STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY )
AFFAIRS, )
)
Petitioner, ) CASE NO. 90-3599GM
)
and )
) REDLAND CITIZENS ASSOCIATION, ) INC., THE SIERRA CLUB, ) THE LEAGUE OF WOMEN VOTERS, ) EVELYN B. SUTTON, MARTIN ) MOTES, FRANCES L. MITCHELL, ) CAROL RIST, ROD JUDE, and ) BRUCE ROHDE, )
)
Intervenors, )
)
vs. )
) METROPOLITAN DADE COUNTY, )
)
Respondent, )
)
and )
)
JOHN H. WELLENHOFER, )
CLIFFORD L. SUCHMAN, )
Trustee, SHANE SUCHMAN )
REAL ESTATE CORP., ) SUCHMAN DEVELOPMENT CORP., ) and ALAJUELA N.V., )
)
Intervenors. )
)
RECOMMENDED ORDER AND ORDER ON MOTION FOR SANCTIONS
Pursuant to notice, a formal hearing was conducted in this case on December 10-14, 1990, December 17-21, 1990, January 14-18, 1991, and January 28-30, 1991, in Dade County, Florida before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For the Department
of Community Affairs: Stephanie M. Callahan, Esquire
David J. Russ, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For the Redland Citi- zens Association, Inc., the Sierra Club, the League of Women Voters, Evelyn B. Sutton, Martin Motes,
Georgia Neill Watts, Frances L. Mitchell,
Rod Jude and Bruce Rohde: John G. Fletcher, Esquire
Suite 304
7600 Red Road
South Miami, Florida 33143
For Carol Rist: Richard Grosso, Esquire Legal Director
1000 Friends of Florida
P.O. Box 5948
Tallahassee, Florida 32314
For Metropolitan Dade
County: Joni Armstrong Coffey, Esquire Assistant County Attorney
111 N.W. 1st Street Suite 2810
Miami, Florida 33128-1993
For John H. Wellenhofer: Jeffrey E. Lehrman, Esquire
2699 South Bayshore Drive Suite 300 D
Miami, Florida 33133
For Clifford L. Suchman, Trustee, Shane Suchman Real Estate Corp., and
Suchman Development Corp.: Eileen Ball Mehta, Esquire
Carter McDowell, Esquire Stanley B. Price, Esquire Fine Jacobson Schwartz Nash
Block & England
One CenTrust Financial Center
100 S.E. 2nd Street Miami, Florida 33131
STATEMENT OF THE ISSUES
Whether the Department of Community Affairs (Department) should be precluded from prosecuting the instant challenge to the Comprehensive Development Master Plan (CDMP) of Metropolitan Dade County (Metro-Dade, Dade County or County), as amended by Ordinance No. 90-28, on the ground that it did not comply with the statutory prerequisites to instituting such a challenge?
Whether the Redland Citizens Association, Inc., the Sierra Club, the League of Women Voters, Evelyn B. Sutton, Martin Motes, Frances L. Mitchell, Rod Jude, Bruce Rohde and Carol Rist (hereinafter referred to collectively as "the Objectors") are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this matter and pursue their challenge to the CDMP, as amended by Ordinance No. 90-28?
Whether Carol Rist's motion to amend her petition for leave to intervene in this matter should be granted?
Whether the challenged amendments made to the CDMP through the adoption of Ordinance No. 90-28, specifically those resulting from the approval of Applications 39, 40 and 47, have rendered the CDMP not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes?
Whether John H. Wellenhofer is entitled to an award of fees and costs against the Department pursuant to Section 163.3184(12), Florida Statutes?
PRELIMINARY STATEMENT
Through the adoption of Ordinance No. 90-28 on March 27, 1990, the Dade County Board of County Commissioners (Board or County Commission) approved various applications to amend the CDMP. Among the applications approved by the Board were Applications 39, 40 and 47.
After conducting its review of the changes made to the CDMP as a result of the adoption of Ordinance No. 90-28, the Department issued a notice of intent, and a more detailed statement of intent, announcing its intention to find the changes resulting from the approval of Applications 39, 40 and 47 not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, and to find the remaining changes "in compliance." The matter was referred to the Division of Administrative Hearings by petition filed on June 8, 1990.
Thereafter, the case was assigned to the undersigned Hearing Officer.
On June 19, 1990, the Department filed a motion pursuant to Rule 22I- 6.004(4), Florida Administrative Code, requesting that the Hearing Officer allow it to file an amended petition. In its motion, the Department pointed out that its amended petition "merely allege[d] additional legal grounds for the findings of noncompliance in this case" and that it did "not introduce additional factual and substantive bases for noncompliance," nor did it "allege that any amendments other than those cited in the original petition are not 'in compliance.'"
Metro-Dade filed a memorandum in opposition to the motion on July 5, 1990. On July 6, 1990, the Hearing Officer issued an order granting the motion with the following caveat:
The Hearing Officer will decline to recommend that Metro-Dade's plan amendment be found not "in compliance" on any grounds alleged in the amended petition that, the evidence adduced at
the hearing in the instant case establishes, are beyond the scope of the compliance issues permitted by Section 163.3184(8)(a), Florida Statutes.
On June 26, 1990, the Objectors filed a joint petition for leave to intervene in the instant case. By order issued July 12, 1990, they were granted the intervenor status requested in their petition.1 John H. Wellenhofer, who had submitted Application 39 to the Board for its approval, Clifford L. Suchman, Trustee, Shane Suchman Real Estate Corp., and Suchman Development Corp. (hereinafter referred to collectively as the "Suchmans"), who had submitted Application 40 to the Board for its approval, and Alajuela N.V., who had submitted Application 47 to the Board for its approval, also sought, and were granted by the Hearing Officer, leave to intervene in this case. 2/ In his petition, Wellenhofer sought an award of attorney's fees and costs against the Department.
Metro-Dade filed a motion to dismiss the Department's amended petition on July 23, 1990. It contended in its motion that dismissal was warranted "[b]ecause the Department ha[d] based all of its allegations on grounds outside the scope of the Act, and ha[d] failed to fulfill the statutory conditions preced[ent] for invoking this [H]earing [O]fficer's subject matter jurisdiction over the amended petition." On August 27, 1990, the Suchmans filed a motion requesting the dismissal of the Department's amended petition on grounds similar to those raised by the Department in its previously filed motion to dismiss. In addition to attacking the amended petition filed by the Department, the Suchmans also challenged the petition for leave to intervene filed by the Objectors. The Hearing Officer denied both Metro-Dade's and the Suchmans' motions to the extent that they sought the entry of an order of dismissal prior to the taking of evidence. In so doing, however, he added the following:
The parties will be permitted at hearing to present evidence relating to the issues raised in [these] motion[s] to dismiss and, following the presentation of such evidence, to offer additional argument in support of their respec- tive positions on these issues, provided that the issues sought to be litigated are set forth in the prehearing stipulation the parties must file in accordance with the June 13, 1990 order issued by the Hearing Officer in the instant case. In the recommended order that he will issue after the close of the formal hearing
in this case, the Hearing Officer will address those issues raised in [these] motion[s] to dismiss that were litigated at hearing.
Metro-Dade and the Suchmans renewed their motions to dismiss at the outset of the final hearing, before the taking of any evidence. The Hearing Officer, however, declined to depart from his prior rulings on their motions.
Also at the outset of the hearing, before the taking of any evidence, Objector Carol Rist submitted a motion requesting permission to file an amended petition for leave to intervene. After Metro-Dade, Wellenhofer and the Suchmans expressed their opposition to the motion, the Hearing Officer announced that he would reserve ruling on the motion and address the matter in his Recommended Order.
At hearing, the parties presented the testimony of a total of 22 witnesses.
In addition to the testimony of these witnesses, the Department and the Objectors offered 44 exhibits and Metro-Dade, Wellenhofer and the Suchmans offered 61 exhibits. All exhibits offered by the parties were admitted into evidence. 3/ At the conclusion of the parties' evidentiary presentation, they each requested leave to conform their pleadings to the evidence that had been admitted without objection. The motion was granted.
On June 28, 1991, almost five months following the conclusion of the final hearing, Metro-Dade, Wellenhofer and the Suchmans filed a motion requesting that the Hearing Officer take official recognition of 1990 United States census data for Dade County, which, according to the motion, "was not available until after the conclusion of the [final] hearing but is now a matter of public record." Finding that they had not shown that the census data was "of sufficient probative value to justify the Hearing Officer's reopening of the record in this case for purposes of taking official recognition of this material," the Hearing Officer denied the motion.
On September 3, 1991, Metro-Dade, Wellenhofer and the Suchmans filed a joint proposed recommended order. The following day, the Department and Objectors filed their joint proposed recommended order. The proposed findings of fact set forth in these proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the record evidence, the following Findings of Fact are made: Metropolitan Dade County: A General Overview
Metropolitan Dade County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered by Broward County on the north, by Monroe County on the south and southwest, by Collier County on the northwest and by the Atlantic Ocean on the east.
Within the boundaries of Metropolitan Dade County are 1,413,629 acres, or approximately 2,209 square miles, of land and water.
The major natural features of the County are the Florida Everglades National Park, tropical vegetation, an Atlantic Ocean coastline with several peninsulas and inlets, including Biscayne National Park at Biscayne Bay, and several barrier islands and reefs. The County contains several bodies of water, including various lakes, rivers and streams. Among the most noteworthy water bodies are the Intracoastal Waterway in the eastern part of the County and the expansive wetland systems and their accompanying wildlife habitat located primarily in the western part of the County.
Among the major man-made features of the County are I
Florida Turnpike, the Metrorail System, canals, causeways connecting Miami Beach and the barrier islands to the mainland, Miami International Airport,
Kendall
Airport, and Homestead Air Force Base.
Metropolitan Dade County is Florida's most populous county with a population approaching two million people. On average, Dade County's population has grown by approximately 36,000 persons per year since the 1970's.
There are 26 incorporated municipalities located in Metropolitan Dade County, including the City of Miami, whose downtown area may be viewed as the principal focal point of the entire metropolitan area.
Metropolitan Dade County Home Rule Amendment, Charter and Selected Ordinances
In 1956, the statewide electorate adopted Article VIII, Section 11 of the 1885 Florida Constitution granting "the electors of Dade County, Florida, .
. . power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body." 4/
The following year, the electors of the County adopted such a home rule charter (Charter).
Section 1.01 of the Charter provides that the "Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government." The power to "[p]repare and enforce comprehensive plans for the development of the county" is expressly mentioned in Section 1.01 as within the Board's authority. Other powers of the Board specifically enumerated in Section 1.01 include the power to provide, regulate, develop and enforce master plans for the control of traffic; to provide and regulate sewage collection and disposal, waste collection and disposal and water supply programs; to establish and administer drainage programs; to establish and administer conservation programs; and to establish and administer housing programs.
Section 4.07 of the Charter establishes a Department of Planning as a unit of central metropolitan County government. This section provides as follows:
The department of planning shall be headed by a planning director appointed by the County Manager. The planning director shall be qual- ified in the field of planning by special training and experience. Under the supervision of the Manager and with the advice of the Planning Advisory Board elsewhere provided
for in this Charter, the planning director shall among other things:
Conduct studies of county population, land use, facilities, resources, and needs
and other factors which influence the county's development, and on the basis of such studies prepare such official and other maps and re- ports as, taken together, constitute a master plan for the welfare, recreational, economic, and physical development of the county.
Prepare for review by the Planning Advi- sory Board, and for adoption by the Board of County Commissioners, zoning, subdivision,
and related regulations for the unincorporated
areas of the county and minimum standards governing zoning, subdivision, and related re- gulations for the municipalities; and prepare recommendations to effectuate the master plan and to coordinate the county's proposed capital improvements with the master plan.
Review the municipal systems of planning, zoning, subdivision, and related regulations and make recommendations thereon with a view to coordinating such municipal systems with one another and with those of the county.
By ordinance, codified in Section 2-106.1 of the Code of Metropolitan Dade County, the Department of Planning has been designated as the County's local planning agency "responsible for the preparation of the Comprehensive Development master plan for the county."
Section 4.08(A) of the Charter directs the Board of County Commissioners to, "by ordinance create a Planning Advisory Board." The Board has done so. The Planning Advisory Board (PAB), as established by the Board, is a nine-member body. The members of the PAB are citizens appointed by the Board.
Section 5.02 of the Charter describes the powers that may be exercised by the County's municipalities. It provides as follows:
Each municipality shall have the authority to exercise all powers relating to local affairs not inconsistent with this Charter. Each municipality may provide for higher standards of zoning, service and regulation than those provided for by the Board of County Commis- sioners in order that its individual character
and standards may be preserved for its citizens.
Comprehensive Planning in the County: An Historical Perspective
Metropolitan Dade County's first Comprehensive Development Master Plan was adopted by the Board in 1965. This initial version of the CDMP was based upon the unrealistic projection that the County would have two and one half million residents at the planning horizon. To accommodate this projected population, it provided for a spread pattern of low density residential growth, served by numerous expressways.
Substantial changes to the CDMP were made in 1975 based upon a lower, more realistic population projection and a consideration of environmental and infrastructure constraints. The result was a plan that provided for a more compact form of urban development concentrated around nodes of activity in the eastern portions of the County.
The 1975 version of the CDMP introduced the concept of an urban development boundary. The urban development boundary (UDB) was, and remains to this date, an important part of the plan's urban containment strategy. As its name suggests, the UDB is a line drawn on the plan's future land use map (FLUM) that indicates where urban development will be permitted to reach by the end of the planning period.
Since 1975, the CDMP has been amended on various occasions. On eight of these occasions, including most recently in 1990, the amendments have included an expansion of the area inside the UDB. As a result of these amendments, the area inside the UDB has increased by more than 32,000 acres.
Notwithstanding the various amendments that have been made to the CDMP, its overall approach, focus and direction have remained essentially the same since 1975.
Since 1975, the CDMP's policies have "encourage[d] in-filling, redevelopment, and contiguous development in order to lessen urban sprawl and the associated transportation and energy costs." For years, the CDMP has required the coordination of development with services, the protection of agriculture as a viable economic use of land, the encouragement of a broad spectrum of housing allowing for choice of location, the protection of communities from encroachment by incompatible uses, and a wide variety of other goals, objectives and policies which remain the foundation of the CDMP.
The 1988 CDMP
In December 1988, the Board of County Commissioners adopted Ordinance No. 88-110 entitled "The Master Plan Amendatory Ordinance" (Amendatory Ordinance). The Amendatory Ordinance revised and reformatted the CDMP in an effort to comply with changes made to the state's growth management laws in 1985.
The CDMP's primary planning horizon was extended by the Amendatory Ordinance to the year 2000.
Like the current version, the version of the CDMP adopted in 1988 (1988 CDMP) had an statement of legislative intent and the following eleven separate elements, containing goals, objectives and policies and other textual material, as well as maps depicting future conditions, including a future land use map: land use; traffic circulation; mass transit; port and aviation; housing; conservation; water, sewer and solid waste; recreation and open space; coastal management; intergovernmental coordination; and capital improvements.
Prior to the adoption of the Amendatory Ordinance, the County's Planning Department prepared a "support component," containing background data and analyses, for each of the foregoing elements. These "support components" were used in the formulation of the 1988 CDMP and they were transmitted to the Department of Community Affairs for the Department's consideration during the compliance review process.
The 1988 CDMP: Land Use Element "Support Component"
The "support component" for the 1988 CDMP land use element (LUSC) was a 232-page document that analyzed existing and future land uses in Dade County, including the amount of land that would be needed and available to accommodate anticipated growth, the County's projected population, the environmental characteristics of the County's undeveloped land, the availability of urban services in the County, and those areas in need of redevelopment.
According to the LUSC, as of 1985, of the County's 1,413,629 acres, 86,111.5 acres (6.09%) were devoted to residential uses, 9,389.1 acres (.66%) were devoted to commercial uses, 770.3 acres (.05%) were devoted to hotels,
motels and other transient uses, 15,128.9 acres (1.07%) were devoted to industrial uses, 8,967.6 acres (.63%) were devoted to institutional uses, 660,620.7 acres (46.73%) were devoted to parks and recreational open space, 5/ 69,091.3 acres (4.89%) were devoted to transportation, communications and utilities, 93,187.6 acres (6.59%) were devoted to agriculture, 18,268.9 acres (1.29%) were inland waters, 162,640.0 acres (11.51%) were coastal waters, and 289,453.2 acres (20.48%) were undeveloped or vacant. Of this undeveloped or vacant land, 149,823.5 acres (10.55%) were environmentally sensitive.
The LUSC examined the pattern of growth in Dade County over the years and reported that, in the 1970's and 1980's, growth occurred primarily in the unincorporated area on the western fringe of the urbanized portion of the County. According the LUSC, this pattern of growth is anticipated to "persist throughout the remainder of this century and beyond." This projection was accompanied by the following explanation:
Urban development opportunities are limited on the coastal ridge and on the barrier islands because there is little remaining developable land. It is on the western fringes that land is available. In Dade County these western growth areas extend from the Broward line to the farm lands and open areas of South Dade.
With respect to what the future holds for the "urban interior," the following was stated:
In the County's urban interior, its central city areas, growth will be modest or nonexis- tent. In most of these areas there is little remaining developable land and projected de- clines in average household size will offset whatever new development occurs. The Downtown area . . . is projected to show some modest gains in the 1990s and beyond, as downtown development efforts succeed in attracting
more residents to the County's heart.
The LUSC also contained an analysis performed by the Planning Department of the supply of vacant land available for development and the demand that would exist for such land on a countywide and sub-area basis during the planning period. 6/
In determining the supply of land available for residential development, the Planning Department considered the development potential of only vacant and agricultural land inside the UDB, as it existed prior to the adoption of the 1988 CDMP (pre-1988 UDB). Neither redevelopment opportunities, nor the residential capacity of land outside the pre-UDB, were taken into consideration. For each tract of vacant and agricultural land inside the pre- 1988 UDB, the Planning Department ascertained the number of units that would be able to be built, employing a methodology that was described as follows in the LUSC:
This determination is based on the current [pre-1988] CDMP Land Use Plan density classi- fication, with numerous exceptions: In areas
where no neighborhood or municipal plan has been adopted since the CDMP map classification was established for the parcel, existing zoning is used if greater than agricultural use (AU) or general use (GU). Where the existing zoning is used and land is zoned and platted for single family use, the development capacity of this land is determined by counting the vacant platted lots. In addi- tion, whenever the density of zoned land is further limited by covenants or approved site plans, those conditions are reflected. Where land is unplatted and zoned for estate den- sity residential, but is designated on the CDMP in a higher residential density category and is substantially surrounded by land that is zoned or designated for higher residential density, the land is assigned the density of the surrounding development. Similarly, small parcels zoned AU or GU are assigned a zoning classification comparable to surrounding de- velopment. AU and GU parcels 10 acres or larger are assigned the Plan density appli- cable to the area. In places where neighbor- hood or municipal plans have been adopted or completed since the CDMP classification was
established for the parcel and the neighborhood or municipal plan shows a higher use or den- sity, the neighborhood or municipal plan density is used in estimating the development capacity. In instances where the existing zoning permits greater development than the neighborhood or municipal plan proposes, the zoned density is utilized. The gross supply for each area is discounted by a factor of 6 percent to reflect the finding that 6 percent of land in fully developed areas is typically vacant at any given time.
The methodology employed by the Planning Department to determine the supply of land available in the County to accommodate growth is professionally accepted.
To determine the demand that would exist for residential land during the planning period, the Planning Department first estimated the 1985 countywide population and then projected what the countywide population would be in the years 2000 and 2010. In so doing, it utilized a component methodology, which examined the three components of population change --births, deaths and migration. This methodology is professionally accepted. The Planning Department also made population estimates and projections for each of the minor statistical areas (MSAs) in the County. In making these estimates and projections, it used an extrapolation methodology that is professionally accepted. 7/ Pursuant to this methodology, a portion of the countywide projected population was allocated to each MSA based upon such factors as long- term subarea growth trends, estimates of current subarea population and existing subarea housing units, and subarea development capacity.
The Planning Department estimated that the 1985 countywide population was 1,771,000 and it projected that the countywide population would be 2,102,000 by the year 2000 and 2,331,000 by the year 2010. Its population estimates and projections for MSA 6.1 and MSA 6.2, which collectively comprise an area of the County on the western urban fringe known as West Kendall, and MSA 7.2, which is part of the South Dade area of the County, were as follows: 1985- MSA 6.1: 76,961; MSA 6.2: 36,820; MSA 7.2: 32,791; year 2000- MSA 6.1: 135,932;
MSA 6.2: 94,628; MSA 7.2: 44,127; year 2010- MSA 6.1: 162,611; MSA 6.2:
124,414; MSA 7.2: 52,518. It was noted in the LUSC that the West Kendall area was the "fastest growing part of Dade County in the 1970's and early 1980's" and that this area was "projected to account for about 38% of the County's growth" from 1985 to 1990. MSA 7.2 was described in the LUSC as among the "rapidly developing areas" of the County.
The countywide and MSA population estimates and projections made by the Planning Department not only appeared in the LUSC, but they were adopted by the Board of County Commissioners and included in the future land use element of the 1988 CDMP.
