipalities may be included in the area of the municipal jurisdiction for the purposes of this act if the governing bodies of the municipality and the county in which the area is located agree on the boundaries of such additional areas, on procedures for joint action in the
preparation and adoption of the comprehensive plan, on procedures for the administration of land development regulations or the land development code applicable thereto, and on the manner or representation of any joint body or instrument that may be created under the joint agreement. Such joint agreement shall be formally stated and approved in appropriate official action by the governing bodies involved.
Accordingly, in the case of an incorporated municipality, such as the City of Miami Beach, that has not entered into a joint agreement expanding the geographical scope of its authority, the "area" which must be addressed in the "surveys, studies and data" required by Section 163.3177(6)(a), Florida Statutes, is the entire municipality. Therefore, if the "surveys, studies and data" upon which such an incorporated municipality's future land use plan is based relate to the municipality as a whole, the "surveys, studies and data" requirement of Section 163.3177(6)(a), Florida Statutes, is met.
Section 163.3177(6)(a), Florida Statutes, does not require that a local government, before making land use designations, examine "surveys, studies and data" regarding particular parcels of land, neighborhoods or regions within its jurisdictional boundaries. 21/ The information upon which the local government relies need not be that specific. To satisfy the "survey, studies and data" requirement of Section 163.3177(6)(a), Florida Statutes, the local government, in designating the "proposed future general distribution, location, and extent of the uses of land," need only rely upon general information regarding the total land area within its jurisdictional boundaries.
In accordance with Section 163.3177(8), Florida Statutes, the general information upon which these land use designations are based must be "appropriate."
Section 163.3177(10)(e), Florida Statutes, also mandates that the information relied upon be "appropriate." In addition, it requires the local government to use only information that was gathered through the utilization of "professionally accepted" data collection methodologies. The methodologies employed need only be "professionally accepted." To comply with Section 163.3177, Florida Statutes, they need not be the best methodologies available.
Subsection (10)(e) of Section 163.3177, Florida Statutes, further provides that a local government need not engage in "original data collection" to meet the requirements of Section 163.3177, Florida Statutes. "Original data," however, may be relied upon by the local government, provided that it was the product of a "professionally accepted" methodology.
As required by Section 163.3177(6)(a), Florida Statutes, the City of Miami Beach's Year 2000 Comprehensive Plan contains a future land use element that designates the "proposed future general distribution, location, and extent of the uses" of the City's entire land area, including all of the parcels that comprise the north end of Belle Isle. An insufficient showing has been made to establish that these designations were not based upon the "surveys, studies and data" mandated by Section 163.3177(6)(a), Florida Statutes, or that these designations otherwise were made in derogation of the requirements of Section 163.3177(6)(a), Florida Statutes, as alleged by Petitioners. That the City Commission may not have had detailed information dealing specifically with each and every parcel on Belle Isle and the other Venetian Islands at the time it made these designations 22/ does not compel a contrary conclusion. 23/
Accordingly, the allegations of noncompliance made by Petitioners in paragraph 11 of their petition should be rejected as being without merit.
The RM-2 Designation: Internal Consistency
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."
In paragraphs 12 and 13 of their petition, Petitioners allege that the City's Year 2000 Comprehensive Plan fails to meet this requirement inasmuch as the RM-2 designation of the north end of Belle Isle is inconsistent with other provisions of the plan, specifically Objectives 4 and 5 of the conservation/coastal zone management element and the provisions of the plan dealing with historic preservation.
An examination of the plan, including those provisions specifically referenced by Petitioners in their petition, reveals no such internal inconsistencies, however. Objectives 4 and 5 of conservation/coastal zone management element, as well as the ends relating to historic preservation set forth in the plan, are attainable notwithstanding the RM-2 designation of the north end of Belle Isle. Because there is no conflict between the attainment of these objectives and ends and the development of the north end of Belle Isle in accordance with its RM-2 designation, the allegations of noncompliance made by Petitioners in paragraphs
12 and 13 of their petition should be rejected as being without merit.
The foregoing are the only compliance issues raised by Petitioners in their petition. 24/ Inasmuch as Petitioners have failed to meet their burden of proof with respect to these issues, a finding that the City's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, may not be made in the instant case.
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 in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of September, 1990.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
ENDNOTES
1/ The causeway is susceptible to such flooding and, during a hurricane, it may become virtually impassable.
2/ The "south end of Belle Isle," as used herein, refers to all land, with the exception of the three-acre City park, that lies to the south of the Venetian Causeway on Belle Isle.
3/ The Department of Community Affairs also used the "Beaches Neighbors" section of the Miami Herald to publish notice of its intent to find the City's Year 2000 Comprehensive Plan "in compliance."
4/ Virtually all of the land in the City is developed. While there are vacant lots scattered throughout the City, most of these lots previously had development on them.
5/ The remaining Venetian Islands within the jurisdictional boundaries of the City of Miami Beach are included in the Venetian/MacArthur Islands Neighborhood Study Area. The plan's supporting documents state that these islands "are exclusively single family, and no future land use changes are anticipated."
6/ The structures currently on the Stortford, Edelstein and Lido Spa parcels have FARs of .7, 1.5 and .8, respectively.
7/ The highrise condominium apartment buildings now standing on the south end of Belle Isle have FARs comparable to the maximum FARs permitted under the City's Year 2000 Comprehensive Plan for land designated RM-2.
8/ That is not to say, though, that it will not, under any circumstances, adversely affect Belle Isle's current residents.
9/ In the past, hurricane evacuation efforts in the City have been hampered by the inclination of many residents, especially those who are elderly, to wait until the last possible moment to leave their residences. The reluctance of residents to evacuate until it is absolutely necessary is borne out by studies which reflect that only 25% of those who are going to evacuate will do so before an evacuation order is given. By taking steps calculated to increase the number of pre-evacuation order evacuees, the City will be able to expedite the post-evacuation order evacuation process.
10/ Improving coordination among the various public and private agencies involved in evacuation efforts is perhaps the efficacious means of reducing evacuation times.
11/ The plan has been in existence for a number of years. 12/ The City's permanent population in 1987 was 99,936.
According to Dade County Planning Department projections, the City's permanent population will increase to 100,582 by 1993 and to 101,333 by the year 2000.
13/ The need to evacuate more people can be offset, not only by measures that the City can take to improve its emergency evacuation planning and the implementation of its emergency evacuation plans, but by steps others involved in the evacuation effort may take as well. For instance, improvements made by the National Hurricane Center in early storm detection and storm forecasting can result in a decrease in evacuation times.
14/ The causeway presently has sufficient capacity to handle the flow of traffic during a hurricane evacuation.
15/ Where an administrative proceeding involves a challenge to action of a legislative or quasi-legislative nature, such as in the instant case, unless the statute in question provides otherwise, it is the challenger that bears the ultimate burden of persuasion, notwithstanding that the challenger may not be asserting the affirmative on the issue before the administrative tribunal. See Rinker Materials Corporation v. Metropolitan Dade County, 528 So.2d 904, 906 (Fla. 3d DCA 1987)( "In enacting the ordinance amending the Dade County Comprehensive Development Master Plan the county commission was performing a legislative function"); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 787-88 (Fla. 1st DCA 1981)(while, as a general rule, the burden of persuasion is on the party asserting the affirmative of an issue in an administrative proceeding,
because rule-making is a "quasi-legislative action" deserving of deference, the burden of persuasion is upon those attacking rule- making action to show that it is an invalid exercise of authority).
16/ A local government is estopped from contending that a challenger to its adopted comprehensive plan failed to make the requisite pre-adoption objections if the local government wrongfully denied the challenger the opportunity to submit such objections. Cf. Carter v. Carter, 88 So.2d 153, 157 (Fla.
1956)("It is an axiom of the common law, supported by admirable concepts of common justice, that no person should be permitted to benefit from his own wrong. It is offensive to our sense of right that a wrongdoer be allowed to exploit his wrongs to the injury of another and to the profit of himself").