After making these population estimates and projections, the Planning Department sought to ascertain the future demand for new housing in the County. As it explained in the LUSC:
This projection is a function of the projected population increase. The methodology assumes that the mix of housing units in that area will remain as it is currently and that house- hold sizes will decline slowly. Residential unit requirements are derived from the pro- jected increase in households with a 5 percent allowance for vacancy of dwelling units.
The Planning Department projected that countywide demand would be 9,150 total units annually until 1990, 10,731 total units annually between 1990 and 1995,
10,983 total units annually between 1995 and the year 2000, 11,449 total units annually between the year 2000 and the year 2005 and 11,734 total units annually between the year 2005 and the year 2010. For MSA 6.2 and 7.2, the Planning Department's demand projections were as follows: MSA 6.2- 1,498 total units annually until 1990, 1,739 total units annually between 1990 and 1995, 1,630 total units annually between 1995 and the year 2000, 1,453 total units annually between the year 2000 and the year 2005, and 1,288 total units annually between the year 2005 and the year 2010; MSA 7.2- 269 total units annually until 1990,
309 total units annually between 1990 and 1995, 332 total units annually between 1995 and the year 2000, 360 total units annually between the year 2000 and the year 2005, and 373 total units annually between the year 2005 and the year 2010.
Having projected future housing demand, the Planning Department then compared the projected demand to the supply of available residential land and concluded that, assuming no additional residential capacity was added, there was a sufficient aggregate supply of single-family and multifamily housing units inside the pre-1988 UDB to accommodate projected growth until the year 2008. 8/ With respect to MSA 6.2 and MSA 7.2, the Planning Department concluded that the former had sufficient residential capacity to last until the year 2001 and that the latter's supply of residential land would be depleted a year earlier.
Notwithstanding its conclusion that there was a sufficient supply of residential land inside the pre-1988 UDB to last until the year 2008, the Planning Department recommended that the 1988 version of the CDMP provide even more residential capacity within the UDB. 9/ It explained its position on the matter as follows in the LUSC:
[The urban development boundary] contains sufficient capacities to sustain single family development until 2004 and
multi-family development until 2014. However, it is recognized that decisions regarding the development and purchase of residences involve complexities that trans-
cend the single consideration of the presence of vacant zoned land. Market conditions, neighborhood pressure, transportation or service deficiencies, and investment deci- sions can impede development of vacant parcels. 10/
The proposed land use plan for 2000 and 2010 includes substantially more additional land than indicated above to insure that no short- ages will occur. . . .
[T]he proposed LUP map for 2000 and 2010 in- cludes capacities for an additional 23,590 single family-type dwelling units in the area located between the 1990 urban development boundary of the comprehensive plan LUP map which is currently in effect, and the pro- posed year 2000 UDB of the proposed plan map.
The Planning Department also inventoried the supply of land available for industrial and commercial development in the County. As reported in the LUSC, it determined that, as of 1985, the County had almost a 50-year supply of industrial land and a 16.6-year supply of commercial land. It further determined, and reported in the LUSC, that, as of 1985, MSA 6.2 had a 5.1-year supply of commercial land and a 92.5-year supply of industrial land and that MSA
7.2 had a 10.1-year supply of commercial land and a 48.7-year supply of industrial land.
The 1988 CDMP: Compliance Review and Stipulated Settlement Agreement
The 1988 CDMP was submitted to the Department of Community Affairs for its review. On January 30, 1989, the Department issued its statement of intent to find the 1988 CDMP not "in compliance." The Department's objection to the plan concerned the low level of service standards the plan established for certain roadways. The Department subsequently, by petition, referred the matter to the Division of Administrative Hearings.
Thereafter, the Department and County entered into a stipulated settlement agreement. Pursuant to the agreement, the County was to make certain changes to the 1988 CDMP to satisfy the concerns expressed by the Department in its statement of intent. The changes involved the 1988 CDMP's capital improvements element and its traffic circulation element. The County was to amend the capital improvements element to incorporate the primary components of
the County's existing concurrency management system. The traffic circulation element was to be amended to establish three geographical zones or "tiers." One of the zones, the area inside the UDB east of the Palmetto Expressway (N.W. 77th Avenue), was to be denominated the "Urban Infill Area." 11/ The level of service standards for roadways in the Urban Infill Area were to be lower than those for roadways in the other two zones. Although these level of service standards for roadways in the Urban Infill Area were extremely low, and may have been unacceptable under other circumstances, it was felt that they were necessary, at least on a temporary basis, to promote infill development and encourage the use of mass transit, including the County's rapid rail system, which is underutilized.
The agreement provided that if the County made these changes, the Department would find the 1988 CDMP, as amended in accordance with the agreement, "in compliance" and would recommend to the Administration Commission that the compliance proceeding that had been initiated by the Department be dismissed without the imposition of any sanctions.
The County made the changes described the settlement agreement by adopting Ordinance No. 90-37.
On June 14, 1990, the Department published its notice of intent to find the 1988 CDMP, as amended by Ordinance No. 90-37, "in compliance."
This finding was made notwithstanding that the LUSC indicated that there was enough land inside the pre-1988 UDB to accommodate residential development well beyond the year 2000 and there had been, as a result of the Amendatory Ordinance's westward extension of the UDB and its redesignation of certain lands inside the realigned UDB, an addition to the existing supply of land available for residential development.
The 1989-1990 CDMP Amendment Application Cycle
A total of 71 applications to amend the CDMP were filed during the 1989-1990 CDMP amendment application cycle (Amendment Cycle).
Twenty-seven of these applications were filed by private citizens as authorized by County ordinance.
The remaining applications were filed by the Planning Department.
Of the 27 privately filed applications, 25 requested changes to the FLUM and two requested changes to the text of the CDMP's land use element. The Planning Director filed a like number of applications to amend the FLUM.
Application 39
Among the privately filed applications was Application 39, which was submitted by John H. Wellenhofer.
The subject of Application 39 was a 25-acre parcel of land owned by Wellenhofer (Wellenhofer's property).
Wellenhofer's property is in Study Area G and MSA 6.2. It is bounded on the north by Southwest 116th Street, on the south by Southwest 118th Street, on the east by Southwest 142nd Avenue and on the west by Southwest 144th Avenue.
The property was located near, but inside, the UDB as established by the 1988 CDMP (1988 UDB).
Through Application 39, Wellenhofer requested that the land use designation of his property on the FLUM be changed from "industrial and office" to "low density residential" (up to six dwelling units per gross acre).
Application 39 and the Tamiami Airport
The southern boundary of Wellenhofer's property lies two blocks, or approximately 660 feet, to the north of Tamiami Airport.
The Tamiami Airport, which was opened in 1967, serves as a general aviation reliever for Miami International Airport. Tamiami is 1,380 acres in size and is the busiest general aviation airport in the County. The aircraft that use Tamiami are light aircraft, principally single and twin propeller driven airplanes. Tamiami does not, and in any event is not equipped to, handle commercial aircraft.
Tamiami has three runways: (1) the north runway (9L-27R), an east- west runway; (2) the south runway (9R-27L), a parallel east-west runway; and
the diagonal runway (13-31), a northwest-southeast runway.
The north runway, which is the runway closest to Wellenhofer's property, lacks facilities to permit navigation by instrument for flights at night or in inclement weather.
The flight pattern for the north runway is an oval shape. Wellenhofer's property is not under any portion of this flight pattern, nor is it under the flight patterns for the other two runways. It lies in the center of the oval created by the flight pattern for the north runway. It should be noted, however, that there are instances where aircraft, for one reason or another, deviate from these flight patterns.
Residential communities in the vicinity of Tamiami already exist. A recent proposal to lengthen the south runway was opposed by a large number of the residents of these communities. In the face of such opposition, no action was taken on the proposal.
Because of the noise generated by airport operations, residential uses in the area surrounding an airport may be incompatible with those operations. 12/ The CDMP recognizes that there is the potential for such land use incompatibility. It mandates that the federal government's 65/75 LDN contour standard contained in 14 C.F.R., Part 150, be used to determine if a particular residential use in the vicinity of an airport would be incompatible with the operations at that airport.
The noise contour at 65 LDN for the north runway at Tamiami does not leave the airport property and barely leaves the runway itself. That is not to say, however, that one standing on Wellenhofer's property cannot hear the sound of aircraft using the airport.
Wellenhofer's property is separated from Tamiami by land that is designated on the FLUM for "industrial and office" use. An identical 660 foot, "industrial and office" buffer separates the airport from the residential lands that lie to the south of the western end of the airport.
The area immediately to the north, to the south and to the east of Tamiami is denominated an "employment center" in the CDMP. Accordingly, a substantial amount of land in this area, particularly to the east of the airport, has been designated on the FLUM for "industrial and office" use.
Land immediately to the west of the site of current airport operations at Tamiami is designated on the FLUM for "transportation-terminals" use. Immediately west of this land is a large expanse of land, outside the UDB, which is designated on the FLUM for "agriculture" use.
The CDMP's port and aviation facilities element indicates that "future aviation facility improvements are proposed to be made on or adjacent to the sites of existing airports" in the County and that the "westward 1,900 foot extension of the southern runway at Tamiami Airport" is one such proposed improvement that will be the subject of future consideration.
Application 40
Another application filed by a private applicant during the Amendment Cycle was Application 40. It was submitted by the Suchmans.
The subject of Application 40 was 320 acres of land (Application 40 property) located in Study Area G and MSA 6.2 and bounded on the north by Southwest 136th Street, on the south by Southwest 152nd Street, on the east by Southwest 157th Avenue and the Black Creek Canal, and on the west by Southwest 162nd Avenue.
This land was located outside, but contiguous to on the north and east, the 1988 UDB.
Immediately to the north of the Application 40 property is land that is shown on the FLUM as part of the western end of the Tamiami Airport.
The CSX railroad tracks run parallel to the southern perimeter of the airport and they bisect the Application 40 property.
The land immediately to the east of the Application 40 property which is north of the railroad tracks is designated on the FLUM for "industrial and office" use.
The land immediately to the east of the Application 40 property which is south of the railroad tracks is designated on the FLUM for "low density residential communities" use.
The land immediately to the south and the west of the Application 40 property is designated on the FLUM for "agriculture" use.
At the time of the filing of Application 40, the area immediately surrounding the Application 40 property was undeveloped and in agricultural use.
By the time of the formal hearing in the instant case, however, residential development was underway on a portion of the land immediately to the east of the Application 40 property which is south of the railroad tracks. Further to the east is a large scale residential development known as "Country Walk."
The Suchmans own 190 acres of the Application 40 property. All but 30 acres of the land they own is on the western side of the property.
The Suchmans first acquired an interest in the property in 1973 or 1974. They are in the real estate business and they purchased the property for investment purposes.
While the Suchmans are not involved in the agricultural business, over the years they have leased their land to tenants who have used it for agricultural purposes. Since about 1987, it has become increasingly difficult, albeit not impossible, for the Suchmans to find such tenants. At least up until the time of the formal hearing in the instant case, their property was being actively farmed.
The Suchmans, through Application 40, originally sought to have the land use designation of the Application 40 property north of the railroad tracks changed from "agriculture" to "industrial and office" and to have the land use designation of the remaining 280 acres of the property changed from "agriculture" to "low density residential." 13/ Subsequently, at the final adoption hearing, they amended their application. The Suchmans' amended application sought redesignation only of that land within the boundaries of the Application 40 property that the Suchmans owned: the western 20 acres of the Application 40 property north of the railroad tracks (from "agriculture" to "industrial and office" use); and 170 acres of the remaining land (from "agriculture" to "low density residential"). Under the amended application, the
130 acres of the Application 40 property not owned by the Suchmans was to remain designated for "agriculture" use. 14/
In addition to seeking the redesignation of their land, the Suchmans' application, in both its original and amended form, requested that the 1988 UDB be extended to encompass all 320 acres of the Application 40 property.
Application 47
Application 47 was also filed by a private applicant. It was submitted by Alajuela N.V.
The subject of Application 47 was an 160-acre tract of land (Application 47 property) located in Study Area I and MSA 7.2 and bounded by Southwest 264th Street on the north, Southwest 272nd Street on the south, Southwest 157th Avenue on the east and Southwest 162nd Avenue on the west.
This land was located outside, but contiguous to on the south and east, the 1988 UDB.
Immediately to the south and to the east of the Application 47 property is land designated on the FLUM for "estate density residential communities" use (up to 2.5 dwelling units per gross acre).
The land immediately to the north and to the west of the Application
47 property is designated "agriculture" on the FLUM.
Through its application, Alajuela N.V. requested that the land use designation on the FLUM of the Application 47 property be changed from "agriculture" to "estate density residential" 15/ and that the 1988 UDB be extended to encompass this property.
Alajuela N.V. owns the entire western half of the Application 47 property. The eastern 80 acres is divided into a number of parcels, the majority of which are under five acres, with different owners.
The eastern half of the Application 47 property contains 15 acres of Dade County pine forest.
The Application 47 property lies approximately three-quarters of a mile both to the west and north of the U.S. 1 corridor in South Dade, which, according to the LUSC, "[s]ince 1970 . . . [has] experienced particularly heavy development and intensification of land use." This puts it on the southern fringe of an area of South Dade known as the Redlands. While the boundaries of the Redlands are not precise, it is generally understood to range from Southwest 184th Street on the north to the urbanizing areas of the City of Homestead on the south and from U.S. 1 on the east to a meandering line on the west where predominantly mixed agricultural and residential uses end and large-scale agricultural operations generally uninterrupted by residential development begin.
While there is significant agricultural activity in the Redlands, primarily involving grove and nursery operations, 16/ an increasing residential trend has been established, particularly on the urbanizing fringes of the area and on parcels less than five acres in size that, because of the grandfathering provisions of the CDMP, are not subject to the restriction imposed by the CDMP that lands designated for "agriculture" use not be used for residential development in excess of one unit per five acres.
Residential developments lying south of the Application 47 property constitute the urbanizing area of the City of Homestead. Homestead is a CDMP- designated activity center and, according to the LUSC, it was the fastest growing municipality in Dade County during the period from 1970 to 1987. Homestead's northern jurisdictional limits lie approximately two miles south of the Application 47 property. A substantial portion of the land between the Application 47 property and Homestead is presently undeveloped.
The Application 47 property is approximately four and one half miles, by road, from the Homestead Air Force Base, a CDMP-designated employment center. Also in proximity to the Application 47 property are the Homestead/Florida City Enterprise Zone; the Villages of Homestead, which is a 7,000 acre development of regional impact; and commercial and industrial development along the U.S. 1 corridor in South Dade. 17/
The land immediately surrounding the Application 47 property is currently being used primarily for agricultural purposes, however, there is also residential development, as well as vacant land in the area.
The western half of the Application 47 property is presently in active agricultural use.
The eastern half of the Application 47 property is also the site of agricultural activity. Unlike the western half of the property, however, the eastern half is not used exclusively for agricultural purposes. Residences are located in this half of the property.
Other Applications of Note
Application 58, which was filed by the Planning Department, sought an amendment to the text of the land use element which would allow new agricultural uses in utility easements and right-of-way areas inside the UDB.
Application 62 was another application filed by the Planning Department. Through Application 62, the Planning Department sought to have the Board of County Commissioners update and revise the countywide and MSA population estimates and the MSA population projections for the years 2000 and 2010 that had been adopted as part of the CDMP's land use element in 1988.
In Application 62, the Planning Department recommended that the 1985 countywide and MSA population estimates found in the CDMP be replaced by 1989 estimates, including the following: countywide- 1,894,999; MSA 6.1- 92,715; MSA 6.2- 50,841; and MSA 7.2- 33,511.
With respect to the population projections adopted in 1988, the Planning Department requested that they be modified to reflect a different distribution of the projected countywide population. The proposed modifications, as they pertained to MSA 6.1, MSA 6.2 and MSA 7.2, were as follows: year 2000- MSA 6.1: 137,612; MSA 6.2: 89,404; MSA 7.2: 42,012; year 2010- MSA 6.1: 175,504; MSA 6.2: 124,380; MSA 7.2: 53,823. In making these modified projections, the Planning Department utilized the same professionally accepted methodology it had used to make the projections that had been adopted in 1988.
The Planning Department did not propose in Application 62 that any material change be made to the year 2000 or the year 2010 countywide population projections.
A third application filed by the Planning Department was Application
This application sought to have the Board of County Commissioners amend the text of the land use element to provide for the establishment of Traditional Neighborhood Developments (TNDs) by the adoption of land use regulations. Under the proposed amendment, TNDs, designed to provide a mix of employment opportunities, to offer a full range of housing types, and to discourage internal automobile use, among other objectives, would be permitted in areas designated for residential use on the FLUM.
Planning Department's Preliminary Recommendations Report
On August 25, 1989, the Planning Department prepared, for the benefit of the Board of County Commissioners, and published a two-volume report (PR Report) containing its initial recommendations on the 71 applications filed during the Amendment Cycle, as well as the background information and analyses upon which those recommendations were based.
In its PR Report, the Planning Department analyzed, among other things, the amount of land that was needed and available to accommodate anticipated growth. In conducting its analysis, the Planning Department employed essentially the same, professionally accepted methodology, previously described in this Recommended Order, that it had used in 1988. The population estimates and projections upon which it relied were the updated and revised estimates and projections that were the subject of Application 62.
The Planning Department estimated that in 1989 the County's residential capacity was 247,438 total dwelling units (134,333 single-family units and 113,105 multifamily units). Countywide demand was projected to be 9,157 total dwelling units a year from 1989 to 1995, 10,920 total dwelling units a year from 1995 to the year 2000, 11,440 total dwelling units a year from the year 2000 to the year 2005, and 11,601 total dwelling units a year from the year 2005 to the year 2010. Under this scenario, in the year 2010, there would remain a residential capacity of 22,689 total dwelling units. According to the Planning Department's analysis, this remaining countywide residential capacity would be depleted in the year 2012 (depletion year). The Planning Department forecast an earlier depletion year, 2009, for single-family units.
In addition to analyzing countywide residential capacity, the Planning Department conducted an analysis of the amount of land that was available in the County for commercial and industrial development. The Planning Department's analysis revealed that the County had sufficient commercial capacity to last until the year 2008 and that it had sufficient industrial capacity to last until the year 2041.
The Planning Department analyzed residential, commercial and industrial capacity, not only on a countywide basis, but on a subarea basis as well. This subarea analysis yielded the following forecast as to Study Areas G and I and MSAs 6.2 and 7.2:
Study Area G- depletion year for residential land: year 2005 (all dwelling units), year 2006 (single-family units), and year 2005 (multifamily units); depletion year for commercial land: year 2003; and depletion year for industrial land: year 2076.
Study Area I- depletion year for residential land: year 2019 (all dwelling units), year 2016 (single-family units), and year 2030 (multifamily units); depletion year for commercial land: year 2015; and depletion year for industrial land: year 2091.
MSA 6.2- depletion year for residential land: year 2006 (all dwelling units), year 2002 (single-family units), and year 2025 (multifamily units); 18/ depletion year for commercial land: 1995; and depletion year for industrial land: year 2075.
MSA 7.2- depletion year for commercial land:
year 2009; and depletion year for industrial land: year 2078.
In its PR Report, the Planning Department also surveyed the environmental, physical and archaeological/historic conditions in each study area of the County, with particular emphasis on the lands that were the subject of the various applications to amend the FLUM (hereinafter referred to collectively as the "application properties").
The PR Report noted that Study Area G, "a large area (approx. 81 sq. mi.) located along the westerly fringe of southwestern Dade County," was characterized by the following environmental, physical and archaeological/historical conditions:
Study Area G encompasses the western portions of the Snapper Creek (C-2), C-100 and Black Creek (C-1) canal drainage basins. Natural ground elevations range from five to six feet msl in the northwestern portion of the area to ten to fifteen feet in the part of the Study area generally south of SW 120 Street.
Similarly, there is a gradient in the soil conditions from the NW to the SE. In the NW quarter of the area, generally west of 144 Avenue and north of Kendall Drive, the limerock substrate is covered with seasonally flooded Everglades peats and mucks. The southern and eastern three quarters of the study area is generally characterized by well drained rocklands interspersed with poorly drained marls in the former transverse glades. Where organic soils exist, they must be re- moved prior to filling to meet County flood criteria. Therefore as much as four feet of fill may be required to meet the County cri- teria in the northwestern part of this area.
The average groundwater table elevations range from above five feet in the northwest to four feet in the southeast. Therefore, the area
of Bird Drive and much of the area north of Kendall Drive west of SW 137 Avenue has tradi- tionally experienced considerable flooding and drainage problems.
* * * Approximately 70 percent (5,522 acres) of the Bird Drive Basin is vegetated with native wet- land wet prairie, shrub and tree island habi- tats. However, 3,083 acres are heavily or moderately invaded by the exotic tree, Malaleuca. In 1987 the County initiated a Special Area Management Planning (SAMP) pro- cess for this area to develop a wetlands miti- gation plan and funding proposals that will facilitate development in some portions of
the Bird Drive Everglades Basin. The poten- tial presence of a new 140-million gallon per day (mgd) Biscayne Aquifer water wellfield in the western part of the Bird Drive Basin has made the feasibility of on-site wetland miti- gation highly questionable for the Basin area.