17/ This prerequisite to the filing of a petition pursuant to Section 163.3184(9), Florida Statutes, is not unlike the exhaustion requirement imposed upon those seeking circuit court certiorari review of zoning decisions. See First City Savings Corporation of Texas v. S & B Partners, 548 So.2d 1156, 1158 (Fla. 5th DCA 1989)("As long as due process is afforded, the circuit court in a certiorari proceeding should not fault the zoning authority for refusing to consider issues which were not properly presented before it at the public hearing;" opponents of rezoning application approved by the county commission, who had appeared before the county commission and objected to the requested rezoning, were not able to raise issues on certiorari that they had not submitted to the county commission for its consideration).
18/ Petitioners contend that such an exception should be made where a petitioner's challenge to an adopted comprehensive plan is based upon inadequate notice inasmuch as the statutory notice provisions are "jurisdictional in nature." Section 163.3184(1)(a), Florida Statutes, however, is not susceptible to such a construction. It makes no distinction between "jurisdictional" and "non-jurisdictional" compliance issues.
Provided that the petitioner received notice of the review and adoption proceedings and was not otherwise deprived of the opportunity to bring the matter to the attention of the local governing body during these proceedings, the petitioner's failure to have done so is fatal to any attempt by the petitioner to subsequently raise the issue of inadequate notice in a petition filed pursuant to Section 163.3184(9), Florida Statutes. Cf.
City of Fort Pierce v. Davis, 400 So.2d 1242, 1244 (Fla. 4th DCA 1981)( "a contestant may waive or be estopped from asserting a defect in notice as invalidating an ordinance"); Malley v. Clay County Zoning Commission, 225 So.2d 555, 557 (Fla. 1st DCA 1969)("while compliance with statutory notice of hearing is ordinarily mandatory and jurisdictional to the enactment of a
valid zoning ordinance, a contesting landowner may waive the right or be estopped to assert a defect in notice so as to invalidate the ordinance").
19/ While the City contends otherwise, the preponderance of the record evidence reflects that all Petitioners, including Cushing, made such an argument to the City Commission, either orally or in writing.
20/ Contrary to the position taken by the City regarding this matter, the City Commission was required to comply with the notice provisions of Section 163.3184(15)(c), Florida Statutes, inasmuch as the plan "change[d] the permitted uses of land or change[d] land use categories."
21/ Neither does it forbid a local government from taking such information into consideration in formulating its comprehensive plan.
22/ Although not required to do so by Section 163.3177(6)(a), Florida Statutes, the City Commission considered neighborhood studies in assigning land use designations. Among these neighborhood studies was a study of the West Avenue Neighborhood Study Area, of which Belle Isle is a part.
23/ The statutory scheme contemplates that such detailed, site- specific information will be examined after the adoption of a local government's comprehensive plan, when a development order is sought for a "particular piece of property" and it is necessary to determine whether the proposed development is consistent with the adopted plan. Section 163.3215, Fla. Stat.
24/ In their proposed recommended order, Petitioners contend for the first time that the RM-2 designation of the north end of Belle Isle is "inconsistent with the requirements of Section 163.3178(2)(d), F.S." Such an argument comes too late. In any event, the record does not establish that the City Commission failed to comply with the requirements of Section 163.3184(2)(d), Florida Statutes, which provides in pertinent part as follows:
Each coastal management element required by s. 163.3177(6)(g) shall . . . contain:
(d) A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element
in the event of an impending natural disaster.
The City's Year 2000 Comprehensive Plan contains such a component.
25/ In their proposed recommended order, the Edelsteins and Lido Spa Hotel simply adopt by reference the findings of fact proposed by the City, the Department and Stortford N.V.. They propose no findings of fact of their own.
26/ The motive of the City Commission in establishing a peak hour level of service of "D" for the Venetian Causeway is not germane to any of the compliance issues raised in this case. Cf. City of Pompano Beach v. Big Daddy's, Inc, 375 So.2d 281, 282 (Fla.
1979)("It is a fundamental tenet of municipal law that when a municipal ordinance of legislative character is challenged in court, the motives of the commission and the reasons before it which induced passage of the ordinance are irrelevant"); City of Coral Gables v. Coral Gables, Inc., 160 So. 476, 478 (Fla.