Therefore, the County is exploring several off-site mitigation options as part of the SAMP. Proposals to develop in this Basin are presently constrained by language in the
adopted components of the CDMP which tie de- velopment orders to the conclusion of the SAMP, unless the applicants can demonstrate vested rights.
* * * In the portion of the study area south of Kendall Drive, the most significant environ-
mental resources are stands of native pinelands. There are several environmentally sensitive pinelands in Study Area G, however, none of
the properties included in applications 34-4 contain significant natural, historical o archaeological resources. . . .
Table 1G of the PR Report contained the following information regarding the specific environmental, physical and archaeological/historic characteristics of Wellenhofer's property and the Application 40 property:
Wellenhofer's Property: Soils- rockdale/rockland; drainage characteristics of soils- good; elevation: eight feet; drainage basin- C-100; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield
protection area?- no; archaeological/historic resources- none.
The Application 40 Property: Soils- rockdale, marl; depth of organic soils (marl)- one foot; drainage characteristics: good; elevation:
eight feet; drainage basin: Black Creek Canal; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none.
The environmental, physical and archaeological/historic characteristics of Study Area I, "a large (approx. 164 sq. mi.) region of south Dade County," were described as follows in the PR Report:
Study Area I includes portions of CDMP Envi- ronmental Protection Subarea A, Biscayne National Park; Subarea D, the C-111 Wetlands; Subarea E; the Southeast wetlands; and Subarea F, Coastal Wetlands and Hammocks.
These areas have been so designated because they contain important, relatively unstressed high-quality wetlands, which provide important water quality and wildlife values. Study Area I also includes a large part of CDMP Open Land Subarea 5.
In most of the area east of Krome Avenue and west of U.S. 1, natural ground elevations range from ten to fifteen feet msl on the ridge and
from five to ten feet in the former sloughs. The area east of the Turnpike and south of Florida City is less than five feet mean sea level. The highest average groundwater levels are at or above the ground surface throughout most of the area east of the Turnpike Extension and south of Florida City. Saltwater intrusion in the Aquifer extends two to five miles inland in this low lying area.
In the area west of the Turnpike and east of Levees-31N and 31W, the soils are rocklands except in the former sloughs where marls pre- dominate. East of the Turnpike and south of Florida City, marls are the dominant soil
type except along the coast where peats occur.
The Black Creek (C-1), C-102, Mowry (C-103), North Canal, Florida City and C-111 canal sys- tems drain much of the northern and eastern portion of this study area. The area east of the Turnpike has recurring flooding and drainage problems due to its low elevation and flat gradient. The western portions of the
C-102, C-103 and much of the C-111 drainage basins have limited flood protection. There is no flood protection in the area south of the Florida City Canal east of US 1 or in most of the area west of US 1 and south of Ingraham Highway. . . .
* * * This study area also includes most of the
environmentally sensitive natural forest com- munities that remain in Dade County. Appli- cation 47 contains a 15-acre pineland which presently receives maximum protection because it is outside the UDB and zoned AU. At the most, 20 percent of the pineland could be re- moved under the provisions of Chapter 24-60
of the Code of Metropolitan Dade County. . . .
Table 1I of the PR Report contained the following additional information regarding the specific environmental, physical and archaeological/historic characteristics of the Application 47 property:
Soils- rockland; drainage characteristics of soils- good; elevation: eleven to twelve feet; drainage basin- C-103; wetlands permits required- none; native wetland communities- none; endangered species- none; within wellfield protection
area?- no; archaeological/historic resources- none.
The PR Report also provided general information regarding existing land uses within each study area and more detailed information regarding existing land uses within and adjacent to each application property.
The following was said with respect to existing land use patterns within Study Areas G and I:
Study Area G- About half of this study area is suburban in character while the other half is primarily agriculture or undeveloped. The study area also contains a special agricul- tural area known as "horse country" for eques- trian related activities. The urbanizing portion is primarily residential with support- ing commercial and industrial activities.
Residential areas include a range of housing from detached, single dwelling units to attached, multiple dwelling units at medium density. The area also contains two major recreation facilities-- Metrozoo and a county park. The major concentration of commercial activities has occurred along major thoroughfares such as North Kendall Drive.
Some industries and offices are clustered in the vicinity of Tamiami Airport, a major general aviation facility located in the study area.
Study Area I- This study area includes var- ious types of agricultural activities and rural development as well as suburban develop- ment largely oriented to US 1. The suburban development is primarily residential with supporting commercial uses. Although most of the housing is detached, single dwelling units, residential areas also include attached, multiple dwelling units at medium density. There are also several districts for industries and offices, some of which are oriented to expressway and railway systems.
More than half of this study area is used for agriculture or is undeveloped. Much of the area is floodplain and the eastern fringe is subject to coastal flooding. Some of these areas are used for parks, preserves and water management areas. The area also contains several wellfields for public water supply, which are located inland from the coast and a major military installation-- Homestead Air Force Base.
The PR Report stated the following with respect to the existing land uses within and adjacent to Wellenhofer's property, the Application 40 property and the Application 47 property:
Wellenhofer's Property: The area, which con- tains 25 acres, is being used for agricultural purposes.
Land located in the vicinity to the south and west is also being used for agriculture while zoned IU-C. The land on the north side is being developed for residential purposes.
Boys Town home is located immediately to the west.
The site is located one quarter mile north of Tamiami Airport. . . .
The Application 40 Property: The area, which contains 320 acres, is being used for agricul- tural purposes. . . .
Land in the vicinity on all four sides is also being used for agriculture. Tamiami Airport is located to the northeast of this site.
The Application 47 Property: Most of the land in this area is being used for agriculture.
The remainder is being used for rural residences or is vacant. The vacant parcels are zoned for agriculture (AU).
Land in the vicinity on all sides has the same character. It is primarily agriculture with scattered rural residences or vacant parcels. These vacant parcels are also zoned for agri- culture (AU).
The PR Report examined not only existing land use patterns, but future development patterns as well. The future development pattern set forth in the 1988 CDMP for Study Areas G and I were described in the PR Report as follows:
Study Area G- The future land use pattern adopted for this area provides primarily for continued residential uses at low, and
low-medium densities, with industrial and office development bordering the Tamiami airport. Nodes of commercial uses are pro- vided for at certain major intersections cen- trally located to serve the resident popula- tion. The western portions of the Study Area are slated for continued agricultural produc- tion, while the extreme northwest corner of the Area is designated as Open Land to pro- tect the West Wellfield.
Study Area I- The future development pattern established for this area provides for mixed residential infilling (primarily estate, low density and low-medium-density, with some medium-high density located along SW 200 Street east of US 1). Commercial infilling is provided for along both sides of US 1 and along SW 312 Street. Major industrial areas
are established south of SW 312 Street and west of 142 Avenue, west of SW 177 Avenue in the Homestead-Florida City area, north and south of 248 Street west of US 1 and south of SW 184 Street between US 1 and the HEFT [Homestead Extension to the Florida Turnpike]. The areas outside of, but contiguous to, the year 2000 Urban Development Boundary (UDB)
are, for the most part, designated Agriculture, with land to the south and east designated as Open Land graduating to Environmental Protec- tion designations further south. . . .
The PR Report also contained an evaluation of the current and future condition of public services in each study area, including an analysis, where possible, of each application's impact on these services. The public services addressed were roadways, transit, schools, parks, water, sewer, solid waste, and fire and rescue.
The projected impacts of Applications 39, 40 (in its original form) and 47 on roadways were described as follows in the PR Report:
Application 39: [Application 39 will result] in reduced peak hour trips affecting the year 2010 network in this [study] area. None of the roads within the area of this application were projected to operate worse than LOS D in the year 2010.
Application 40: Due to its proximity to SW
177 Avenue, the combined 1422 peak hour trips generated by this amendment primarily impact SW 177 Avenue, which is already projected to operate at LOS F. The long term adopted standard for this road is LOS C. Even without this application the road does not meet this adopted standard.
Application 47: Application 47 . . . if de- veloped would generate approximately 171 residential based peak hour trips in
2010. . . . Generally, this application would have negligible impacts on the LOS traffic conditions in 2010.
The projected impacts of Applications 39, 40 (in its original form) and 47 on transit were described as follows in the PR Report:
Applications 39 and 40: In general, no signi- ficant amount of transit trips would be generated by the amendment applications in this Study Area [G], even though a number of the applications (i.e. . . . 39, 40, )
are located in areas projected to have service improvements by 2010. Therefore, no additional
service improvements are warranted beyond those that will be required to serve the area in general for 2010.
Application 47: [N]o significant amount of transit trips would be generated by Applica- tion . . . 47.
The projected impacts of Applications 39, 40 (in its original form) and 47 on schools were described as follows in the PR Report:
Applications 39 and 40: It is estimated that the applications [in Study Area G] would in- crease the student population by [a total of] 2,784 students. . . . Application 40 would generate 874 additional students; . . . The other applications for residential use [including Application 39] would generate less than a hundred new students each.
Application 47: If Application 47 were ap- proved, it would generate an additional 239 students at all grade levels. The greatest impact would be felt at the elementary school level, where an additional 129 students would have to be accommodated. Redland Elementary, which is the elementary school that would pro- bably serve the subject Application Area, is operating at a utilization rate of 163 percent. Additional classrooms are planned for construc- tion at Redland Elementary over the next few years, raising this school's number of Exist- ing Satisfactory Student Stations (ESSS) from
523 to 901. In addition, a relief school for Redland Elementary is to be built in this area by mid-1993, providing an additional 885 SSS.
The projected impacts of Applications 39, 40 (in its original form) and 47 on parks were described as follows in the PR Report:
Applications 39 and 40: Study Area G cur- rently meets the park level of service stan- dard (LOS) and is expected to meet the LOS in the year 2000. . . Despite the rapid popula- tion growth in the area, the LOS has remained above standard in part because of recreational facilities and open space that are provided in the planned residential developments which characterize the Study Area.
Approval of those applications requesting new residential uses in Study Area G could result in a lowering of the LOS for parks if new park land is not provided.
Application 47: By the year 2000, MSA 7.2 is expected to fall below standard if no addi- tional parks are provided.
* * * Application 47 lies within MSA 7.2 which is currently above the LOS standard but is expected to fall below standard if no addi- tional park land is provided.
The PR Report indicated that the fire and rescue response times to Wellenhofer's property, the Application 40 property and the Application 47 property were four minutes, 13 minutes, and three to four minutes, respectively, and that roadway accessibility to all three sites was good. With respect to the Application 40 property, the PR Report further noted that it "would be serviced by the planned Richmond Station after its completion in 1992-93," which would reduce the response time to the site to no more than six minutes.
Water and sewer service in Study Areas G and I was described as follows in the PR Report:
Study Area G: Water and sewer service is provided to Study Area G by WASAD [Metro- politan Dade County Water and Sewer Authority Department]. The area is characterized by large residential developments which have been built over the past decade. Water and sewer service was constructed by area devel-
opers in many cases, and most of the developed area is served. . . . . [T]he 'Horse Country' area west of the Turnpike is not connected to either water or sewer.
Potable Water Supply
Water is supplied to Study Area G by WASAD's Alexander Orr Water Treatment Facility. This facility's current design rating is 178 MGD, and the historical maximum day water demand has been 146 MGD. . . . The Orr facility currently produces water which meets all federal, state and county drinking water standards. WASAD has recently made improve- ments to the Alexander Orr facility and devel- oped a long term expansion program. By 1990, it is expected that the plant will attain a rated capacity of 220 MGD.
A major improvement to the distribution system in this Study Area is the completion of the 36/48 inch main which extends along SW 137 Avenue from SW 122 Street to SW 184 Street.
In conjunction with other improvements, the system in this area is being connected to the South Miami Heights and the Orr Treatment Plants, providing adequate capacity for the southern portion of Study Area G.
Improvements that are scheduled for 1989-90 include the extension of the 36 inch water main along Kendall Drive to SW 157 Avenue, and continued construction of the 96 inch raw water main that will deliver water from the new West Wellfield to the Alexander Orr Treat- ment Plant.
Sewer
Study Area G is served by the South District Wastewater Treatment and Disposal Facility. This facility has a current design capacity of
75 MGD. Based on a 12-month running average daily flow for this plant was 75 MGD. . . .
Expansions to the South District facility are programmed for completion in 1994 to increase the design capacity to 112.5 MGD. Sewage effluent produced by this plant also conforms to federal, state and county effluent standards and is disposed of via deep well injection.
Study Area I: Most of Study Area I is in agri- cultural use and relies primarily on private wells and septic tanks. WASAD serves the devel- oped areas in unincorporated Dade County.
Florida City provides water service within the city limits and sewer service is provided by WASAD. A portion of the study area is also served by the City of Homestead. Homestead's franchised service area extends a short dis- tance outside the City limits: it is bounded irregularly on the East, on the West by SW 192 Avenue, by the City limits on the South, and on the North by SW 296 Street. Water distri- bution and sewage collection systems are main- tained by the Air Force to serve Homestead Air Force Base.
Potable Water Supply
The northeast corner of the Study Area is con- nected to WASAD's regional water supply system and is served by the Alexander Orr Treatment Plant. . . . [T]he served area south of SW 248 Street is not yet connected to the regional system. This area is served by the former Rex Utility system, which is now owned by WASAD, and by the City of Homestead. The Rex system has a rated capacity of 16.2 mgd and a maximum water demand of 8.81 mgd. The Homestead plant has a rated capacity of 9.9 mgd and a maximum demand of 7.7 mgd. . . . Water produced by these treatment plants meets federal, state, and county drinking water standards.
A major improvement scheduled for this area is a 48 inch main which will run south along SW
127 Avenue from 248 Street to SW 280 Street to connect the existing systems to the Alexander Orr Treatment Plant. Upon completion of this main in 1990 or 1991, the . . . treatment plants of the Rex system will be phased
out. . . .
Sewer
Florida City and the unincorporated portion of Study Area I are served by the South District Wastewater Treatment and Disposal Facility, which has a current design capacity of 75 mgd and an average daily flow of 84.2% of rated capacity. Expansions to the South District facility, programmed for completion in 1994, will increase the design capacity to 112.5 mgd. Sewage effluent treated by this plant conforms to the federal, state and county effluent stan- dards and is disposed of via deep-well injection. . . .
The only remaining sewage treatment plant in
Dade County is operated by the City of Homestead. The plant is designed to treat 2.25 mgd and its capacity is in the process of being evaluated by the Florida Department of Environmental Regula- tion. The Homestead system currently operates under an agreement to divert a portion of its wastewater to WASAD for treatment and
disposal. . . .
The following was indicated in the PR Report concerning the water and sewer service available to Wellenhofer's property, the Application 40 property and the Application 47 Property:
Wellenhofer's property: distance to nearest water main- 1320 feet; diameter of this main- 12 inches; location of this main-
SW 112th Street and SW 142nd Avenue; distance to nearest sewer main- 4000 feet; location of this main- SW 112th Street and SW 137th Avenue.
The Application 40 Property: distance to nearest water main- 0 feet; diameter of this main- 24 inches; location of this main; SW 152nd Street and SW 157th Avenue; distance to nearest sewer main- one mile; location of this main- SW 136th Street and SW 147th Avenue.
The Application 47 Property: distance to near- est water main- 2640 feet; diameter of this main- 12 inches; location of this main- SW
157th Avenue and 280th Street; distance to nearest sewer main- 3960 feet; location of this main- SW 157th Avenue and SW 284th Street. 19/
The significance of the availability of water and sewer service to a particular application property was described as follows in the PR Report:
Although specific requirements under Chapter
24 of the Code of Metropolitan Dade County vary with land use, most new development in Dade County is required to connect to the public water or sewer system, or to both.
The timing of new development is heavily depen- dent on the availability of these services.
Where water and sewer service does not exist and is not planned, the services may be pro- vided by the developer. When construction is completed, the facilities are donated to the utility.
The proximity of an application area to exist- ing or programmed water and sewer lines is an important indicator of whether or not the area is likely to develop within the 2000 time frame of the Urban Development boundary. . . .
The following observations were made in the PR report regarding solid waste services in the County:
The Metro-Dade Department of Solid Waste Management provides both collection and dis- posal services for Dade County. The
Department is responsible for the final dis- posal of solid waste generated anywhere in the County and for residential collection in the urbanized portions of unincorporated Dade
County. Residents in sparsely developed areas of the County are responsible for delivering their waste to a proper disposal site. In general, industrial and commercial businesses often use private haulers who can provide customized service that is not available from the County. . . .
Countywide, the solid waste disposal system has sufficient capacity to maintain the adopted level of service of 7 pounds per person per day through 1995.
The Department's Objections, Recommendations and Comments Report (ORC)
The Board of County Commissioners took preliminary action on the applications filed during the Amendment Cycle and transmitted to the Department its proposed amendment to the CDMP. Accompanying the proposed amendment was the PR Report.
The Department issued its Objections, Recommendations and Comments Report (ORC) on February 2, 1990. A copy of the ORC, accompanied by a cover letter, was sent to the Mayor of Metropolitan Dade County, the Honorable Stephen
P. Clark, that same day. The cover letter advised the Mayor that if he "would like the Department to participate in the public hearing for amendment adoption, such request should be received by the Department, certified mail, at least 14 days prior to the scheduled hearing date."
The following were the statements made in the ORC that referenced Applications 39, 40 and 47:
FUTURE LAND USE ELEMENT
OBJECTIONS
* * * Analysis
1. 9J-5.006(2)(b)
The analysis of the character of the existing vacant or undeveloped land in order to deter- mine its suitability for use does not support the plan amendments that propose to extend the Urban Development Boundary (UDB) by 845 acres. The analysis demonstrates that the UDB as cur- rently delineated ensures an adequate supply of each land use will be available for the planning timeframe. In addition, the existing analysis identifies this region as environmen-
tally sensitive and not suitable for urban uses. Recommendation
Revise the plan amendments to retain the UDB as currently delineated in the adopted
Metro-Dade Comprehensive Development Master Plan (CDMP) or include analysis that would justify extension of the UDB for urban uses while not causing adverse impacts to the environmentally sensitive lands in the East Everglades Area.
2. 9J-5.006(2)(c)2.
The analysis of the amount of land needed to accommodate the projected population, as re- vised in Amendment 62, does not support plan amendments 18, 37, 40, 41 and 47 which propose to extend the UDB by an additional 845 acres. The analysis demonstrates that there is ade- quate amount of land uses designated within the current UDB to accommodate the projected population within the planning timeframe.
Therefore, the extension of the UDB into the East Everglades area would encourage urban sprawl.
Recommendation
Revise the plan amendments to be consistent with the analysis. The plan amendments must justify the proposed need for additional land outside of the current UDB to accommodate the projected population.
3. 9J-5.006(2)(e)
The analysis of the proposed development of flood prone areas does not support plan amend- ments 18, 37, 40, 41 and 47 which would extend the UDB by 845 acres. The new growth would be directed into the flood prone areas on the eastern edge of the Everglades. . . .
Recommendation
Revise the plan amendments to not extend the UDB and to either retain the existing land uses or designate land uses that are compat- ible with the environmentally sensitive nature of . . . the Everglades region.
Goals, Objectives and Policies 4. 9J-5.006(3)(b)1.
Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 1, page I-1, which states that decisions regarding the location of future land use in Dade County will be
based on the physical and financial feasibility for providing services as adopted in the CDMP. The analysis demonstrates that the County has not planned on providing services outside the existing UDB; therefore the extension of the UDB at this time would appear to be premature.
Recommendation
Revise the amendments to retain the UDB as currently delineated in the CDMP.
* * * 8. 9J-5.006(3)(b)7.
Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 3, page I-4, which states that the urban growth shall emphasize concentration around centers of activity rather than sprawl. The analysis of the land needed to accommodate the projected population
demonstrates that there will be an adequate supply of vacant land within the UDB for the duration of the planning timeframe.
Recommendation
Revise the amendments to retain the UDB as currently delineated in the CDMP.
* * * 12. 9J-5.006(3)(c)3.
Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Policy 1B, page I-1, which states that the County will first provide services for the area within the UDB. The amendments are located outside of the existing UDB and the analysis demonstrates that there is no need to extend the UDB for residential or industrial land uses.
Recommendation
Retain the UDB as currently delineated.
* * * Future Land Use Map(s)
14. 9J-5.006(4)(a)
Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are not supported by the data and analysis. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These ex- tensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades.
Recommendation
Retain the Urban Development Boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development
in order to discourage urban sprawl and to pro- tect the environmental integrity of the Ever- glades.
* * *
PORTS, AVIATION AND RELATED FACILITIES
A. OBJECTIONS
* * * Goals, Objectives and Policies
1. 9J-5.009(3)(c)1.
Plan amendments 38 and 39, which would change industrial/office land use to low density resi- dential, are inconsistent with Policy 4C, page IV-4, which supports zoning that would protect existing and proposed aviation flight paths.
These amendments would promote the encroachment of residential land uses into the Tamiami Airport area guaranteeing a future conflict of land uses.
Recommendation
Retain the existing land uses or propose land uses that would be compatible with the existing airport and the surrounding supporting aviation industries.
* * *
SANITARY SEWER, SOLID WASTE, DRAINAGE, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT
A. OBJECTIONS
Goals, Objectives, and Policies 1. 9J-5.011(2)(b)3.
Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are inconsistent with Objective 1 and Policy 1A, page VII-1, which state that the area within the UDB shall have first priority for urban services as a measure to discourage urban sprawl. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning
timeframe. . . . These extensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades.
Recommendation
Retain the Urban Development boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where
the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and protect the environmental integrity of the Everglades.
The ORC also addressed the proposed plan amendment's consistency with the State of Florida Comprehensive Plan (State Plan) and the Regional Plan for South Florida (Regional Plan), which was prepared and adopted by the South Florida Regional Planning Council.
The following was alleged with respect to the proposed amendment's consistency with the State Plan:
STATE COMPREHENSIVE PLAN CONSISTENCY
OBJECTIONS 1. 9J-5.021
The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following sub- sections of s. 187.201, F.S. (1988 Supplement), State Comprehensive Plan policies:
Housing
(5)(b)3., which requires the supply of safe, affordable and sanitary housing for low and moderate income persons and the elderly, because the proposed amendments would change existing residential uses, that would be feasible for affordable housing, to
non-residential uses; and
Water Resources
(8)(b)4., which requires the protection and use of natural water systems in lieu of struc- tural alternatives and restore modified sys- tems, because the proposed amendments would create land uses which would encroach upon wellfield protection areas; and
Coastal and Marine Resources
(9)(b)4., which requires the protection of coastal resources, marine resources, and dune systems from the adverse effects of develop- ment, because of the proposed amendment to change definitions which would give residen- tial densities to submerged marine lands; and
Natural Systems and Recreational Lands (10)(b)7., which requires the County to pro- tect and restore the ecological functions of wetland systems to ensure their long-term environmental, economic and recreational value, because the proposed amendments would
expand the UDB into the East Everglades Area and potentially permit noncompatible land uses within wetland study areas and wellfield pro- tection areas; and
(10)(b)8., which requires promotion of res- toration of the Everglades system and of the hydrological and ecological functions of de- graded or substantially disrupted surface waters, because of the proposed amendment which would expand the UDB into the East Everglades Area; and
Land Use
(16)(b)2., which requires incentives and dis- incentives which encourage a separation of urban and rural land uses, because the pro- posed amendments would expand the UDB into
the East Everglades Area which would encourage urban sprawl; and
Public Facilities
(18)(b)1., which requires incentive for devel- oping land in a way that maximizes the uses of existing public facilities, because the pro- posed amendments would remove residential uses along arterials and reduce the effectiveness of the mass transit system.
The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies:
The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and implementing policies, supported by adequate data and analysis, that are consistent with the above-referenced poli- cies of the State Comprehensive Plan.
The following was alleged in the ORC concerning the proposed amendment's consistency with the Regional Plan:
REGIONAL POLICY PLAN CONSISTENCY
OBJECTIONS 1. 9J-5.021(1)
The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following subsections of the Regional Plan for South Florida:
Policy 57.1.2., which requires giving priority to development in areas within which adequate services are either programmed or available,
because of the proposed amendments which would expand the UDB into the East Everglades Area; and
Policy 64.2.1, which requires that land use around the airport be strictly controlled to prevent unnecessary social or economic con- flicts and costs, because of the proposed amendments which would place residential uses in close proximity to Tamiami Airport; and
Policy 69.1.1., which encourages appropriate activities to ensure the continued viability of agriculture, because the proposed amend- ments which would expand the UDB into the East Everglades Area.
The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies:
The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and policies, supported by adequate data and analysis, that are consis- tent with the policies of the Regional Plan for South Florida.
Under the heading of "Internal Consistency" in the ORC, the following remarks were made:
INTERNAL CONSISTENCY
OBJECTIONS
1. 9J-5.005(5)(b)
Each map depicting future conditions in the plan (including the future land use map) must reflect goals, objectives and policies in each element, as those goals, objectives and policies exist or are modified to meet the requirements of Chapter 9J-5, F.A.C., Chapter 163, F.S., the State Comprehensive Plan (Chapter 187, F.S.) and the comprehensive regional policy plan, as recommended in this report.
Recommendation
Ensure that future conditions maps are modi- fied to reflect goals, objectives and policies in each element.
COMMENTS
See individual elements.
Those objections, recommendations and comments made in the ORC that are not recited above specifically referenced applications other than Applications 39, 40 and 47.
The Planning Department's Response to the ORC
On March 21, 1990, the Planning Department published a written response to the ORC (Response).
In its Response, the Planning Department concurred with the position that Applications 39, 40 and 47 should not be approved, but it took issue with certain statements made in the ORC relating to these applications.
The Planning Department pointed out that the "East Everglades was the area located west of the L-31 Everglades containment levee and south of the Tamiami Trail," and that "[A]pplications [18, 37, 40, 41 and 47 we]re no closer than two miles [to the east] of the East Everglades" and did not extend to any areas designated "environmental protection" on the FLUM.
The Planning Department further noted that the Application 40 property and the Application 47 property were not subject to recurring flooding.
With respect to the lone objection in the ORC which specifically mentioned Application 39, the Planning Department observed that it "incorrectly cite[d] Policy 4C [of the Port and Aviation Facilities Element of the CDMP]; it should be Policy 4D." The Planning Department added that, although the Department had not so indicated, Application 39 was "also inconsistent with Objective 8 of the Port and Aviation Element which seeks to maximize compatibility between airports and the surrounding communities."
Combined Recommendations of the Planning Department and the PAB
On February 27, 1990, and February 28, 1990, respectively, following a joint public hearing held on February 23, 1990, the Planning Department, acting in its capacity as the local planning agency, and the PAB adopted resolutions containing their recommendations to the Board of County Commissioners regarding the final action to be taken on the applications filed during the Amendment Cycle.
Thereafter, prior to the final adoption hearing, the Planning Department published a document entitled "Combined Recommendations of the Metropolitan Dade County Planning Department (Local Planning Agency) and the Planning Advisory Board" (CR Report), which set forth these recommendations, and summarized the rationale upon which they were based.
Both the Planning Department and PAB recommended that Application 39 be denied. According to the CR Report, these recommendations were based upon the following considerations:
The south boundary of this site is located only two blocks from the Kendall-Tamiami Execu- tive Airport. The application area is within the area designated on County comprehensive plans as industrial/commercial since 1965 to insure airport/community compatibility. The continued non-residential designation of this area also conforms to the standard adopted in
1989 by the State Legislature (but vetoed by the Governor because of unrelated funding pro- visions) which provided that "residential construction should not be permitted within an
area contiguous to an airport measuring one-half of the length of the longest runway on either side of each runway centerline."
The Aviation Department estimates that the housing proposed in the application area would be subject to more than ten times ambient noise levels which would result in many complaints from occupants. For example, virtually all of the 5,200 petitioners concerned about perceived airport noise impacts of the recently rejected runway extension lived further from the airport than would the occupants of housing proposed within the area.
Approval of this application would conflict with the need for the County to protect its airport, and with the need to retain opportunity sites for employment activities in west Kendall.
The Planning Department recommended that Application 40 be denied. According to the CR Report, this recommendation was based upon the following considerations:
This Application is located in the Agri- cultural area west of Black Creek Canal. The Agricultural Land Use Plan adopted by the Board of County Commissioners established that
Canal as the Agricultural area boundary in this area of the County, to be amended for urban development only at such time as there is a documented need. The Planning Department believes that the need does not yet exist. 20/
Approval of this Application would be premature. The CDMP currently contains within the year 2000 Urban Development Boundary (UDB), enough land countywide to sustain projected industrial needs well beyond the year 2010,
and residential needs to the year 2015. Within this Study Area there is also enough industrial land to accommodate projected residential growth beyond the year 2010 and to accommodate projected residential growth
until the year 2005. While current projections indicate that the single family supply west of the Turnpike between Kendall Drive and Eureka Drive does not contain much surplus beyond the year 2000, the CDMP provides alternative loca- tions, including an abundance of supply in the Turnpike corridor south of Cutler Ridge. The Planning Department will closely monitor growth
trends in the various subareas of the County and will recommend adjustments when warranted in the future.
The PAB recommended that Application 40 be approved. The CR Report indicated that the PAB's reasoning with respect to this matter was as follows:
Because this is the area where people want to live, sprawl is justified and the urban devel- opment boundary should be expanded. In re- sponse to DCA's objections, the PAB noted that services are available adjacent to this Appli- cation.
Both the Planning Department and PAB recommended the denial of Application 47. The following reasons were given in the CR Report for their recommendations:
The area is currently designated Agricul- ture on the Land Use Plan map, and is used for agricultural purposes. The Agricultural Land Use Plan adopted by the Board of County Commis- sioners recommends that the area designated Agriculture should not be redesignated for urban use until there is a documented need for more urban land. Approval of this Application would be very premature. The CDMP currently contains enough land within the year 2000
Urban Development Boundary in this Study Area to accommodate projected demand well beyond the year 2010. Similarly, in the area west
of US 1 there is enough land for single-family type residences to accommodate projected demand through the year 2010. There is no current need to promote urban development of this Application area.
This site contains fifteen acres of Dade County pine forest listed in Dade County's forest land inventory as having high environ- mental quality. It should not be prematurely urbanized.
The Final Adoption Hearing: The Department's Participation
On March 12, 1990, Mayor Clark mailed, by United States Express Mail, a letter to the Department requesting that it participate in the hearing at which final action would be taken by the Board of County Commissioners on the outstanding applications filed during the Amendment Cycle. The body of the letter read as follows:
The Board of County Commissioners requests that the Florida Department of Community Affairs participate in its hearing to address biennial applications requesting amendments to the 2000-2010 Comprehensive Development Master Plan (CDMP) for Metropolitan Dade
County. This request is made pursuant to Section 9J-11.011(2) of the Florida Adminis- trative Code and Section 2-116.1(4) of the Code of Metropolitan Dade County.
The public hearing will be held on Monday, March 26, 1990, at 9:00 AM in the Commission Chambers, 111 N.W. 1 Street, Miami. If neces-
sary, this hearing will be continued on Tuesday, March 27, 1990, in the Commission Chambers.
The purpose of this hearing is to afford the Board of County Commissioners an opportunity to hear the applicants explain their applica- tions and to receive public comments on the applications, on the "Objections, Recommenda- tions, and Comments" report submitted by the Florida Department of Community Affairs, and on the recommendations of the Planning Advi- sory Board and of the Local Planning Agency. At the conclusion of this hearing, the Board of County Commissioners will take final action to approve, approve with change, or deny each of the applications.
Should you or your staff need any assistance or additional information regarding this hearing, please contact Mr. Robert Usherson, Chief, Metropolitan Planning Division,
Metro-Dade Planning Department, at (305)375-2835, (Suncom) 445-2835.
The Department, by letter, advised Mayor Clark that it would send a Department representative to "participate" in the hearing. The body of the letter read as follows:
In response to your request of March 12, 1990, the Department of Community Affairs will send
a representative to participate in the March 26, 1990, public hearing to adopt the proposed Metro Dade County comprehensive plan amendments.
The Department's representative is authorized to restate our position as expressed in the Department's February 3, 1990 [sic] Objections, Recommendations and Comments Report, and to listen to all parties. It is the Department's position that the adoption public hearing is not the proper forum for modifying the Depart- ment's position or approving proposed revisions to the comprehensive plan. The Department's representative will be without authority to modify the Department's position or approve proposals discussed at the public hearing. The Department's representative will be authorized, however, to comment on proposals to resolve objections included in the report. Final
approval of any proposal may only be granted
by the Secretary of the Department of Community Affairs.
The Department's role with respect to approv- ing proposed revisions will begin upon adop- tion and submittal of the comprehensive plan, pursuant to Chapter 9J-11.011, Florida Admin- istrative Code. If I may be of further assis- tance in this matter, please contact me at (904)488-9210.
The Department representative selected to attend the final adoption hearing was Harry Schmertman, a Planner IV with the Department. Schmertman had not been involved in the preparation of the ORC. He reviewed the report, however, before attending the hearing.
Schmertman arrived at the Commission Chambers on the morning of March 26, 1990, prior to the commencement of the hearing. Upon his arrival, he spoke with the County's Planning Director and requested that he be recognized at the outset of the hearing. The Planning Director responded that "the Mayor would take care of that."
Following this conversation, Schmertman took a seat "[a]pproximately five or six rows back [from the front] in the center of the auditorium." Thereafter, the hearing formally convened.
Shortly after the commencement of the hearing, before any applications were discussed, Mayor Clark introduced Schmertman and indicated that he was attending the hearing on behalf of the Department.
Immediately following the Mayor's introduction of Schmertman, the Chairman of the PAB, Lester Goldstein, presented the PAB's recommendations to the Board. During his presentation, Goldstein expressed disappointment over the various factual inaccuracies in the Department's ORC.
Schmertman did not respond to Goldstein's comments, nor did he at any time attempt to modify or explain any statement or position taken by the Department in the ORC. Indeed, he made no public remarks while in attendance at the hearing.
While Schmertman did not address the Board of County Commissioners at the hearing, at no time during the hearing was he asked to do so. Furthermore, the members of the Board gave no indication that they did not understand, and therefore needed clarification of, the Department's position on the applications under consideration.
At around 4:30 p.m., before the conclusion of the hearing on that day, Schmertman left the Commission Chambers to return to Tallahassee. Neither he, nor any other Department representative, was present for the remainder of the hearing on that day or for the continuation of the hearing on the following day, when public discussion and debate ended and a formal vote was taken on each of the pending applications. 21/
Schmertman did not tell anyone that he was leaving the Commission Chambers. He reasonably believed, however, that there was no need to announce his departure because he was "in a very obvious location . . . and was very
visible leaving." No member of the Board, nor any other County representative, asked Schmertman, as he was leaving, to remain until the conclusion of the hearing.
The Final Adoption Hearing: The Objectors' Participation
The Redland Citizen Association, Inc. (RCA) is a nonprofit Florida corporation, which has as its stated purpose and primary activity the preservation and promotion of the agrarian character and lifestyle of the Redlands area of South Dade. The RCA engages in fundraising to obtain the financial resources necessary to accomplish this objective.
The RCA has approximately 700 to 800 members, all of whom reside in or around the Redlands in Dade County.
At all times material hereto, Martin Motes has been a member of the RCA, resided in a home that he owns in the Redlands, and owned and operated a wholesale orchid nursery business located on property adjacent to his residence, three quarters of a mile north of the Application 47 property.
Motes appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the RCA and its members, including himself, he expressed opposition to Application 47. He argued that the change sought through this application was "premature" and constituted an "unwarranted and unwanted" extension of urban development into a viable agricultural area.
Neither Motes, nor any other representative of the RCA, objected to any application other than Application 47. 22/
The Sierra Club is a nonprofit national organization organized for the following purpose:
To explore, enjoy and protect the wild places of the earth, to practice and promote the re- sponsible use of the earth's ecosystems and resources, to educate and enlist humanity to protect and restore the quality of the natural and human environment, and to use all lawful means to carry out these objectives.
The Sierra Club, Miami Group, is a local division of the national organization specifically chartered to include residents of both Dade and Monroe Counties. It has a Dade County address.
At all times material hereto Bruce Rohde has been a member of the Sierra Club and resided in a home that he owns in Dade County.
Rohde appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the Sierra Club and its members, including himself, he expressed opposition to Applications 40 and 47, among others. He contended that the extensions of the UDB requested through Applications 40 and
47 were "premature." Neither Rohde, nor any other representative of the Sierra Club, objected to Application 39.
The League of Women Voters of the United States is a national organization.
The League of Women Voters of Florida is a state organization.
The League of Women Voters of Dade County, Inc. (League) is a nonprofit Florida corporation affiliated with the national and state organizations. The League's purpose, as stated in its Articles of Incorporation, is as follows:
[T]o promote political responsibility through informed and active participation of citizens in government and to take action on govern- mental measures and policies in the public interest in conformity with the principles of The League of Women Voters of the United States and The League of Women Voters of Florida.
It engages in fundraising to obtain the financial resources necessary to accomplish this objective.
The League rents office space in Dade County out of which it conducts its operations. 23/
At all times material hereto, Carol Rist has been a member of the League, resided in a home that she owns in Dade County, and owned and operated a Dade County business.
Rist appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the League and its members, including herself, she expressed opposition to various applications, including Applications 39, 40 and 47. With respect to Applications 40 and 47, her arguments were similar to those advanced by Rohde at the hearing. As to Application 39, she contended that Wellenhofer's property was too close to the airport to be used for residential purposes and that it was a desirable site for the location of an office complex to which residents of the West Kendall area would be able to commute. 24/
At all times material hereto, Evelyn B. Sutton has resided in a home that she owns in the eastern half of the Application 47 property.
Sutton appeared before the Board of County Commissioners at the final adoption hearing. She expressed her opposition to Application 47, contending that its approval would have an adverse impact upon the unique agrarian character and lifestyle of the Redlands. She did not object to any application other than Application 47.
At all times material hereto, Frances L. Mitchell has resided in a home that she owns in the eastern half of the Application 47 property.
Mitchell and some of her neighbors retained an attorney, who appeared before the Board of County Commissioners at the final adoption hearing and made a presentation on their behalf. The attorney advised the Board that his clients were in opposition to Application 47 because it was "premature" and represented unneeded "leapfrog residential development in the heart of the Redlands." Neither Mitchell, her attorney, nor any other representative acting on her behalf, objected to any application other than Application 47.
At all times material hereto, Rod Jude has resided in a home that he owns in Dade County and owned and operated a Dade County wholesale nursery business.
Jude appeared before the Board of County Commissioners at the final adoption hearing. He expressed his opposition to Application 40, arguing that there was no demonstrated need for the conversion of the Application 40 property to non-agricultural uses. Jude also objected to Applications 37, 41 and 42. He did not address either Application 39 or Application 47.
The Final Adoption Hearing: The Applicants' Participation
Jeffrey E. Lehrman, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 39 on behalf of Wellenhofer. In addition to making an oral presentation, Lehrman gave the members of the Board written materials.
During his presentation, Lehrman stated, among other things, the following: Application 39 represented infill, not leapfrog, development; such development would not adversely impact upon, nor would it be adversely impacted by, the Tamiami Airport; there had been significant residential development in the area around Wellenhofer's property in recent years; the approval of Application 39 would not interfere with any existing flight patterns; Wellenhofer's property was not under an existing flight path, but rather was in a "hole-in-the-doughnut" and therefore was distinguishable from properties that were the subject of other applications; Tamiami's north runway was an auxiliary runway unequipped to handle operations at night and in bad weather; the applicable 65/75 LDN noise contour did not intrude upon Wellenhofer's property; the new statute that the Planning Department had referenced in recommending denial of Application 39 had been vetoed by the Governor and therefore was really no statute at all; helicopter training took place on the south, rather than the north, side of the airport; and if Application 39 was approved, a buffer of industrial land would still exist between Wellenhofer's property and the airport.
Thomas Carlos, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 40 on behalf of the Suchmans. Carlos was assisted by James Holland, a professional planner with the firm of Post, Buckley, Shuh and Jernigan (Post Buckley), Jack Schnettler, a professional traffic engineer with Post Buckley, Richard Tobin, President of Strategy Research Corporation, Inc. (SRC), a national research firm with offices in Florida, and Richard Roth, Vice- President of SRC in charge of planning research studies.
During his opening remarks, Carlos advised the County Commission that the Suchmans had executed a covenant obligating themselves to developing their property in accordance with the Traditional Neighborhood Development concept.
He then introduced Holland to the Commission.
During his presentation, Holland did, among other things, the following: summarized the contents of Table 1G of the PR Report relating to the environmental, physical and archaeological/historic conditions that existed on the Application 40 property; contrasted the Application 40 property with the undeveloped lands in MSA 6.1 already within the UDB which, he argued, had marginal development potential because of undesirable environmental constraints; opined that, as a consequence of these impediments to development in MSA 6.1, MSA 6.2 would experience an increase in demand; showed a graphic depicting land
use patterns in and around the Application 40 property, including the amount of land available for residential development in the area; displayed another graphic showing future Urban Services Areas in unincorporated Dade County, including the Tamiami area; in conjunction with the these graphics, argued that the residential development of the Application 40 property was in furtherance of the Tamiami area's designation as an employment center; quoted from a Planning Department report that suggested that development around the Tamiami Airport would reduce metropolitan transportation needs; asserted that the use of the Application 40 property for residential purposes would comply with federal guidelines as well as those found in the CDMP; in support of this assertion, presented a graphic illustrating that no part of the proposed residential portion of the Application 40 property would be included in the 65/75 LDN contours which measure the noise generated by airport operations; and described the urban services which were available or programmed to serve the Application
40 property.
Jack Schnettler's presentation addressed traffic and transit issues. He presented a graphic showing the existing and programmed transportation network in the vicinity of the Application 40 property and highlighted particular improvement projects that he considered worthy of note. In describing the this transportation network, he commented that it augmented the employment center character of the area. Schnettler expressed the view that the property would be adequately served by transit and roadways. In addition, he disagreed with the Planning Department's forecast that approval of Application
40 would adversely impact upon the level of service on Southwest 177th Avenue, which, he noted, was located one and half miles to the west of the application property.