1935)("courts cannot inquire into the motives of members of a municipal council for the purpose of determining the validity of ordinances enacted by them"); City of Coral Gables v. Sakolsky, 215 So.2d 329, 333 (Fla. 3d DCA 1968), cert. denied, 225 So.2d 526 (Fla. 1969)("a city's motive in enacting a zoning or rezoning ordinance is not subject to judicial inquiry").
27/ Widening the Venetian Causeway is not the only way to offset the effect the further development of Belle Isle while have on the time its takes to complete the evacuation of the island's residents.
28/ According to the testimony of John Taylor, which the Hearing Officer has credited, "[hurricane evacuation] planning is never totally completed."
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6804GM
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties 25/ :
Petitioners' Proposed Findings of Fact
1-2. Accepted and incorporated in substance, although not necessarily recited verbatim, in the Hearing Officer's Findings of Facts.
3. First sentence: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact; Second sentence: Accepted and incorporated in substance.
4-5. Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: To the extent that it states that the "City Commission established a level of service 'D' (congested) on the Venetian Causeway," this proposed finding has been accepted and incorporated in substance. Otherwise it has been rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer. 26/ Third sentence: To the extent that it asserts that the "existing (actual) level of service is 'A' (freeflowing)," this proposed finding has been accepted and incorporated in substance. Otherwise is has been rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
First, second and third sentences: Accepted and incorporated in substance; Fourth sentence: Rejected because it is not supported by the greater weight of the record evidence; 27/ Fifth sentence: Accepted and incorporated in substance.
9-11. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is contrary to the greater weight of the record evidence. 28/
Rejected because it would add only unnecessary detail the Findings of Fact made by the Hearing Officer.
Accepted and incorporated in substance. The City's Proposed Findings of Fact
Accepted and incorporated in substance.
To the extent that it states that Petitioner Cushing did not submit any objections to the plan, this proposed finding has been rejected because it is contrary to the greater weight of the record evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
4-6. Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
7-10. Accepted and incorporated in substance.
11. Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
12-14. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that it makes reference to Ordinance 89- 2665, this finding has been rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
18-19. Accepted and incorporated in substance.
To the extent that it asserts that the enumerated factors "are appropriate [for] consideration under sound land-use planning law," this proposed finding has been rejected because it is more in the nature of a conclusion or statement of law than a finding of fact.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it constitutes immaterial argument.
22-26. Accepted and incorporated in substance.
First sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it is more in the nature of a conclusion or statement of law than a finding of fact.
First sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Second and third sentences: Accepted and incorporated in substance.
First and second sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Third and fourth sentences: Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
31-34. Accepted and incorporated in substance.
The Department's Proposed Findings of Fact 1-2. Accepted and incorporated in substance.
3. To the extent that it suggests that the RM-2 designation, under all circumstances, bars residential development in excess of
100 dwelling units per acre, this proposed finding has been rejected because it is not supported by competent substantial evidence. Otherwise it has been accepted and incorporated in substance.
4-5. Accepted and incorporated in substance.
6. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact.
7-8. Accepted and incorporated in substance.
9. First sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.
10-13. Accepted and incorporated in substance.
Rejected because it is not supported by competent substantial evidence.
Accepted and incorporated in substance. Stortford N.V.'s Proposed Findings of Fact
Rejected because it is more in the nature of a statement of the case than a finding of fact.
First sentence: Rejected because it is more in the nature of a conclusion or statement of law than a finding of fact; Second sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
3-8. Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
To the extent that it asserts that the public hearings were "in compliance with Section 163.3184(15), Florida Statutes," this proposed finding has been rejected because it is more in the nature of a conclusion or statement of law than a finding of fact. Otherwise, it has been accepted and incorporated in substance.
Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
First and second sentences: Rejected because they are more in the nature of argument concerning the adequacy of Petitioners' proof than findings of fact; Third sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance; Fourth and fifth sentences: Rejected because they are summaries of testimony rather than findings of fact based upon such testimony; Sixth sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact.
Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of statements of the case, albeit accurate ones, than findings of fact.
To the extent that it states that the buildings currently on the Stortford parcel have an FAR of .7 and that the Edelstein parcel is 1.6 acres, this proposed finding has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Eighth sentence: Rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First and second sentences: Rejected because they are not supported by competent substantial evidence; Third sentence: Accepted and incorporated in substance.
To the extent that it asserts that the south end of Belle Isle's zoning classification was changed from single-family to multifamily use in 1949, rather than 1951, this proposed finding has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
First, fifth, sixth, seventh, eighth, ninth and tenth sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Second, third, fourth and eleventh sentences: Rejected because they are more in the nature of conclusions or statements of law than findings of fact; Twelfth and thirteenth sentences: Accepted and incorporated in substance; Fourteenth sentence: Rejected because it is more in the nature of argument concerning the adequacy of Petitioners' proof than a finding of fact.
Accepted and incorporated in substance.
To the extent that it suggests that the widening of the Venetian Causeway will not have an adverse effect on its value as a historic resource, this proposed finding has been rejected because it is not supported by the greater weight of the record evidence. Otherwise, its has been accepted and incorporated in substance.
First sentence: Rejected because it is more in the nature of a conclusion or statement of law than a finding of fact; Remaining sentences: Accepted and incorporated in substance.
To the extent that this proposed finding states that Petitioner Benson "resides on Di Lido Island, Miami Beach," that she "attended the Miami Beach Commission meeting of September 21, 1989, representing herself as an individual and the Venetian Islands Improvement Association," that "there are two drawbridges on [the] Venetian Causeway" and if one the drawbridges were "stuck
. . . it would dictate a west or east evacuation," this proposed finding has been accepted and incorporated in substance.
Otherwise, it has been rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First statement: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact; Second sentence: Accepted and incorporated in substance; Third and fourth sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
First, fourth, fifth and sixth sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Second and third sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer.
Second, third and fifth sentences: Rejected because they would only add unnecessary detail to the Findings of Fact made by the Hearing Officer; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
Second sentence: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact; Fifth and twenty-sixth sentences: Accepted and incorporated in substance; Sixth, twentieth, twenty-second and twenty-ninth sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Tenth sentence: Rejected because it is more in the nature of argument concerning the weight to be given to a witness' testimony than a finding of fact based upon such testimony; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
First sentence: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact; Second and sixth sentences: Accepted and incorporated in substance; Ninth, eleventh and twelfth sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Tenth sentence: Rejected because it constitutes argument concerning evidence adduced at hearing rather than a finding of fact based upon such evidence; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
First and fifteenth sentence: Rejected because they are more in the nature of statements of the case, albeit accurate ones, than findings of fact; Sixteenth sentence: Rejected because it is more in the nature of argument concerning the qualifications of an expert witness than a finding of fact based upon the expert's testimony; Third through fourteenth sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
First and seventh sentences: Rejected because they are more in the nature of statements of the case, albeit accurate ones, than findings of fact; Second through sixth, eleventh, twelfth, twenty-fifth and twenty-seventh through thirtieth sentences: Rejected because they would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Thirteenth sentence: To the extent that it suggests that the "City's Hurricane Plan" is a part of the comprehensive plan adopted by the City Commission, this proposed finding has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been rejected because it would add only unnecessary detail to the Findings of Fact made by the Hearing Officer; Nineteenth and twentieth sentences: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
First sentence: Rejected because it is more in the
nature of a statement of the case, albeit an accurate one, than a finding of fact; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
First sentence: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact; Second, seventh, tenth, eleventh and twelfth sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony; Third through sixth, eighth, thirteenth and fourteenth sentences: Accepted and incorporated in substance.
First sentence: Rejected because it is more in the nature of a statement of the case, albeit an accurate one, than a finding of fact; Fifth, sixteenth, seventeenth and eighteenth sentences: Accepted and incorporated in substance; Remaining sentences: Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
42-43. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
COPIES FURNISHED:
John G. Fletcher, Esquire 7600 Red Road
Suite 304
South Miami, Florida 33143
Richard J. Grosso, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Debora J. Turner, Esquire John C. Dellagloria, Esquire Office of the City Attorney City of Miami Beach
1700 Convention Center Drive Miami Beach, Florida 33319
Ira M. Elegant, Esquire Commonwealth Building, 4th Floor
46 Southwest First Street Miami, Florida 33130
Luciano Isla, Esquire 1800 W. 49th Street Hialeah, Florida 33012
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
MINETTE BENSON, BEATRICE DURCHSLAG, ROSLYN KREITMAN, FLORENCE SHIFF, ROBERT B. CUSHING, ESTELLE KOHN, and VENETIAN ISLANDS IMPROVEMENT ASSOCIATION, INC.,
Petitioners
DOAH CASE NO.