Tobin and Roth briefly summarized a written report that SRC had prepared for the Suchmans and other private applicants (SRC Report). The report analyzed housing demand in the West Kendall area.
The SRC Report concluded that the supply of residential land in MSA
6.2 25/ would be depleted in the year 2004 under a low case scenario, in 1998 under a medium case scenario, and in 1996 under a high case scenario, which the report opined, without explanation or reasonable justification, was "the one most likely to occur." As noted above, in its PR Report, the Planning Department had projected a depletion year of 2006, which the SRC Report criticized as being "out of touch with reality."
In making its projections, SRC compared the yearly average of new housing units built and sold in MSA 6.2 from 1980 to 1984, which was a down period for the housing industry in Dade County, to the yearly average of new housing units build and sold in MSA 6.2 from 1985 to 1988, which was a boom period for the housing industry in the County. The information used by SRC regarding the number of housing units constructed and sold during these years was obtained from the Dade County Tax Assessor's office.
Under the low case scenario, SRC assumed that housing demand in MSA
6.2 would remain constant at its 1985 to 1988 yearly average of 1,780 units.
Under the medium case scenario, SRC assumed that the rate of housing demand would increase by about 35% over the 1985 to 1988 experience (which was 70% above the 1980 to 1984 experience).
Under the high case scenario, SRC assumed that the 70% increase in housing demand between 1980 to 1984 and 1985 to 1988 would continue unabated until the supply of residential land was depleted, an assumption that is even more unrealistic than the assumptions underlying low and medium case scenarios.
SRC reached these conclusions without analyzing housing demand on a countywide basis. Neither did it rely upon any population projections, notwithstanding that housing demand is driven by population growth. Furthermore, it did not take into consideration the cyclical fluctuations that characterize the housing market, nor did it account for vacant units in its projections.
A professionally accepted methodology is one that is replicable, transparent, documented, free of error and inaccuracies, based upon assumptions that are clearly stated and reasonable and designed to avoid improbable and unlikely outcomes given past trends. In projecting housing demand for MSA 6.2., SRC did not utilize a methodology meeting these requirements.
In addition to the oral presentations made by Carlos, Holland, Schnettler, Tobin and Roth, the Suchmans also presented to the Board of County Commissioners a written memorandum authored by Carlos and David S. Goldwich, Esquire, with attachments, including a copy of the SRC Report, copies of excerpts from Planning Department publications, and a copy of a recent article appearing in "New Miami Magazine," which reported that "Dade farmers, mostly by shifting production to new areas to the west actually increased total acres under tillage from 78,263 in 1981 to 84,534 in 1987" and that "Dade agricultural acreage [was] not expected to shrink substantially, despite encroachments by developers." The memorandum made many of the same arguments that were advanced by those who spoke on behalf of the Suchmans at the final adoption hearing.
Robert Traurig, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 47 on behalf of Alajuela N.V. During his presentation, Traurig stated, among other things, the following: the Application 47 property was contiguous to the 1988 UDB; the failure to include the property within the UDB was an oversight that should be corrected; there was significant residential development surrounding the property in all directions; the area in which the property is located was an area in transition; it was changing from an agricultural area to one that was predominantly residential in character; as demonstrated by the recent development in the area, there was a demand for housing in this part of the County; most of the people who wanted to live in this area could not afford the five-acre estates allowed on property designated for "agricultural" use under the CDMP; the redesignation of the Application 47 property sought by Alajuela N.V. would not have an adverse impact on the agricultural industry in the County; such redesignation was not premature nor would it result in leapfrog development; there were no environmental impediments to the development of the Application 47 property; the elevation of the property was 11 feet above sea level and drainage was good; there were no wetlands on the site; the tree colony on the eastern half of the property would be protected by County ordinance; and there were roadways, parks, fire service and other urban services available to serve the property.
The Final Adoption Hearing: The Aviation Director's Comments
At the request of Commissioner Hawkins, Rick Elder, the County's Aviation Director, commented on four application properties in Study Area G that were in close proximity to the Tamiami Airport, including Wellenhofer's property.
Elder stated that there were no flight patterns over Wellenhofer's property.
With respect to noise, he noted that Wellenhofer's property was not within the 65/75 LDN contour.
Elder did not indicate that he had any safety concerns regarding Application 39.
The Final Adoption Hearing: Debate and Vote by the Board
Following the conclusion of that portion of the final adoption hearing devoted to public discussion and debate on March 27, 1990, the Board of County Commissioners considered and voted on each of the pending applications.
At the request of Commissioner Hawkins, the first application to be considered and voted on by the Board was the TND application, Application 71. The Board voted to approve Application 71.
The remaining applications were considered and voted on in sequential order.
During the Commissioners' debate on Application 39 and other applications in the vicinity of Tamiami Airport, Commissioner Gersten expressed the view that, with respect to these applications, neither noise nor safety should be a concern. Commissioner Schreiber concurred. Commissioner Valdes remarked that, although he was opposed to the other applications under consideration, he was not opposed to Application 39 because the property that was the subject of the application was not, according to Aviation Director Elder, under a flight pattern. Commissioner Dusseau indicated his opposition to Application 39. He argued that there was no need for residential development on Wellenhofer's property and that it was preferable to retain its "industrial and office" land use designation to further the creation of an activity center around the airport.
Application 39 was approved by a five to three vote.
When Application 40 came up for consideration, Commissioner Hawkins recommended that the application be modified. While he did not object to the extension of the UDB to include the Application 40 property, he suggested that only the application property owned by the Suchmans be redesignated for residential use. He explained that, not only would this modification eliminate concerns generated by the application regarding compatibility with airport operations, it would set the stage for the development of a TND in the West Kendall area. Commissioner Hawkins noted that the County Commission had long wanted to have a TND in this area and that the Suchmans were willing to develop their property as a TND if it was redesignated for residential use. Commissioner Dusseau responded to these comments by indicating that he favored the TND concept, but that he did not believe that the Suchmans property was where such a TND should be located.
Application 40, as modified pursuant to Commissioner Hawkins' recommendation, initially failed to win approval on a tie vote.
On the motion of Commissioner Winn, Application 40, as so modified, was reconsidered. On reconsideration, it was approved by a six to two vote.
Application 47 was also approved by a six to two vote.
Application 58, which proposed to allow new commercial agricultural uses within the UDB, and Application 62, with its revised population estimates and projections, were among the other applications that were approved by the Board of County Commissioners at the final adoption hearing.
Of the applications seeking an extension of the UDB, only Applications 40 and 47 were approved.
A total of 49 applications, either in their original form or as modified, were approved by the Board. The majority of these applications, like Applications 39, 40 and 47, sought to change one or more land use designations on the FLUM.
Other approved applications, in addition to Applications 39, 40 and 47, that sought to have the Board of County Commissioners change a non- residential land use to a residential land use were Applications 12, 13, 14, 26, 28 and 44. 26/
Approximately 410 acres of land were redesignated on the FLUM from non-residential to residential land uses as a result of the approval of Applications 12, 13, 14, 26, 28, 39, 40, 44 and 47. Assuming that the properties that were the subject of these applications will be able to develop at the maximum residential densities indicated on the FLUM, these redesignations will have increased the supply of residential land in the County by approximately 1930 dwelling units.
208. The approval of Applications 1, 2, 3, 4, 9, 11, 14, 23, 27, 29, 45 and 46 resulted in the redesignation on the FLUM of approximately 115 acres of land from residential to non-residential land uses. Assuming that the properties that were the subject of these applications would have been able to develop at the maximum residential densities indicated on the FLUM, these redesignations may be said to have reduced the supply of residential land in the County by approximately 910 dwelling units.
Applications 5, 6, 19, 22 and 24 sought to have land designated on the FLUM for "low density residential" use redesignated for "office/residential" use. Applications 8, 15 and 16 sought to have land designated on the FLUM "medium density residential" redesignated "office/residential." These eight applications were all approved. Approximately 105 acres of land were redesignated "office/residential" as a result of the approval of these eight applications. Assuming that the properties that were the subject of these applications would have been able to develop at their maximum pre-approval residential densities, as indicated on the FLUM, and further assuming that, after these redesignations, they will be developed as office sites exclusively, these redesignations may be said to have reduced the supply of residential land in the County by approximately 1960 dwelling units. If the assumption were made that these redesignated properties will experience both office and residential development 27/ and that the residential development will amount to one half the number of dwelling units that would have been constructed had the property
not been redesignated, the reduction in the supply of residential land resulting from these redesignations instead would be 980 dwelling units. It is unlikely, however, that as many as 980 dwelling units will be built on these properties.
There were other applications, in addition to those specifically mentioned above, that sought FLUM redesignations and were approved by the Board of County Commissioners, however, they involved a change from one non- residential land use to another non-residential land use and therefore did not have a direct impact on the supply of residential land in the County.
When viewed collectively, the changes made by the Board of County Commissioners to the FLUM during the Amendment Cycle have not been shown to have resulted in any appreciable increase in the supply of residential land in the County as a whole.
That is not to say, however, that the Board's actions did not serve to increase the supply of residential land in certain areas of the County. For instance, by virtue of its approval of Applications 40 and 47, the Board added to the supply of residential land on the urban fringe in Study Area G and Study Area I, respectively.
Following its vote on each of the pending applications, the Board adopted Ordinance No. 90-28, which amended the CDMP in a manner consistent with Board's actions on these applications. (The CDMP, as so amended, will be referred to as the "1990 CDMP." Ordinance No. 90-28 will be referred to as the 1990 Plan Amendment.)
The CDMP, as Amended by Ordinance No. 90-28: Key Provisions Statement of Legislative Intent
The 1990 CDMP contains a Statement of Legislative Intent. It provides as follows:
This Statement expresses the legislative in- tent of the Board of County Commissioners with regard to the Comprehensive Development Master Plan (CDMP). This statement is applicable to the CDMP in its entirety and is declared to be incorporated by reference into each element thereof.
Nothing in the CDMP shall be construed or applied to constitute a temporary or permanent taking of private property or the abrogation of vested rights as determined to exist by the Code of Metropolitan Dade County, Florida.
The CDMP shall not be construed to preempt considerations of fundamental fairness that may arise from a strict application of the Plan. Accordingly, the Plan shall not be deemed to require any particular action where the Plan
is incomplete or internally inconsistent, or that would constitute a taking of private property without due process or fair compensa- tion, or would deny equal protection of the laws.
The CDMP is intended to set general guide- lines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations.
The CDMP contains long-range policies for Dade County. Numerous policies contained in the CDMP must be implemented through the County's land development regulations. Neces- sary revisions will be made to the County's land development regulations by the date required by Section 163.3202, FS. Other policies of the plan propose the establishment of new administrative programs, the modifica- tion of existing programs, or other administra- tive actions. It is the intent of Dade County that these actions and programs be initiated by the date that Dade County adopts its next Evaluation and Appraisal (EAR) report, unless another date is specifically established in
the Plan.
The CDMP is not intended to preempt the processes whereby applications may be filed for relief from land development regulations. Rather, it is the intent of the Board of County Commissioners that such applications be filed, considered and finally determined, and that administrative remedies exhausted, where a strict application of the CDMP would
contravene the legislative intent as expressed herein.
The Board recognizes that a particular application may bring into conflict, and neces- sitate a choice between, different goals, prior- ities, objectives, and provisions of the CDMP. While it is the intent of the Board that the land use element be afforded a high priority, other elements must be taken into consideration in light of the Board's responsibility to pro- vide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting
of public facilities.
Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the
CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare.
The term "shall" as used in the CDMP shall be construed as mandatory, subject, however, to this Statement of Legislative Intent. The term "should" shall be construed as directory.
The FLUM
The FLUM is an integral part of the 1990 CDMP's future land use element. It shows the proposed distribution, extent and location of permitted land uses for the entire land area of Dade County and, in so doing, reflects the CDMP's goals, policies and objectives, to the extent possible. In addition to a year 2000 UDB, the FLUM also has a year 2010 Urban Expansion Area Boundary.
There are 18 land use categories represented on the FLUM: estate density residential communities; low density residential communities; low-medium density residential communities; medium density residential communities;
medium-high density residential communities; high density residential communities; industrial and office; restricted industrial and office; business and office; office/residential; institutional and public facility; parks and recreation; agriculture; open lands; environmental protection; environmentally protected parks; transportation; and terminals.
The FLUM also depicts activity centers, expressways, major and minor roadways, levees, canals and other bodies of water.
The following advisement is set forth on the face of the FLUM:
This plan map is not a zoning map! Within each map category on this plan map, numerous land uses, zoning districts and housing types may occur. This plan map may be interpreted only as provided in the plan text entitled "Inter- pretation of the Land Use Plan Map: Policy of the Land Use Element." That text provides necessary definitions and standards for allow- able land uses, densities or intensities of use for each map category and for interpretation and application of the plan as a whole. That text must be interpreted in its entirety in interpreting any one plan map category, and no provision shall be used in isolation from the remainder.
The land use plan map (LUP), in conjunction with all other adopted components of the Com- prehensive Development Master Plan (CDMP), will govern all development-related actions taken or authorized by Metropolitan Dade County. The LUP Map reflects municipal land use policies adopted in municipal comprehen- sive plans. However, this plan does not supersede local land use authority of incor- porated municipal governments currently auth- orized in accordance with the Metro-Dade Charter. For further guidance on future land
uses authorized within incorporated municipal- ities, consult the local comprehensive plan adopted by the pertinent municipality.
The Interpretative Text
That portion of the 1990 CDMP entitled "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" (Interpretive Text) provides in pertinent part as follows with respect to the residential land use categories shown on the FLUM:
Residential Communities
The areas designated Residential Communities on the LUP map permit housing types ranging from detached single-family to attached multi- family structures including manufactured housing and mobile home parks. The residen- tial communities designations indicate the overall residential density for the area.
Also permitted in residential communities, in keeping with the Plan's objectives and poli- cies, are secondary neighborhood and community serving uses such as schools, parks, and houses of worship. Some additional uses such as day care centers, foster care and group housing facilities and similar uses, and neighborhood serving institutional and utility uses may also be permitted in residential com- munities in keeping with the circumstances and conditions outlined in this section, and with the objectives and policies of this plan.
* * *
The Land Use Plan Map includes six residential density categories which are depicted on the Plan map by different symbols/colors. Each category is defined in terms of its maximum allowable gross residential density. Develop- ment at lower than maximum density is allowed and may be required where conditions warrant. For example, in instances where a large portion of the "gross residential acreage" is not a part of the "net" residential building area, the necessity to limit the height and scale of the buildings to that compatible with the sur- rounding area may limit the gross density. The categories do not have a bottom limit or min- imum required density; all categories include the full range of density from one dwelling unit per five acres up to the stated maximum for the category. . . .
Estate Density. This density range is typi- cally characterized by detached estates which utilize only a small portion of the total par- cel. Clustering, and a variety of housing
types may, however, be authorized. The maxi- mum density allowed in this category is 2.5 dwelling units per gross acre.
Low Density. A larger number of units is allowed in this category than in the Estate density. The maximum density allowed is 6 dwelling units per gross acre. This density category is generally characterized by single family type housing, e.g., single family detached, cluster, zero lot line, and town- houses. It could possibly include low-rise apartments with extensive surrounding open space providing that the maximum gross den- sity is not exceeded.
Low-Medium Density. This category allows up to 13 dwelling units per gross acre. The types of housing typically found in areas designated low-medium density include single family homes, townhomes, and low-rise apart- ments.
Medium Density. This Density Category allows up to 25 dwelling units per gross acre. The type of housing structures typically permitted in this category include townhouses, low-rise and medium rise apartments.
Medium-High Density. This category accommo- dates apartment buildings ranging up to 60 dwelling units per gross acre. In this cate- gory, the height of buildings, and therefore, the attainment of densities approaching the maximum, depends to a great extent on the dimensions of the site, conditions such as location and availability of services, ability to provide sufficient off-street parking, and the compatibility with, and impact of the development on surrounding areas.
High Density. This category permits up to
125 dwelling units per gross acre. This den- sity is only found in a few areas located within certain municipalities where land costs are very high and where services will be able to meet the demands.
* * * Traditional Neighborhood Developments (TNDs). Traditional neighborhood developments which incorporate a broad mixture of uses under specific design standards may also be ap- proved in Residential Communities in the manner specifically authorized in this sub- section. The purpose of the traditional neighborhood development is to enable the creation of new communities that offer social
and architectural quality, characteristic of early American town planning. Many of these early models, developed prior to 1940, offer insight into the design of coherently planned communities. The concept is patterned after those inherent in these earlier developments and provides a design clarity through a hierarchy of streets, a focus towards pedes- trian activity, low scale community buildings and open squares as the focal point of the neighborhood. The County shall adopt land use regulations that incorporate the objectives of a traditional neighborhood development concept. . . 28/
Within areas designated on the LUP map as Res- idential Communities, a mixed use Traditional Neighborhood Development permitting business, office, industrial, artisanal, home occupa- tions, and other uses authorized by this subsection may be approved providing that the following criteria are met:
The minimum contiguous land area is 40 acres and is not located within the Estate density category; and
The site is under single-ownership at the time the master development plan or equivalent is approved; and
Residential density does not exceed the density depicted on the Land Use Plan Map, except that a maximum density of ten dwelling units per acre may be approved in the Low Density category; and
Public open spaces such as squares or parks comprise a minimum of five acres or five percent of the developed area, whichever is greater; and
Civic uses, such as meeting halls, schools, day care centers and cultural facilities com- prise a minimum of two percent of the developed area; and
Business, office and industrial uses, that are separate from residential mixed uses do not exceed seven percent of the gross land area; and
Where the TND borders or is adjacent to land that is designated Estate, Low Density or Low-Medium Residential and land so designated is used for residences or is vacant, the sep- arate business, office, and industrial uses identified in item No. 6 above, and those
business, office, and industrial uses mixed with other uses shall not be permitted within
175 feet of the TND boundary and all
non-residential components of such uses shall be acoustically and visually screened from said bordering or adjacent land; and when a TND borders land designated Agriculture or Open Land said business, office or industrial uses shall not be permitted within 330 feet of said TND boundary; and
Residential, and residential uses mixed with shop-front, artisanal and home occupation uses comprise the remainder of the developed area; and
In calculating gross residential density uses listed in item No. 6 shall be excluded, all other uses may be used to determine the maximum permitted density.
The Interpretive Text provides that, with respect to the "office/residential" land use category, "[u]ses allowed in this category include both professional and clerical offices and residential uses."
The following is stated in the Interpretative Text in pertinent part with respect to the "agriculture" land use category:
Agriculture
The area designated as "Agriculture" contains the best agricultural land remaining in Dade County. 29/ The principal uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture such as packing houses on compatible sites, and farm residences. Uses ancillary to, and necessary to support the rural residential community of the agricultural area may also be approved, including houses of worship and local schools.
In order to protect the agricultural industry it is important that uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed in this area. Residential development
that occurs in this area is allowed at a density of no more than one unit per five acres. 30/ Creation of new parcels smaller than five acres for residential use may be approved in the Agriculture area only if the immediate area surrounding the subject parcel on three or
more sides is predominantly parcelized in a similar manner, and if a division of the sub- ject land would not precipitate additional land division in the area. No business or industrial use should be approved in the area
designated Agriculture unless the use is directly supportive of local agricultural production, is located on an existing arterial roadway, and has adequate water supply and sewage disposal in accordance with Chapter 24 of the County Code, and the development order specifies the approved use(s). Other uses compatible with agriculture and with the rural residential character may be approved in the Agriculture area only if deemed to be a public necessity, or if deemed to be in the public
interest and no suitable site for the use exists outside the Agriculture area. Existing quar- rying and ancillary uses in the Agriculture
area may continue operation and be considered for approval of expansion.
Also included in the Agriculture area are enclaves of estate density residential use approved and grandfathered by zoning, owner- ship patterns and platting activities which predate this Plan. The grandfather provisions of Sections 33-196, 33-280, and 33-280.1 of the Dade County Code shall continue to apply
to this area except that lots smaller than 15,000 square feet in area are not grandfathered hereby. Moreover, all existing lawful uses and existing zoning are deemed to be consistent with this
Plan unless such a use or zoning: (a) is found through a subsequent planning study, as provided in Land Use Policy 5D, to be inconsistent with the foregoing grandfather provisions or with
the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as deter- mined by the Code of Metropolitan Dade County, Florida. . . . Also deemed to be consistent with this Plan are uses and zoning districts which have been approved by a final judicial decree which has declared this Plan to be invalid or unconstitutional as applied to a specific piece of property. This paragraph does not, however, authorize the approval or expansion of any use inconsistent with this
plan. To the contrary it is the intent of this Plan to contain and prevent the expansion of inconsistent development in the Agriculture area.
Activity centers are described in the Interpretative Text as "high- intensity design unified areas which will contain a concentration of different urban functions integrated both horizontally and vertically."
The Interpretative Text contains the following discussion regarding the UDB:
Urban Development Boundary
The Urban Development Boundary (UDB) is in- cluded on the LUP map to distinguish the area where urban development may occur through the year 2000 from the areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2000 provided that level-of-service standards for necessary public facilities will be met.
Adequate countywide development capacity will be maintained within the UDB by expanding the UDB when the need for such expansion is deter- mined to be necessary through the Plan review and amendment process.
The CDMP seeks to facilitate the necessary service improvements within the UDB to accom- modate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infra- structure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be per- mitted only if such roadways are shown on the
LUP map and in the Traffic Circulation Element.
The entire unincorporated area within the UDB is eligible to receive and utilize Severable Use Rights (SURs) in accordance with provi- sions of chapter 33-B, Code of Metropolitan Dade County. Accordingly, certain developments as specified in Chapter 33-B may be entitled
to density or floor area bonuses as authorized by Chapter 33-B.
No new commercial agricultural use of property may be established within the Urban Development Boundary, except on property designated Agri- culture on the LUP map or zoned AU (agricultural) or GU (interim). 31/ All property within the Urban Development Boundary not designated Agri- culture or zoned AU or GU shall not be permit- ted to be used for the establishment of any
new commercial agricultural use. An additional exception is that land in utility easements or rights-of-way may be approved for new commercial agricultural uses where the use would be compat- ible with, and would have no unfavorable effect
on, the surrounding area. Commercial agricultural uses include, without limitation, all uses of property associated with commercial horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; apiculture; pisciculture, when the property is used principally for the production of tropical fish; all forms of farm production; and all other such uses, except retail nurseries and retail greenhouses. Inci- dental agricultural use of property specifi-
cally authorized by zoning which is otherwise consistent with the LUP map does not constitute commercial agriculture within the meaning of this provision.
The Urban Expansion Area is described as follows in the Interpretative Text:
The Land Use Map also contains a year 2010 Urban Expansion Area (UEA) Boundary. The UEA is comprised of that area located between the 2000 UDB and the 2010 UEA Boundary. The Urban Expansion Area is the area where cur- rent projections indicate that further urban development beyond the 2000 UDB is likely to be warranted some time between the year 2000 and 2010. Until these areas are brought within the year 2000 UDB through the Plan
review and amendment process, they are allowed to be used in a manner consistent with the provisions set forth for lands designated as "Agriculture" or the applicable "Open Land" area. Urban infrastructure and services should be planned for eventual extension into the UEA, sometime between the years 2000 and 2010. However, if water or sewer lines or major roadway improvements are extended beyond the UEA in order to serve a necessary public facility that has been approved consistent
with the Comprehensive Development Master Plan, these improvements should be sized or restric- ted to accommodate only the needs of the public facility.
The significance of the UDB and UEA Boundary is explained in the Interpretative Text as follows:
Critical in achieving the desired pattern of development is the adherence to the 2000 Urban Development Boundary (UDB) and 2010 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and
development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this
regard the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that actions of one single-purpose agency does not foster development that could cause other agencies to respond in kind and provide facil- ities in unanticipated locations. Such uncoor- dinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives.
The subject of plan amendments is also addressed in the Interpretative Text, which states the following on the subject:
It is recognized that the development capacity of the area within the UDB and UEA will vary with time. Part of the supply will be util- ized and additional supply will be added from time-to-time through the approval of Plan Amendments. Some land will be built upon at densities which are higher than permitted by existing zoning because rezonings will occur in the future, and some development will occur at densities lower than that permitted by zoning. Moreover, impediments can arise to
the utilization, at maximum potential densities, of all lands within the boundaries. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density
or character of a particular area. Because the development capacity of the LUP map fluc- tuates with time, it will be reevaluated on a periodic basis as part of the Plan review and amendment process.
The Interpretative Text enumerates the following as the "long- standing concepts embodied in Dade County's CDMP:"
Control the extent and phasing of urban development in order to coordinate development with programmed provision of public services.
Preserve and conserve land with valuable environmental characteristics, recreation uses, or scenic appeal.
Encourage development in areas most suit- able due to soil conditions, water table level, vegetation type, and degree of flood hazard. Restrict development in particularly sensitive and unique natural areas.
Maximize public ownership of beaches and shorelands within the Coastal Area to insure their preservation, conservation or public use.
Minimize consumption of energy for trans- portation purposes and the amount of air pol- lution from transportation sources by encour- aging a more compact urban form.
Shape the pattern of urban development to maximize the efficiency of existing public facilities and support the introduction of new public facilities or services such as improved mass transit systems.
Preserve sound and stable residential neighborhoods.
Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling, and the development of activity centers containing a mixture of land uses.
Promote development of concentrated activity centers of different sizes and char- acter to provide economies of scale and effi- ciencies of transportation and other services for both the public and private sectors.
Redirect higher intensity development towards activity centers of areas of high countywide accessibility.
Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs.
Prohibit new residential development and other noise sensitive activities from locations near airport noise impact zones.
Avoid excessive scattering of industrial or commercial employment locations.
Encourage agriculture as a viable economic use of suitable lands.
The Goal and Selected Objectives and Policies of the Future Land Use Element
The following is the goal of the future land use element (FLUE) of the 1990 CDMP:
Provide the best possible distribution of land use, by type and density, to meet the physical, social, cultural and economic needs of the present and future resident and tourist popu- lation in a manner that will maintain or improve
the quality of the natural and man-made environ- ment and amenities, and ensure the timely and efficient provision of services.
The following are among the objectives and policies found in the 1990 CDMP's FLUE:
Objective 1
Decisions regarding the location, extent and intensity of future land use in Dade County, and urban expansion in particular, will be based upon the physical and financial feasi- bility of providing, by the year 2000, all urbanized areas with services at Levels of Service (LOS) which meet or exceed the minimum adopted in the Capital Improvements Element.
Policies
1A. All development orders authorizing new, or significant expansion of existing urban lands uses, shall be contingent upon the pro- vision of services at the Levels of Service (LOS) which meet or exceed the LOS standards specified in the Capital Improvements Element (CIE). Metro
required by Chapter 163.3202, Florida Statutes (F.S.), implement the requirements of Section 163.3202(2)(g), F.S.
1B. Priority in the provision of services and facilities and the allocation of financial re- sources for services and facilities in Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority
in allocations for services and facilities shall support the staged development of the Urban Expansion Area (UEA).
* * * Objective 3
The location and configuration of Dade County's urban growth from 1989 through the year 2010 shall emphasize concentration around centers
of activity, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl.
Policies
3A. High intensity, well designed activity centers shall be facilitated by Metro-Dade County at locations having high countywide multimodal accessibility.
* * *
3C. Metro-Dade shall approve infill devel- opment on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facili- ties are projected to have capacity to accom- modate additional demand.
3D. Metro-Dade shall seek to prevent discon- tinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its biennial CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities.
* * * 3H. Public facility and service providers
shall give priority to eliminating any infra- structure deficiencies which would impede rehabilitation or renewal of blighted areas.
3I. In formulating or amending development regulations, Dade County shall avoid creating disincentives to redevelopment of blighted areas. Where redevelopment occurs within the urban area, requirements for contributions toward provision of public facilities may be moderated where underutilized facilities or surplus capacities exist, and credit toward required infrastructure contributions may be given for the increment of development replaced by redevelopment.
* * * Objective 5
Dade County shall, by the year 2000, reduce the number of land uses which are inconsistent with the uses designated on the LUP map and interpretative text, or with the character of the surrounding community.
Policies
5A. Uses designated on the LUP map and inter- pretative text, which generate or cause to generate significant noise, dust, odor, vibra- tion, or truck or rail traffic, shall be pro- tected from damaging encroachment by future approval of new incompatible uses such as residential uses.
5B. Residential neighborhoods shall be pro- tected from intrusion by uses that would disrupt or degrade the health, safety, tran- quility and overall welfare of the neighbor-
hood by creating such impacts as excessive noise, light, glare, odor, vibration, dust, or traffic.
5C. Complementary, but potentially incompat- ible uses shall be permitted on sites with functional neighborhoods, communities or dis- tricts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements.
Objective 6
Upon the adoption of this plan, all public and private activity regarding the use, development and redevelopment of land and the provision of urban services and infrastructure shall be consistent with the goal, objectives and poli- cies of this Element, with the adopted Population Estimates and Projections, and with the future uses provided by the adopted Land Use Plan (LUP) map and accompanying text entitled "Interpreta- tion of the Land Use Plan Map," as balanced with the Goals, Objectives and Policies of all Ele- ments of the Comprehensive Plan.
Policies
6A. The textual material entitled "Interpre- tation of the Land Use Plan Map" contained in this Element establishes standards for allowable land uses, and densities or intensities of use for each land use category identified on the adopted Land Use Plan (LUP) map, and is declared to be an extension of these adopted Land Use Policies.
6B. All development orders authorizing a new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goal, objectives and poli- cies of the CDMP including the adopted LUP map and accompanying "Interpretation of the Land Use Plan Map."
6C. All planning activities pertaining to development and redevelopment in Dade County shall be consistent with the "Population Esti- mates and Projections" contained in this Element, and with the locations and extent of future land uses as identified by the LUP map and its interpretative text.
6D. The area population projections shown on the map of "Population Estimates and Projec- tions" shall be used to guide public and private entities in planning for urban devel- opment and redevelopment and to guide the location, timing, and capacity of all urban services and facilities.
Objective 7
Beginning in 1989 Dade County shall maintain a process for periodic amendment to the Land Use Plan map, consistent with the adopted Goals, Objectives and Policies of this Plan, which will provide that the Land Use Plan Map accommodates urban expansion at projected countywide rates.
Policies
7A. Activity centers, industrial complexes, regional shopping centers, large-scale office centers and other concentrations of signifi- cant employment shall be recognized as poten- tial structuring elements of the Metropolitan area and shall be sited on the basis of metro- politan-scale considerations at locations with good countywide multi-modal accessibility.
7B. Distribution of neighborhood or community serving retail sales uses and personal and pro- fessional offices throughout the urban area shall reflect the spatial distribution of the residential population, among other salient social, economic and physical considerations.
7C. Residential development shall occur in locations that are suitable as reflected by such factors as the following: recent trends in location and design of residential units; projected availability of service and infra- structure capacity; proximity and accessi- bility to employment, commercial and cultural centers; avoidance of natural resource degra- dation; and maintenance or creation of amenities.
7D. In conducting its planning, regulatory, and capital improvements and intergovernmental coordination activities, Dade County shall seek to facilitate planning of residential areas as neighborhoods which include recrea-
tional, educational and other public facilities, houses of worship, and safe and convenient cir- culation of automotive, pedestrian and bicycle traffic.
7E. Through its planning, regulatory, capital improvements and intergovernmental coordination activities, Dade County shall continue to pro- tect agriculture as a viable economic use of land in Dade County.
* * * 7G. Necessary utility facilities may be lo- cated throughout Dade County in all land use
categories as provided in the "Interpretation of the Land Use Plan Map" text.
7H. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan.
Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstra- ted to be viable.
7I. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Ob- jectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would:
Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County;
Enhance or impede provision of services at adopted LOS standards.
Be compatible with abutting and nearby land uses; and
Enhance or degrade environmental or histor- ical resources, features or systems of County significance.
Objective 8
Dade County shall continue to maintain in the Code of Metropolitan Dade County and adminis- trative regulations, and shall enhance as nec- essary, by the date required by Section 163.3203, F.S., provisions which ensure that future land use and development in Dade County is consistent with the CDMP.
* * *
8D. Dade County shall continue to investigate, maintain and enhance methods, standards and reg- ulatory approaches which facilitate sound com- patible mixing of uses in projects and communi- ties.
8E. Dade County shall enhance and formalize its standards for defining and ensuring compatibility among proximate uses, and requirements for buffer- ing. Factors that will continue to be considered in determining compatibility include, but are
not limited to noise, lighting, shadows, access, traffic, parking, height, bulk, landscaping, hours of operation, buffering and safety.
Objective 9
Energy efficient development shall be accom- plished through metropolitan land use patterns, site planning, landscaping, building design, and development of multimodal transportation systems.
Policies
9A. Dade County shall facilitate contiguous urban development, infill, redevelopment of substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed use projects to promote energy conservation.
Selected Goals, Objectives and Policies of Other Elements
The following is the goal of the 1990 CDMP's traffic circulation element:
Develop, operate and maintain a safe, efficient and economical traffic circulation system in Metropolitan Dade County that provides ease of mobility to all people and for all goods, is consistent with desired land use patterns, conserves energy, and protects the natural environment.
Policy 4C. of the traffic circulation element provides as follows: Dade County's priority in construction, main-
tenance, and reconstruction of roadways, and
the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan Map. Second priority in transportation allocations shall support the staged develop- ment of the urbanizing portions of the County within the Urban Expansion Area. Transporta- tion improvements which encourage development
in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas.
The following are among the objectives and policies of the 1990 CDMP's aviation subelement:
Objective 4
Minimize air space interactions and obstruc- tions to assure the safety of aviation users and operators and residents of Dade County.
Policies
* * *
4D. Support zoning that would protect exis- ting and proposed aviation flight paths con- sistent with federal agency guidelines.
4E. Seek federal agency cooperation in pro- tecting future air space from development obstructions.
* * * Objective 8
Maximize compatibility between airports and the surrounding communities.
Policies
* * * 8B. Dade County shall implement Federal Aviation Administration FAR Part 150 Noise Compatibility Studies completed for appro-
priate airports through the Land Use Element of the Dade County Comprehensive Master Plan,
the Dade County Zoning Ordinance, and the South Florida Building Code to provide for land use compatibility in the vicinity of these air- ports.
Objective 6 and Policy 6A. of the 1990 CDMP's housing element provide as follows:
Objective 6
Increase residential accessibility to public facilities, services, and employment centers throughout the County to include parks and other recreational amenities.
Policies
6A. Utilize existing planning and programming mechanisms to insure that new residential devel- opment occurs only if it is coordinated with plans for the provision of an adequate level of services and facilities.
Policy 6C. of the 1990 CDMP's conservation, aquifer recharge and drainage element provides as follows:
Areas in Dade County having soils with good potential for agricultural use without addi- tional drainage of wetlands shall be protected from premature urban encroachment until the need for such urban conversion is demonstrated.
Objective 1 and Policy 1A. of the 1990 CDMP's water, sewer and solid waste element provide as follows:
Objective 1
In order to serve those areas where growth is encouraged and discourage urban sprawl, the County shall plan and provide for potable water supply, sanitary sewage disposal, and solid waste disposal services on a countywide basis in concert and in conformance with the future land use element of the comprehensive plan.
Policies
1A. The area within the Urban Development Boundary of the adopted Land Use Plan Map shall have the first priority in providing potable water supply, sanitary sewage disposal, and solid waste disposal services, and for commit- ting financial resources to these services.
Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Space, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health or safety.
Objectives 3, 4 and 5 and Policies 3B., 4A., 4B. and 5A. of the 1990 CDMP's capital improvements element provide as follows:
Objective 3
Upon adoption of this Plan land use decisions will be made in the context of available fiscal resources such that scheduling and providing
capital facilities for new development will not degrade adopted service levels.
Policies
* * * 3B. Service and facility impacts of new de- velopment must be identified and quantified so that sufficient public facilities will be planned and programmed to be available when needed. All development orders authorizing new, or significant expansion of existing
urban land uses, shall be contingent upon the provision of services at the Levels of Service (LOS) which meet or exceed the adopted LOS standards.
* * * Objective 4
Levels of service standards for those services listed in the CIE will be upgraded and main- tained at adopted levels.
Policies
4A. By the date set in Section 163.3202 F.S., Dade County shall formalize requirements that all new development regardless of size which benefits from the provision of public facili- ties and infrastructure will bear an equitable share of the costs of such facilities, make contribution in kind or transfer land, in amounts necessary to accommodate the impact of proposed development.
4B. Appropriate funding mechanisms will be adopted and applied by Dade County in order to assure the fiscal resources to maintain acceptable levels of service. Such funding mechanisms include special tax districts, municipal taxing service units, local option taxes, user fees, local gas taxes, general obligation bonds, impact fees, and special purpose authorities among others.
* * * Objective 5
Upon the adoption of this plan development approvals will strictly adhere to all adopted growth management and land development regu- lations and will include specific reference to the means by which public facilities and infrastructure will be provided.
Policies
5A. As a priority, previously approved de- velopment will be properly served prior to
new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban ser- vices and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service localized needs.
This element also includes a five-year schedule of capital improvements. Transmittal of Plan Amendment to the Department
On or about April 3, 1990, the County Manager transmitted to the Department Ordinance No. 90-28, along with other documentation, including the written material that the Suchmans had submitted in support of their application, as well as a document prepared by the Planning Department which purported to provide "a synopsis of the information received by the Board of County Commissioners as bases for approving the applications subject to DCA objections."
The Planning Department's synopsis stated the following with respect to Applications 39, 40 and 47:
Application No. 39
The flight path for training flights around Tamiami-Kendall Airport circle around this application site but do not directly fly over this site.
This application represents urban infill rather than leap frog development.
Approval of residential use on this site will allow people to live in close proximity to the employment center around the
Tamiami-Kendall Airport. Application No. 40
The site will be used for a Traditional Neighborhood Development (TND). A covenant was provided to ensure this.
Services are available on sites immediately to the east.
The area is not flood prone, or environmen- tally sensitive in any way.
Extensive testimony and documentation was received which casts doubt on the accuracy of the Planning Department's estimates and pro- jections of growth in this area. (See enclosed exhibits).
This site is nearby the industrial and office employment center which is developing around the Tamiami-Kendall Airport, therefore, urbanization of this site complements and supports the policy of promoting development around activity centers.
The extension of the Coral Reef Drive corridor provides an alternative to the Kendall Drive corridor as a location for additional urban development.
* * * Application 47
The site is bordered on the east and south by the year 2000 Urban Development Boundary (UDB). It is in the logical path of future urban development. To the south is the urban- izing area of Homestead.
Pockets of estate residential homes and zoning exist in the area designated Agricul- ture to the north and west of this site.
There are not level of service problems in the area.
The area is not flood prone.
The specific density of estate residences to be built on this site is not established by approving the CDMP amendment; that will be decided at a future zoning hearing.
The transmittal package sent by the County Manager was received by the Department on April 6, 1990.
Suchmans' Request to Receive Notice of the Department's Action
By letter dated March 30, 1990, David Goldwich, Esquire, counsel for the Suchmans, requested that the Department send him a copy of the "notice of intent to find the CDMP Application No. 40 in compliance or not in compliance with Chapter 163."
The Department responded to Goldwich's letter by sending him a letter, dated April 17, 1990, in which it promised to provide him with a copy of the notice of intent when it was issued.
The Department's Compliance Determination: Notice and Statement of Intent
In reviewing the County's 1990 Plan Amendment, the Department treated each approved application as a separate amendment to the CDMP.
Following its review of these approved applications, the Department issued its notice of intent "to find the amendment(s) adopted by Ordinance 90- 28, Amendment Nos. 39, 40 and 47 NOT IN COMPLIANCE and Amendment Nos. 1 to 9, 11 to 16, 19, 22 to 24, 26 to 29, 44 to 46, 49, 51, 53 and 55 to 71 IN COMPLIANCE, pursuant to Sections 163.3184 and 163.3187, F.S."
On or about May 15, 1990, the Department sent a copy of the notice of intent to the Miami Herald, along with a letter requesting that the notice be published in the May 21, 1990, edition of the Herald.
Through no fault of the Department's, the notice was published in the May 24, 1990, edition of the Herald, instead of the May 21, 1990, edition as the Department had requested.
The Department mailed a copy of the notice of intent to the Suchmans' counsel, 32/ although it was never received.
By letter dated May 18, 1990, to Mayor Clark, the Department advised the County of its compliance determination.
On May 21, 1990, the Department issued a statement of intent in which it explained the bases for its determination that "Amendment Nos. 39, 40 and 47 [were] NOT IN COMPLIANCE." In its statement of intent, the Department alleged that "Amendments 40 and 47 are not supported by an adequate suitability analysis of the vacant land to which they apply, or an adequate analysis documenting the need for the UDB expansion [in violation of] Rules 9J-5.005(2)(a), 9J- 5.006(2)(b) and 9J-5.006(2)(c), F.A.C.;" "Amendments 40 and 47 are inconsistent with other provisions in the plan (including but not limited to Objectives 1, 3 and 7, Policies 1A, 1B, 3D, and 7G and implementing procedures on p. 33 and 34 of the Future Land Use Element) concerning discouraging urban sprawl and prioritizing public facilities within the UDB [in violation of] Rules 9J- 5.005(5)(a), 9J-5.006(3)(b)7. and 9J-5.011(2)(b)3., F.A.C.;" "Amendments 40 and 47 are inconsistent with Objective 7, Policies 7E, H and I, and implementing procedures on p. 34 and 35 of the Future Land Use Element, and other provisions of the plan concerning future expansion of the UDB [in violation of] Rules 9J- 5.005(5)(a) and (b), F.A.C.;" "Amendments" 40 and 47 result in "an internal inconsistency because [they] negate the intended effect [of the settlement agreement between the Department and the County] of allowing roadway degradation in existing urban areas, which is to encourage development and redevelopment in such areas, promote public transportation and discourage urban sprawl" and, consequently, these amendments are in violation of "Rules 9J-5.006(3)(b)7. and 9J-5.011(3)(b)3., F.A.C.;" "[A]mendments 40 and 47 are not supported by data analysis which justifies changing the agricultural land use to industrial or residential land use [in violation of] Rules 9J-5.005(2)(a) and 9J-5.006(2)(c), F.A.C.;" "Amendment" 39 "inappropriately places a residential area within a proposed aviation flight path which is inconsistent with Objective 4 and Policy 4D in the Port and Aviation Element of the Dade Comprehensive Plan [in violation of] Rules 9J-5.005(5)(a) and (b), 9J-5.006(3)(b)3. and 9J- 5.006(3)(c)2., F.A.C.; "Amendments" 40 and 47 cause the CDMP to be inconsistent with Goal (16)(a) and Policies (16)(b)(2) and 18(b)(1) of the State
Comprehensive Plan, as well as Policies 57.1.2 and 69.1.1 of the South Florida Regional Policy Plan; and "Amendment" 39 causes the CDMP to be inconsistent with Policy 69.1.1 of the South Florida Regional Policy Plan.