vs. 89-6804 GM
CITY OF MIAMI BEACH and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents,
and STORTFORD N.V., MARK EDELSTEIN, CRAIG EDELSTEIN, SHEPARD EDELSTEIN, and
LIDO SPA HOTEL,
Intervenors.
/
FINAL ORDER
A Hearing Officer of the Division of Administrative Hearings has entered his Recommended Order in this proceeding. A copy is attached to this Order as Exhibit A.
BACKGROUND
This is a proceeding in which the Petitioners have challenged the comprehensive plan adopted by the City of Miami Beach ("City" hereafter) in accordance with the Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, Part II, Fla. Stat. ("Act" hereafter). The Department of Community Affairs ("Department" hereafter) issued a notice of intent to find the comprehensive plan in compliance with the Act. Petitioners filed a petition in accordance with Sec. 163.3184 (9), Fla. Stat.,
alleging that the plan was not in compliance with the Act. They alleged that the plan is not in compliance because of land use designations on Belle Isle, a community within the City, and because of the nature of the City's published notice of plan adoption meetings. The Department forwarded the petition to the Division of Administrative Hearings. A Hearing Officer was assigned, and the final hearing was conducted on May 23 and 24, 1990, in Miami Beach.
Another petition challenging the City's comprehensive plan was filed by different parties. That petition was also forwarded to the Division of Administrative Hearings where it was given Case No. 89-6803GM. Issues raised in the two proceedings were distinct, and the proceedings were not consolidated. The hearing in Case No. 89-6803GM was conducted the day before the hearing in the instant proceeding. The Hearing Officer entered a Recommended Order in Case No. 89-6803GM. The Department has entered a Final Order, which adopts the Recommended Order in most respects, but rejects conclusions of law related to issues of the standing of parties challenging the City's comprehensive plan. A final determination of whether the City's plan is in compliance with the Act was delayed, pending the Hearing Officer's Recommended Order in this proceeding.
The Hearing Officer has entered detailed findings of fact and conclusions of law. He determined that the comprehensive plan was in compliance with the Act, and recommended that the Department enter a final order finding the plan in compliance. Petitioners have filed exceptions to the Recommended Order. The city and the Intervenor, Stortford N.V., have filed responses to the exceptions. The remaining intervenors have adopted these responses.
The Recommended Order was received by the Department on September 26, 1990. The parties have agreed to extend the time set out at Sec. 163.3184 (9) (b), Fla. Stat. for the Department to enter its final order until November 2, 1990.
RULINGS ON EXCEPTIONS
Exception 1
Petitioners take exception to the Hearing Officer's finding of fact set out at footnote 7 of the recommended order. They contend that the high rise condominium apartment buildings on the south end of Belle Isle have lower densities than would be allowed under the comprehensive plan.
The Department can reject findings of fact in the Recommended Order only if it determines from a review of the complete record
that findings are not supported by competent substantial evidence, or that the proceedings departed from essential requirements of law. Sec. 120.57 (1) (b) 10, Fla. Stat. Other than expressing disagreement with the Hearing Officer's findings of fact in footnote 7, Petitioners have not demonstrated that the finding is not adequately support in the record of proceedings. There is competent substantial evidence that supports the finding See: the Transcript of final hearing ("Tr." hereafter), Vol. III, pp. 93- 96, and Plaintiff's Exhibit 8.
Petitioners' first exception is rejected.
Exception 2
Petitioners take exception to the findings of fact set out at paragraph 69 of the Recommended Order. The Hearing Officer found that the north end of Belle Isle is suitable for high rise residential development of the sort permissible under the City's comprehensive plan. Petitioners assert that this finding is actually a conclusion of law.
The question of whether an area is suitable for one sort of land use or another presents a mixed question of law and fact.