Referral to the Division: The Department's Petition and Amended Petition
On June 8, 1990, the Department filed a petition with the Division of Administrative Hearings. Appended to the petition were copies of the Department's notice of intent and its statement of intent.
The Department alleged in the petition that the "plan amendments" made by the County through the adoption of Ordinance No. 90-28 were:
not in compliance because they contain the "inconsistent provisions" described in the Statement of Intent and for the following additional reasons:
Amendment 39 is inconsistent with Objec- tives 5, 6 and 7 and Policies 5B, 7C, 7D, and 7I-3 of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (6), F.A.C.
Amendment 40 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b).
Amendment 47 is inconsistent with Objectives
5 and 6 and Policies 5B, 7A, 7B, 7C and 7D of the plan's Future Land Use Element.
On June 19, 1990, the Department filed an amended petition with the Division. That portion of the original petition excerpted above was modified to read as follows in the amended petition:
The plan amendments are not in compliance because they contain the "inconsistent provisions" de- scribed in the Statement of Intent and for the following additional reasons:
Amendment 40 is inconsistent with Objec- tives 5 and 6, and Policies 5B, 7A, 7B, 7C, and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b).
Amendment 47 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7C and 7D of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (b).
Amendments 40 and 47 are inconsistent with the following provisions of the State Comprehensive Plan:
Land Use Goal (16)(a) and Policies (16)(b)1 and 2;
Downtown Revitalization Goal (17)(a) and Policy (17)(b)1;
Public Facilities Goal (18)(a) and Poli- cies (18)(b)1 and 2;
Economy Policies (22)(b) 3 and 12;
Agriculture Goal (23)(a).
The Objectors' Petition for Leave to Intervene and Rist's Amended Petition
On June 26, 1990, the Objectors filed with the Division a joint petition for leave to intervene in this matter. The petition incorporated the allegations that the Department had made in the original petition it had filed with the Division, as well as the recommendations that the Dade County Planning Department had made with respect to Applications 39, 40 and 47. In addition, the Objectors alleged the following in their petition regarding these approved applications:
[S]aid amendments 39, 40, and 47 are inconsis- tent with the State Comprehensive Plan, Sec- tion 187.201, F.S., specifically subsections 16a, 16b1, 16b2, 17a, 17b1, 18a, 18b1, 18b2,
20a, 22b3, 22b12, and 23a. Briefly put, the amendments fail, inter alia, to preserve natural resources; fail to maintain and expand agriculture; fail to encourage the separation of rural and urban life; provide for incompatible neighboring uses; promote urban sprawl; waste public and private assets; and fail to aid in a state transpor- tation system.
* * * The amendments are not supported by data showing a need for the uses approved [and] thus violate Rule 9J-5.006(2)(c), Florida Administrative Code.
On December 10, 1990, at the outset of the final hearing in the instant case, Objector Rist requested permission to file an amended petition which contained the following additional allegations not found in the Objectors' joint petition for leave to intervene:
Amendments 40 and 47 do not reflect and are inconsistent with "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" pages I-35 through 39 and not pages
33 through 35 of the Future Land Use Element as erroneously cited in the original petition.
It is alleged that amendment 40 and 47 do not reflect and are inconsistent with Policies 3A, 3H, 5A, and 7A of the Future Land Use Element of the Comprehensive Plan.
Amendments 39, 40 and 47 do not reflect
and are inconsistent with Policy 6C of the Con- servation Element of the Comprehensive Plan.
Amendment 39 does not reflect and is incon- sistent with Objective 8 of the Ports and Avia- tion Element of the Comprehensive Plan.
Amendments 40 and 47 are inconsistent with Policy 23(b)2 of the State Comprehensive Plan.
Miscellaneous Findings: The State Comprehensive Plan
The State Comprehensive Plan addresses issues of statewide importance.
The following are among the more than 300 individual goals and policies which comprise the State Comprehensive Plan:
LAND USE.-
Goal.- In recognition of the importance of preserving the natural resources and enhanc- ing the quality of life of the state, develop- ment shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner.
Policies.-
Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce.
Develop a system of incentives, and disin- centives which encourages a separation or urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats.
* * *
DOWNTOWN REVITALIZATION.-
Goal.- In recognition of the importance of Florida's developing and redeveloping down- towns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient and environmentally accept- able manner, Florida shall encourage the cen- tralization of commercial, governmental, retail, residential, and cultural activities within downtown areas.
Policies.-
1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities.
* * *
PUBLIC FACILITIES.-
Goal.- Florida shall protect the sub- stantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner.
Policies.-
Provide incentives for developing land in a way that maximizes the uses of existing pub- lic facilities.
Promote rehabilitation and reuse of exis- ting facilities, structures, and buildings as an alternative to new construction.
* * *
(20) TRANSPORTATION.-
(a) Goal.- Florida shall direct future trans- portation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass tran- sit, and other transportation modes.
* * *
THE ECONOMY.-
Goal.- Florida shall promote an economic climate which provides economic stability, max- imizes job opportunities, and increases per capita income for its residents.
Policies.-
* * *
Maintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resour- ces.
* * *
12. Encourage the development of a business climate that provides opportunities for the growth and expansion of existing state indus- tries, particularly those industries which are compatible with Florida's environment.
* * *
AGRICULTURE.-
Goal.- Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and re- lated industries in order to be a healthy and competitive force in the national and inter- national marketplace.
Policies.
Ensure that goals and policies contained
in state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses.
Encourage diversification within the agri- culture industry, especially to reduce the
vulnerability of communities that are largely reliant upon agriculture for either income or employment.
Miscellaneous Findings: The Regional Plan for South Florida
The South Florida Regional Planning Council has adopted a Regional Plan for South Florida to guide future development in Broward, Dade and Monroe Counties.
The following are among the more than 650 individual goals and policies found in the Regional Plan:
Regional Goal:
57.1 New development will not be permitted
in areas where public facilities do not already exist, are not programmed, or cannot economic- ally be provided.
Regional Policies:
* * *
57.1.2 Give priority to development in areas that are in need of redevelopment and in areas within which adequate support services are either programmed or available
Regional Goal:
58.1 Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of land uses on the surrounding environment.
Regional Policies:
* * *
58.1.7 Encourage the compatibility of adja- cent land uses.
* * * Regional Policies:
64.2.1 Land use in and around air- and
sea-ports must be strictly controlled to allow future increased operations, to optimize volume, and to prevent unnecessary social or economic conflicts and costs.
* * * Regional Goal:
The 1990-1995 rate of loss of agricul- tural land to urban uses should be reduced by
10 percent from the 1980-1985 rate.
Regional Policies:
Encourage activities that maintain an economic/regulatory climate to ensure the con- tinued viability of agricultural interests when those interests are balanced against other concerns.
The Regional Plan contains the following "background" information regarding the goal and policies pertaining to agriculture:
Agriculture is one of Florida's most important industries. Traditional agriculture (citrus, vegetables and melons, livestock, poultry, greenhouse and nursery, field and other crops) contributed 27 billion dollars to Florida's economy in 1984. The agricultural vitality
of South Florida stems from its climate which allows crops to be grown throughout the year, and the production of unique crops such as mangoes.
In 1980, 126,785 acres of land, 4.7 percent of the total area in South Florida, was in cropland, pasture and range land, and forest
land. This represents 0.5 percent of all such land in the State. Agricultural land is rapidly being lost. . . .
When compared to Broward County, Dade County generates a significantly larger share of the economic activity due to agriculture in the Region. 33/ Current 1986 figures show 85,000 acres in agriculture, producing a large variety of crops. These include: tomatoes, snap beans, Irish potatoes, squash, tropical vegetables, sweet corn and fruits such as limes, mangoes and avocados. The markets for these fruits and vegetables are mainly in New York, Philadelphia, Boston, Atlanta, and Canada.
Dade County is the largest producer of toma- toes, snap beans, and squash, of any county in the State of Florida. Over 90 percent of
limes and mangoes produced in the United States are grown in Dade County. Dade County has the largest ornamental nursery industry of any county in the State of Florida. The main reason for Dade's success in agriculture is South Florida's climate. Vegetables are pro- duced in mid-winter when no other areas in the
U.S. are producing. These crops provide fresh produce for the country's markets.
It is significant to note that Dade County ranks last in the State for average farm size (59 acres) but is fifth in the State for market
value of agricultural products. Agriculture is profitable on a per acre basis because the climate allows for double cropping. . . .
In 1983, the agricultural industry produced less than 1 percent of total earnings in the South Florida region. The importance of this
sector cannot be measured in dollar terms alone.
The general public tends to view agriculture as a transitional land use. The benefits of maintaining the agricultural economy, however,
are significant. Agricultural land can provide open space between areas with urban uses, it can serve as a watershed where water is collec- ted and later used in a farm or non-farm use, it can provide a habitat for wildlife, and it can provide unique beauty. New technology and agricultural practices are also providing new opportunities for disposing of sewage sludge
on agricultural lands, benefitting both the rural and urban sectors. . . .
Agricultural research activities have already yielded many benefits to South Florida agri- culture. Progress has been made in developing: more efficient irrigation systems, integrated pest management, improved strains of crops in production, as well as new crops to put into production. The findings of agricultural research can continue to improve the conser- vation, production, and marketing techniques available to South Florida farmers.
South Florida farmers are experiencing many of the same problems that farmers in other high growth areas are facing. 34/ Land in South Florida that is suitable for agricul- tural use is also highly suitable for urban uses. Given the geographic configuration of the Florida Peninsula agricultural areas are never far removed from urban areas. Urban growth and the pressures of suburbanization
are constantly felt by the Region's farmers. 35/
Many problems arise when agricultural and urban land uses interface. Non-farm residents complain because of farm noise, smells, and such practices as fertilizer and pesticide spraying. Nuisance suits and ordinances that
prohibit certain farm practices create pressures that reduce the profitability and desirability to farm. 36/
Farm land conversion to urban uses is a serious problem in our Region. 37/ Analysis of prop- erty appraiser data shows the reduction in net agricultural acreage between 1980-1985 to be 18
percent for the Region. This figure applies mainly to agricultural land in Broward County. According to the Dade County Cooperative Exten- sion Service, net agricultural acreage has re- mained stable for the past 20 years. 38/ This is because land rezoned for urban uses has been replaced by other lands converted for agricul- tural use. This represents another problem.
As agricultural land is converted to urban uses, agriculture may be pushed into wetlands, wild- life habitats, and other fragile ecosystems.
Miscellaneous Findings: Urban Sprawl
In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements."
The memorandum defines "urban sprawl" as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density, single-dimensional development." These land use patterns are described in the memorandum as follows:
Leapfrog development occurs when new develop- ment is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appro- priate for urban development.
* * * Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant com- munities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources.
Strip or ribbon development involves the loca- tion of high amounts of commercial, retail, office and often multi-family residential de- velopment in a linear pattern along both sides of major arterial roadways.
* * * Low-density, single-dimensional development consists of single land uses, typically
low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive devel-
opment pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources.
The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners.
Indicators of sprawl mentioned in the memorandum include the following:
The amount of residential land and densities depicted on the future land use map signifi- cantly exceed the projected need for residen- tial land use by type during the planning period.
In discussing this indicator, the memorandum advised that "[a]ny plan in which the amount of land designated to receive development totals more than 125 percent of the amount needed to accommodate projected need will be closely scrutinized by the DCA."
In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it may be necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon
their population densities Density | per | square mile: Classification |
0-200 | Rural | |
201-500 | Exurban | |
501-1000 | Suburban | |
1001-2000 | Medium [Urban] Density | |
2001-5000 | High [Urban] Density | |
5000+ | Highest Urban Density |
Among the specific techniques recommended in the memorandum to curb "urban sprawl" are establishing "urban service areas and urban growth boundaries," "[p]romoting urban infill development and redevelopment," and imposing "mixed-use and clustering requirements." With respect the latter technique, the memorandum states as follows:
One of the most important and critical tech- niques for discouraging sprawl is strong mixed use policies which require residential and
nonresidential uses to be located in reason- ably close proximity to each other. Such policies should promote an attractive, func- tionally and physically integrated mix of commercial, office, retail, residential (including affordable housing), and recrea- tional land uses. Development designed in this manner can even occur away from existing urban areas and not represent urban sprawl if it consists of a complementary mix of residen- tial and nonresidential land uses at medium to high densities, promotes high levels of inter- nal capture, does not rely on rural arterials for local traffic movements, and encourages pedestrian and bicycle traffic. The tradi- tional neighborhood development district code is an example of how this concept can be implemented.
CONCLUSIONS OF LAW
General Legal Principles
Pursuant to Chapter 163, Part II, Florida Statutes, otherwise known as the Local Government Comprehensive Planning and Land Development Regulation Act (Act), counties and incorporated municipalities in the State of Florida are required to prepare and adopt comprehensive plans of the type and in the manner prescribed by the Act.
Once adopted, these comprehensive plans may be amended in the manner prescribed by Section 163.3187, Florida Statutes.
Section 163.3187, Florida Statutes, mandates that "[c]omprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to s. 163.3177(2)."
Section 163.3177(2), Florida Statutes, provides as follows:
Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be financially feasible.
Adopted local government comprehensive plans and plan amendments are subject to review by the Department under the Act. The purpose of such review is to determine whether the plans and plan amendments are "in compliance." Section 163.3184(8), Fla. Stat.
"In compliance," as used in the Act, "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 Dade County, 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 Dade, as well as Broward and Monroe Counties.
The Legislature has directed that the following guidelines be followed in determining consistency 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 "compat- ible 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 direc- tion of realizing goals and policies of the state or regional plan. For the purposes of determining consistency with the state com- prehensive 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 plans.
Section 163.3177(10)(a), Fla. Stat. 39/ Furthermore, the Legislature has specifically stated that 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.
It is apparent from a reading of the provisions of Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, and Chapter 9J-5, Florida Administrative Code, as well as the provisions of the State and Regional Plans, that a plan amendment may be found not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, only if it renders the local government's comprehensive plan, when considered in its entirety, not "in compliance." In determining whether a plan amendment has had such an impact, it is necessary to consider the cumulative effect of the various component parts that comprise the amendment, rather than merely focusing upon isolated portions of the amendment and assessing their impact without taking into account the other changes made to the plan. Cf. Department of Community Affairs v. Lee County, 12 FALR 3755 (Fla. Administration Commission 1990)("[t]he statutes contemplate that a local plan shall be judged as a whole;" "the separate elements of a local government comprehensive plan are not susceptible to a compliance determination"); Section 163.3184(3)(b), Fla. Stat. ("[a] local governing body shall not transmit [to the Department] portions of a plan or plan amendment;" "[i]n the case of comprehensive plan amendments, the local governing body shall transmit to the [Department] . . . the complete amendment;" "[l]ocal governing bodies shall consolidate all proposed plan amendments into a single submission for each of the two plan amendment adoption times during the calendar year").
If the Department of Community Affairs determines following its review of a local government's adopted plan amendment that the plan amendment is not "in compliance," it is required to issue, and to then transmit to the Division of Administrative Hearings, a notice of its intent to find the plan not "in compliance." The notice must be issued within 45 days of the Department's receipt of the plan amendment "by publication . . . and by mailing a copy to the local government and to persons who request [a copy]." Section 163.3184(8) and (9), Fla. Stat.
The Department may not find a plan amendment to be not "in compliance" if it was requested to, but did not, "participate" in the public hearing at which the local governing body adopted the plan amendment. Section 163.3184(8), Fla. Stat. Furthermore, the Department's determination of noncompliance may "only be based upon" the Department's ORC report or "[a]ny changes made by the local government to the . . . plan amendment as adopted." Section 163.3184(8), Fla. Stat.
After receiving the Department's notice of intent, the Division of Administrative Hearings is responsible for assigning a hearing officer to conduct "a proceeding under s. 120.57 in the affected local jurisdiction." Only the Department, the affected local government and "affected persons" who intervene are entitled to participate as parties in such a proceeding. Section 163.3184(10)(a), Fla. Stat. For purposes of ascertaining whether a would-be
intervenor is an "affected person" entitled to participate as a party in the proceeding, the following definition set out in Section 163.3184(1)(b), Florida Statutes, must be applied:
"Affected person" includes the affected local government; persons owning property, resid- ing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoin- ing 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 would-be intervenor 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'").
An "affected person" may raise compliance issues not raised by the Department in the proceeding. See Department of Community Affairs v. Hillsborough County, No. 89-5157GM (Fla. DOAH August 27, 1990).
"In the proceeding, the local government's determination that the . .
. plan amendment is in compliance is presumed correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the . . . plan amendment is not in compliance. The local government's determination that elements of its plan [as amended] are related to and consistent with each other shall be sustained if the determination is fairly debatable." Section 163.3184(10)(a), Fla. Stat. This burden of proving that the local government's amended plan is internally inconsistent 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, it must be shown that it is beyond reasonable debate or legitimate controversy that, as a result of the plan amendment, the local government's plan has provisions that are inconsistent and cannot be reconciled. 40/ 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).
The hearing officer assigned the case must weigh the evidence adduced at hearing against these standards and submit a recommended order containing his or her findings to the Administration Commission for final agency action. Section 163.3184(10)(b), Fla. Stat.
If the Administration Commission finds that the plan amendment is not "in compliance," it must "specify remedial actions which would bring the comprehensive . . . plan amendment into compliance." Furthermore, in the
exercise of its sound discretion, it may impose the following penalties upon the offending local government:
. . . The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges, or water or sewer systems within the boundaries of those local governmental entities which have comprehensive plans or plan elements that are determined not to be in compliance. The commission order may also specify that the local government shall not be eligible for grants administered under the following programs:
The Florida Small Cities Community Develo- pment Block Grant Program, as authorized by ss. 290.041-290.049.
The Florida Recreation Development Assis- tance Program, as authorized by chapter 375.
Revenue sharing pursuant to ss. 206.60, 210.20, and 218.61 and part I of chapter 212, to the extent not pledged to pay back bonds.
If the local government is one which is required to include a coastal management ele- ment in its comprehensive plan pursuant to
s. 163.3177(6)(g), the commission order may also specify that the local government is not eligible for funding pursuant to s. 161.091. The commission order may also specify that the fact that the coastal management element has been determined to be not in compliance shall be a consideration when the Department of Natural Resources considers permits under
s. 161.053 and when the Board of Trustees of the Internal Improvement Trust Fund considers whether to sell, convey any interest in, or lease any sovereignty lands or submerged lands until the element is brought into compliance.
Section 163.3184(11), Fla. Stat.
Because the Act authorizes the imposition of these "substantial" 41/ penalties against a local government whose plan amendment is found to be not "in compliance," the Act's provisions must be strictly and narrowly construed. See D'Alemberte v. Anderson, 349 So.2d 164 (Fla. 1977); Lollie v. General American Tank Storage Terminals, 34 So.2d 306 (Fla. 1948); Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 3d DCA 1974).
Another factor that must be taken into consideration in construing and applying the provisions of the Act in the context of the instant case is (1) that "pursuant to the Florida Constitution . . . Dade County has the power to enact legislation, so long as such legislation does not conflict with the Constitution or any applicable general law," and (2) that such "conflict" will
be found only where the provisions in question are "contradictory in the sense [that they] cannot [possibly] co-exist." See Jordan Chapel Freewill Baptist Church v. Dade County, 334 So.2d 661, 664 (Fla. 3d DCA 1976).
Procedural Issues
Department Participation at the Final Adoption Hearing
The County, Wellenhofer and the Suchmans (hereinafter referred to collectively as the "Proponents") contend that the Department was precluded from finding the County's 1990 Plan Amendment not "in compliance" and initiating the instant proceeding because it had not "participated" in the final adoption hearing as required by Section 163.3184(8)(a), Florida Statutes. They contend that "[t]he mere attendance of the Department's representative Harry Schmertman at a portion of [the] hearing does not constitute participation within the meaning of the Act."