There is ample evidence in the record to support the Hearing Officer's finding.
Petitioners' second exception is rejected.
Exception 3
Petitioners assert that footnote 9 of the Recommended Order is based upon "wishful thinking." There is competent substantial evidence in the record, however, to support the finding. See: Tr. Vol. II, pp. 18-39; and Vol. III, pp. 10-66).
Petitioners' third exception is rejected.
Exception 4
Petitioners take exception to the Hearing Officer's findings of fact related to hurricane evacuation. These findings are set out in Paragraphs 75-79 of the Recommended Order. Petitioners have offered no citations to the record that support their exception. There is ample testimony in the record to support the Hearing Officer's findings. See: Tr. Vol. II, Pp. 37-38; Vol.
III, pp. 23-24.
Petitioners' fourth exception is rejected.
Exception 5
Petitioners take exception to the findings of fact in paragraph 79 of the Recommended Order. The Hearing Officer therein made findings regarding provisions of the City's comprehensive plan relating to the Venetian Causeway. Belle Island is located along the causeway. Petitioners contend that the Hearing Officer should have given greater weight to the testimony of a witness who testified on their behalf.
Again, the Department cannot reject a finding of fact unless it is not supported by competent substantial evidence in the record. The mere fact that there may be evidence in the record that would support a contrary finding would not justify rejection of a finding of fact in the Recommended Order. In this instance, the Hearing Officer's finding is based directly upon provisions of the City's comprehensive plan, evidence that is both competent and substantial.
Petitioners' fifth exception is rejected.
Exception 6
Petitioners take exception to the conclusions of law 17, 18, and 19. In these paragraphs, the Hearing Officer concluded that Petitioners lack standing to raise issues regarding compliance of the City's comprehensive plan that were not specifically addressed by Petitioners in objections they made in review and adoption hearings conducted by the City. Petitioners' challenge to the plan was based upon land use designations on Belle Isle, and upon asserted deficiencies in the notice that was provided by the City. Petitioners had objected to the plan on account of the land use designations in review and adoption proceedings, but did not raise objections relating to notice. The Hearing Officer concluded that Petitioners are limited to raising issues in the formal proceeding under Sec. 163.3184 (9), Fla. Stat. that they had specifically raised as objections during review and adoption proceedings conducted in accordance with Sec. 163.3184 (7), Fla. Stat.
The Department has rejected the Hearing Officer's conclusions of law set out in paragraphs 17, 18, and 19 for the reasons set out below. Accordingly, Petitioners' sixth exception is granted.
Exception 7
Petitioners take exception to conclusions of law set out at paragraphs 25-30 of the Recommended Order. These conclusions relate to the propriety of the public notice provided by the City regarding scheduled plan adoption hearings. The City published notice in the "Neighbors" section of the Miami Herald. Petitioners
contend that the Neighbors section is not distributed throughout Dade County, and does not meet the requirements of Sec. 163.3184
(c), Fla. Stat.
The Department has previously concluded that publishing notices of plan adoption hearings in this section of the Miami Herald meets the requirements of the Act. Falk v. City of Miami Beach, FALR , DOAH Case No. 90-6803GM (Final Order entered September 12, 1990).
For the reasons set out in paragraphs 25-30 of the Recommended Order, Petitioners' seventh exception is rejected.
Exception 8
Petitioners take exception to the conclusions of law at paragraphs 43-46 of the Recommended Order. The Hearing Officer concluded that there were no internal inconsistencies between the land use designations on Belle Isle and other provisions of the City's comprehensive plan, and that Petitioners failed to meet their burden of proof to establish that the plan is not in compliance with the Act.
Based upon the findings of fact in the Recommended Order, and for the reasons set out in paragraphs 43-46 of the conclusions of law, Petitioners' Eighth exception is rejected.
FINDINGS OF FACT
The Findings of Fact set out in the Hearing Officer's Recommended Order are hereby adopted, and incorporated herein by reference.
CONCLUSIONS OF LAW
Conclusions of Law 1-16, and 20-46 set out in the Hearing Officer's Recommended Order are hereby adopted, and incorporated herein by reference.
Conclusions of Law 17, 18, and 19 set out in the Hearing Officer's Recommended Order are hereby rejected. The following conclusions of law are substituted for the rejected conclusions.
In order to establish standing to challenge a local government comprehensive plan under Sec. 163.3184 (9), Fla. Stat., Petitioners must have submitted oral or written objections during the local government review and adoption proceedings. Review and adoption proceedings are conducted by the local government after the Department has issued its "Objections, Recommendations and Comments Report" and before
the plan is adopted. Sec. 163.3184 (7), Fla. Stat.; Austin
v. Department of Community Affairs, ER FALR 89: 0128 (Administration Commission, 1989).
The City and Intervenors contended, and the Hearing Officer concluded, that in challenging the local government comprehensive plan under Sec. 163.3184 (9), Fla. Stat., Petitioners are limited to raising those issues that they raised in objections presented to the local government. The Act does not limit in this fashion the right of citizens who meet the definition of "affected persons."
The Legislative intent to open local government comprehensive planning to public participation is clearly stated in the Act. Section 163.3181, Fla. Stat. provides:
It is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible. Towards this end, local planning agencies and local governmental units are directed to adopt procedures designed to provide effective public participation in the comprehensive planning process and to provide real property owners with notice of all official actions which will regulate the use of their property. The provisions and procedures required in this act are set out as the minimum requirements towards this end.
During consideration of the proposed plan or amendments thereto by the local planning agency or by the local governing body, the procedures shall provide for broad dissemination of the proposals and alternatives, opportunity for written comments, public hearings as provided herein, provisions for open discussion, communications programs, information services and consideration of and response to public comments.
This clear intent to open the process to the fullest possible public participation (see also Rule 9J- 5.004, Fla. Admin. Code) was carried over in the Act to very liberal provisions governing who has standing to intervene in formal proceedings related to whether a plan is in compliance with the Act, or to initiate such proceedings.
In view of the clear Legislative intent, it is appropriate in interpreting standing requirements that no conditions be attached that the Legislature has not established.
The Legislature has not seen fit to limit citizen standing to intervene in or initiate plan review proceedings to issues that the citizen specifically raised in objections directed to the local government. The Act does limit issues that can be raised by the Department. The Department can only determine a plan not in compliance with the Act with regard to matters that it raised in its review of the local government's proposed plan, or that are changes made by the local government after the Department's review of the proposed plan. Secs. 163.3184 (8) (a) 1 and 2, Fla. Stat. The Legislature saw fit to limit the Department in raising issues regarding compliance of a plan. It did not limit citizen participation in the same fashion. The Act should not be interpreted to add the limitation.
Petitioners have standing to raise issues regarding both the land use designations on Belle Isle and the propriety of the notice of public hearings scheduled to adopt the plan.
ORDER
The Comprehensive Plan adopted by the City of Miami Beach is determined to be in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act.
NOTICE OF RIGHTS
The parties to this proceeding are hereby advised of their right to seek judicial review of this Final Order pursuant to Section 120.68, Fla. Stat., and Florida Rules of Appellate Procedure Rules 9.030 (1) c and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Rhyne Building, 2740 Centerview Drive, Tallahassee, Florida 32399-2100, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. A Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22 (3), Fla. Stat.
DONE and ORDERED this 12th day of November, 1990.
Thomas G. Pelham, Secretary
Florida Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Copies Furnished:
John G. Fletcher, Esquire 7600 Red Road
Suite 304
South Miami, Florida 33143
David J. Russ
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Debora J. Turner, Esquire John C. Dellagloria, Esquire Office of the City Attorney City of Miami Beach
1700 Convention Center Drive Miami Beach, Florida 33319
Ira M. Elegant, Esquire Commonwealth Building, 4th Floor
46 Southwest First Street Miami, Florida 33130
Luciano Isla, Esquire 1800 W. 49th Street Hialeah, Florida 33012
| Issue Date | Proceedings |
|---|---|
| Sep. 24, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 02, 1990 | Agency Final Order | |
| Sep. 24, 1990 | Recommended Order | No standing to challenge plan on grounds not raised before commission; plan not adopted contrary to notice requirements; plan in compliance. |