While it is true that Schmertman did not make any public remarks during the hearing, he was never asked to make such remarks by the Board of County Commissioners, whose members were made aware of his presence at the hearing site. Furthermore, although he left the hearing before its conclusion, he did so in full view of the Board and no one requested that he remain.
In Department of Community Affairs v. Charlotte County, 12 FALR 2769 (Fla. Administration Commission 1990), the representative sent by the Department to the final adoption hearing also remained silent during the hearing and departed early. Nonetheless, the Administration Commission concluded that the Department was "not prohibited by the Act to find the Plan not in compliance," reasoning as follows:
Charlotte County asked DCA to attend and par- ticipate at the County adoption hearing on December 13, 1988. DCA advised the County it would do so, but its representative would be unable to sign-off on substantive provisions while at the hearing. This limitation upon participation was entirely justified. Requir- ing on-the-spot approval or rejection of plan revisions would unreasonably deprive DCA of the 45 days provided by Section 163.3184(8)(a) for reviewing new provisions in the context of the entire plan and the accompanying data and analysis.
DCA complied with the County's request by send- ing Mr. Schmertman 42/ to the adoption hearing. The Act does not command, and good sense does not permit, the DCA representative to force his participation upon the local government. In so doing, he might be violating the prerogative of the local government to restrict his participa-
tion to mere attendance, if that is all they want. All that the Act requires is that responsible representatives of the local government are informed of the presence of the DCA represen- tative. Certainly, the conventional means of satisfying this requirement is for the DCA
representative to announce himself at the adoption hearing. A formal announcement is unnecessary if the DCA representative is recognized by responsible representatives of the local government. In this event, however, DCA assumes the risk that its representative erroneously believes that he has been seen and, if seen, recognized as the DCA representative. In this case, the proof amply demonstrated that two key County representatives recognized
Mr. Schmertman as the DCA representative.
The absence of Mr. Schmertman from the December 16 hearing is immaterial.
Mr. Schmertman was not required to ask whether his presence was required for the December 16 hearing because local officials had clearly decided not to involve him actively in the adoption hearing.
Id. at 2778.
On the authority of Charlotte County, the Administration Commission should reject the Proponents' argument that the Department was precluded from finding the County's 1990 Plan Amendment not "in compliance" and initiating the instant proceeding because the Department had not "participated" in the final adoption hearing as required by Section 163.3184(8)(a), Florida Statutes.
The Department's Publication of its Notice of Intent
The Proponents further contend that the Department is without jurisdiction to challenge the 1990 Plan Amendment because it did not publish its notice of intent within 45 days of its receipt of the amendment as required by Section 163.3184(8)(b), Florida Statutes.
A reading of Section 163.3184, Florida Statutes, however, reveals that the 45-day requirement prescribed by subsection (8)(b) is not jurisdictional. See Department of Community Affairs v. Metro Dade County, No. 89-564GM (Fla. DOAH May 5, 1989). There is nothing in the statute to suggest that the Legislature intended to prohibit the Department from taking any further action with respect to an adopted plan or plan amendment it finds not "in compliance" if it fails to publish its notice of intent to make such a finding within the 45-day period prescribed in the statute. The Legislature specified in subsection (8) those circumstances where inaction on the part of Department will result in the divestiture of Department's authority to challenge an adopted plan or plan amendment on the ground that it is not "in compliance." The Legislature did not include among these circumstances the Department's failure to timely publish its notice of intent. This omission is compelling evidence of the Legislature's intent that untimely publication not have the effect urged by the Proponents. See Department of Business Regulation v. Hyman, 417 So.2d 671 (Fla. 1982)(failure of agency to render its final order within the 90-day period mandated by Section 120.59(1), Florida Statutes, does not automatically strip the agency of its authority to take final agency action; "[i]f the legislature had intended that untimely orders rendered in proceedings in which the agency is a protagonist would always be unenforceable, . . . it would have included the necessary language in Section 120.59(1) to impose such sanction as it did in other parts of chapter 120"); Broward County Human Rights Board v. Rimon
Apartments, 526 So.2d 773 (Fla. 4th DCA 1988)(Board did not lose jurisdiction to conduct hearing by failing to commence hearing within 130 days from filing complaint as required by statute; "[t]he ruling in this case is governed by the generally accepted principle that when an administrative board fails to follow its mandated conduct, the appropriate procedure is to require the board to conduct its business as required by its enabling legislation").
Accordingly, the Administration Commission should reject the Proponents' argument that, because the Department did not publish its notice of intent within 45 days of its receipt of the 1990 Plan Amendment as required by Section 163.3184(8)(b), Florida Statutes, the Department is without jurisdiction to challenge the amendment.
The Notice Given the Suchmans
The Proponents advance the argument that the Department is without jurisdiction to challenge the 1990 Plan Amendment for the additional reason that it did not mail a copy of its notice of intent to the Suchmans pursuant to their request as required by Section 163.3184(8)(b), Florida Statutes.
The evidence concerning the routine practices of the Department establishes that, contrary to the assertion made by the Proponents, a copy of the notice was mailed to the Suchmans. See Section 90.406, Fla. Stat.("[e]vidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice"); Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla. 1973)("proof of general office practice satisfies the requirement of showing due mailing").
Moreover, even if the evidence had established otherwise, it would not be sufficient to find that the Department is without authority to pursue the instant challenge to the 1990 Plan Amendment. For the same reason that the Department's untimely publication may not be viewed as a jurisdictional deficiency, neither may its failure to timely mail a copy of its notice of intent to persons requesting same be so viewed.
Accordingly, the Administration Commission should reject the Proponents' argument that, because the Department did not mail a copy of its notice of intent to the Suchmans pursuant to their request as required by Section 163.3184(8)(b), Florida Statutes, the Department is without jurisdiction to challenge the 1990 Plan Amendment.
The Scope of the Department's Challenge
The Proponents further argue that, contrary to the requirement of Section 163.3184(8)(a), Florida Statutes, the Department has impermissibly expanded the scope of its challenge to the 1990 Plan Amendment in this proceeding to include issues not raised in the ORC. The argument is not persuasive.
The only three applications that the Department has taken issue with in the instant case are Applications 39, 40 (which was modified in part at the final adoption hearing) and 47. The Department, in its ORC, addressed each of these applications and indicated that their approval by the County would result in a finding of noncompliance. With respect to Application 39, the ORC suggested that the proposed residential development of Wellenhofer's property
would be incompatible with, and would encroach upon, the operations of the Tamiami Airport. With respect to Applications 40 and 47, the ORC alleged that they were not supported by adequate data and analysis justifying their approval. Concerns were also raised that their approval would adversely impact the County's efforts to discourage urban sprawl, to encourage the separation between urban and rural land uses, and to maintain the viability of agriculture. These issues raised in the ORC form the bases of the noncompliance arguments made by the Department in this proceeding.
Accordingly, although the Department may not have cited in the ORC each and every specific provision upon which it has relied in this proceeding in making these arguments, its reliance upon these previously unmentioned provisions is not in violation of the requirement of Section 163.3184(8)(a), Florida Statutes, that the Department's finding of noncompliance be "based upon" the ORC where no changes have been made to the plan or plan amendment in question at the final adoption hearing.
The Objectors' Standing 43/
According to the Proponents, the Redland Citizens Association, Inc., the Sierra Club, the League of Women Voters, Martin Motes, Bruce Rohde, Carol Rist and Frances Mitchell "lack standing to intervene in this proceeding," "Rod Jude is entitled to intervene as to Application 40 only," and "Evelyn Sutton is entitled to intervene as to Application 47 only." The Proponents' position is without merit on all counts.
The evidence establishes that Objectors Motes, Rhode, Rist, Mitchell, Jude and Sutton are individuals who, at all times material hereto, have resided and owned property in Dade County and that Motes, Rist and Jude, in addition, have owned and operated businesses in the County. The evidence further establishes that each of these individuals, either in person or through a representative, submitted oral objections during the final adoption hearing on the 1990 Plan Amendment. Accordingly, they each qualify as "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this proceeding and challenge the 1990 Plan Amendment. 44/
The record reveals that the Redland Citizen Association, Inc., and, through their respective local organizations, the Sierra Club and the League of Women Voters, maintain a significant presence in Dade County that is sufficient to make them a consistent part of the community. They therefore may be considered as "persons 45/ . . . residing" in the County, within the meaning of Section 163.3184(1)(a), Florida Statutes. Cf. Puente v. Arroyo, 366 So.2d 857, 858 (Fla. 3d DCA 1979)(for insurance coverage purposes, a resident "is more than a mere visitor or transient, but lives at a place with additional attachments of such significance as to render that person more or less a consistent part of the community"). The record further reveals that each of these organizations, through their respective representatives, submitted oral objections during the final adoption hearing on the 1990 Plan Amendment. Accordingly, like the other Objectors, these organizations each qualify as "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this proceeding and challenge the 1990 Plan Amendment.
The Proponents contend that the Objectors may challenge the plan amendment only on those grounds that they raised during the final adoption hearing. A similar argument was made in Benson v. City of Miami Beach, 12 FALR 4577 (Fla. Department of Community Affairs 1990), rev'd on other grounds, 16 FLW D1380 (Fla. 3d DCA May 21, 1991). The Hearing Officer in that case was
persuaded by the argument. He concluded that challengers to the City of Miami Beach's comprehensive plan who submitted objections to the plan during the final adoption hearing, but did not raise the issue of the City's failure to comply with the notice requirements of Section 163.3184(15)(c), Florida Statutes, were not able to subsequently challenge the plan on this ground. The Department of Community Affairs 46/ disagreed with the Hearing Officer, stating as follows:
The Legislature has not seen fit to limit citizen standing to intervene 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.
Id. at 4582. The Department thus considered the "inadequate notice" issue raised by the challengers, but rejected their argument that the City had not complied with the requirements of Section 163.3184(15)(c), Florida Statutes. The challengers appealed to the Third District Court of Appeal. The appellate court held that there had not been compliance with these requirements.
Accordingly, it reversed the Department's final order and remanded the matter "with directions to give a new notice," notwithstanding that the challengers had not raised the issue of inadequate notice in the objections they had submitted during the final adoption hearing.
To be consistent with the holding in Benson, the Administration Commission should reject the Proponents' contention that, in challenging the 1990 Plan Amendment in the instant proceeding, the Objectors are limited to the grounds they raised in the objections they submitted to the Board of County Commissioners during the final adoption hearing.
Rist's Motion for Leave to File an Amended Petition
"[A]mendments [to pleadings] are viewed favorably so as to assure the trial of cases on their merits." Title & Trust Company of Florida v. Parker,
468 So.2d 520, 522 (Fla. 1st DCA 1985). Unless such amendments would result in unfair prejudice to the opposing party, they should be allowed. See Key Biscayne Council v. Department of Natural Resources, 16 FLW D1239 (Fla. 3d DCA May 7, 1991); Wackenhut Protective Systems, Inc. v. Key Biscayne Commodore Club Condominium I, Inc., 350 So.2d 1150, 1151 (Fla. 3d DCA 1977).
Granting Rist's motion for leave to file an amended petition to intervene would not unfairly prejudice the Proponents inasmuch as the amended petition she seeks to file would not materially change the issues in the instant
proceeding, nor vary the relief sought. Accordingly, the motion is hereby granted. See Key Biscayne Council v. Department of Natural Resources, supra; Title & Trust Company of Florida v. Parker, supra.
Compliance Issues Internal Consistency
Because Section 163.3187, Florida Statutes, which prescribes the manner in which plan amendments must be made, mandates that "[c]omprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to s. 163.3177(2)," 47/ and does not specifically refer to any of the other provisions with which a local government's comprehensive plan must be consistent to be "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes, it is appropriate to consider the Department's and Objectors' claims of internal inconsistency before examining any of the other compliance issues they have raised in this proceeding.
The claims of internal inconsistency advanced by the Department and Objectors focus upon the changes made to the CDMP resulting from the approval of three applications: Applications 39, 40 and 47 (which they refer to as "Amendments" 39, 40 and 47). To prevail on these claims, it was incumbent upon them to establish that it is beyond reasonable debate or legitimate controversy that, as a result of these changes, the 1990 CDMP has provisions that are inconsistent and cannot be reconciled. A review of the evidence submitted at hearing, including most significantly the 1990 CDMP itself, reveals that the Department and Objectors have failed to meet this burden.
In evaluating the Department's and Objectors's claims of internal inconsistency, it is necessary to fully understand the nature and scope of the changes made to the CDMP by "Amendments" 39, 40 and 47. Collectively, these "amendments" simply changed the land use designation of a total of 375 acres of land (25 acres from "industrial and office" to "low density residential communities;" 20 acres from "agriculture" to "industrial and office; 170 acres from "agriculture" to "low density residential communities;" and 160 acres from "agriculture" to "estate density residential communities") and, in addition, added a total of 480 acres to the land area within the UDB. These "amendments" did not constitute "development orders" 48/ authorizing the immediate development of the subject properties for residential use at the maximum densities permitted for the applicable reassigned land use category, regardless of whether such development would be in conflict with other provisions of the 1990 CDMP. As was the situation in Miller Enterprises, Inc. v. Florida Land and Water Adjudicatory Commission, 16 FLW D1855, 1856 (Fla. 5th DCA July 18, 1991)(Cobb, J., concurring specially), where the Fifth District Court of Appeal had under consideration a challenge to "a provision of a Seminole County land use plan, which designates some five acres of land . . . as commercial," "the issue [in this case] is planning, not development."
Neither the revised land use designations, nor the altered UDB, that were the product of "Amendments" 39, 40 and 47 are in irreconcilable conflict with any of the textual provisions of the 1990 CDMP cited by the Department and Objectors in their pleadings, including those designed to prevent urban sprawl, to promote the efficient use of land and delivery of services, to protect agricultural lands against premature urban encroachment and to enhance land use compatibility. 49/ These textual provisions which effectively impose restrictions upon the development of land in the County, supplement the land use
designations and the UDB appearing on the FLUM. 50/ They do not conflict with them. That such is the case is made particularly apparent from a reading of the following advisement that appears on the face of the FLUM itself:
This plan map is not a zoning map! Within each map category on this plan map, numerous land uses, zoning districts and housing types may occur. This plan map may be interpreted only as provided in the plan text entitled "Interpretation of the Land Use Plan Map:
Policy of the Land Use Element." That text provides necessary definitions and standards for allowable land uses, densities or inten- sities of use for each map category and for interpretation and application of the plan as a whole. That text must be interpreted in its entirety in interpreting any one plan map category, and no provision shall be used in isolation from the remainder.
The land use plan map (LUP), in conjunction with all other adopted components of the Comprehensive Development Master Plan (CDMP), will govern all development-related actions taken or authorized by Metropolitan Dade County. . .
Accordingly, notwithstanding that the properties that were the subject of "Amendments" 39, 40 and 47 are now designated on the FLUM for residential use and, in the case of the northern 20 acres of the Suchmans' property, for "industrial and office" use, and that they are now within the UDB, if the 1990 CDMP is properly implemented, the development of these properties will not be permitted if such development would be inconsistent with the textual provisions of the plan relied upon by the Department and Objectors in support of their internal inconsistency argument. If such development is allowed despite being inconsistent with these textual provisions, "there is nothing to prevent any affected citizen from filing an injunctive action" in Dade County Circuit Court pursuant to Section 163.3215, Florida Statutes, to challenge the "development order" authorizing such development. Miller Enterprises, Inc. v. Florida Land and Water Adjudicatory Commission, supra.
Because the Department and Objectors have failed to prove that it is beyond reasonable debate or legitimate controversy that, as a result of the approval of Applications 39, 40 and 47, the 1990 CDMP contains provisions that are inconsistent and cannot be reconciled, the Administration Commission should reject their allegations of internal inconsistency.
Rule 9J-5.005(5)(b), Florida Administrative Code
According to the Department and Objectors, not only are "Amendments" 39, 40 and 47 in conflict with various textual provisions of the 1990 CDMP, they fail to "reflect" these textual provisions. They allege that this violates the requirements of Rule 9J-5.005(5)(b), Florida Administrative Code.
Rule 9J-5.005(5)(b) provides as follows:
Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan.
The rule does not require that each land use designation on a comprehensive plan's future land use map "reflect" the plan's collective goals, objectives and policies. Only the map, as a whole, must do so, to the extent possible.
The FLUM, as amended by Ordinance No. 90-28, meets this requirement. The proposed pattern of urban development depicted on the FLUM "reflects" the 1990 CDMP's overall approach, focus and direction. Consistent with the goals, objectives and policies of the plan, the FLUM depicts a generally compact, contiguous and efficient pattern of development which features multi-dimensional land uses in and around activity centers, rather than a scattered, discontinuous and inefficient pattern of development that is characteristic of urban sprawl. The FLUM also shows the UDB, which is an integral part of the plan's strategy to contain urban growth and prevent its premature spread to non-urban areas. A substantial amount of land outside the UDB is designated on the FLUM for "agriculture" use. These designations reflect the plan's commitment to protect agricultural lands from urban encroachment and to maintain the economic viability of agriculture in the County. Others lands outside the UDB, as well as those inside the UDB, are assigned environmental protection land use designations that reflect the plan's conservation efforts. Given the concerns raised by the Department and Objectors regarding the compatibility of residential development around the Tamiami Airport with airport operations, it is also worthy of note that the FLUM provides a buffer of "industrial and office" designated lands between the airport and the lands in the area designated for residential use.
Because the Department and Objectors have failed to prove by a preponderance of the evidence that the FLUM, when considered in its entirety, does not "reflect" the collective goals, objectives and policies of the 1990 CDMP as a result of the adoption of Ordinance No. 90-28, the Administration Commission should reject their contention that the County has amended its comprehensive plan in a manner that is not "in compliance" with the requirements of Rule 9J-5.005(5)(b), Florida Administrative Code.
Data and Analysis
The Department and Objectors further argue that "Amendments" 39, 40 and 47 are not based on the data and analysis required by Section 163.3177(6)(a), Florida Statutes, as well as Rule 9J-5.006(2), Florida Administrative Code, which implements the requirements of this statutory provision. It is their position that, "when a local government is specifically amending its plan for purposes of changing the land use designation on a particular parcel of land as the County did in the case of "Amendments" 39, 40 and 47," such an amendment must be supported by "site-specific" information concerning the particular parcel which is the subject of the amendment.
Section 163.3177(6)(a), Florida Statutes, provides in pertinent part as follows:
In addition to the requirements of subsec- tions (1)-(5), the comprehensive plan shall include the following elements:
A future land use plan element designating proposed future general distribution, loca- tion, and extent of the uses for 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.
Similarly, Rule 9J-5.006(2), Florida Administrative Code, requires that the future land use element of a local government's comprehensive plan "be based" upon "[a]n analysis of the availability of facilities and services to
serve existing land uses . . and land for which development orders have been issued," "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use," "[a]n analysis of the amount of land needed to accommodate projected population," "[a]n analysis of the need for redevelopment," and "[a]n analysis of the proposed development and redevelopment of flood prone areas."
The provisions of Section 163.3177(6)(a), Florida Statutes, and therefore those of Rule 9J-5.006(2), Florida Administrative Code, as well, must be read in pari materia with the provisions of Sections 163.3164(2) and 163.3171(2), Florida Statutes, in addition to 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 county is authorized to exercise authority pursuant to Chapter 163, Part II, Florida Statutes, is described in Section 163.3171(2), Florida Statutes, as follows:
A county shall exercise authority under this act for the total unincorporated area under its jurisdiction or in such unincorporated areas as are not included in any joint agree- ment . . . In the case of chartered counties, the county may exercise such authority over municipalities or districts within its boun- daries as is provided for in its charter.
Accordingly, in the case of a chartered county, such as Dade County, which is given by its charter land use planning authority over all of the land in the county, the "area" which must be addressed in the "surveys, studies and data" required by Section 163.3177(6)(a), Florida Statutes, is the entire county. Therefore, if the "surveys, studies and data," as well as the "analysis," upon which such a county's future land use element is based relate to the county as a whole, the "surveys, studies and data" requirements of Section 163.3177(6)(a), Florida Statutes, and the "analysis" requirements of Rule 9J-5.006(2), Florida Administrative Code, are met.
Neither Section 163.3177(6)(a), Florida Statutes, nor Rule 9J- 5.006(2), Florida Administrative Code, require that a local government, before making land use designations in its comprehensive plan, examine and analyze "surveys, studies and data" regarding particular parcels of land, neighborhoods or regions within its jurisdictional boundaries. The information upon which the local government relies need not be that specific. To satisfy the "surveys, studies and data" requirements of Section 163.3177(6)(a), Florida Statutes, and the "analysis" requirements of Rule 9J-5.006(2), Florida Administrative Code, 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. See Sunshine Ranches Homeowner's Association, Inc. v. Broward County, 12 FALR 3545, 3557 (Fla. Department of Community Affairs 1990), aff'd, 16 FLW D2422 (Fla. 1st DCA September 16, 1991).
There is nothing in these statutory and rule provisions, or in any other provision of the Act or Chapter 9J-5, Florida Administrative Code, to suggest that any more detailed, site-specific information must be examined and analyzed in the case of a plan amendment which changes the land use designation of a particular parcel of land. 51/ Indeed, neither Section 163.3177(6)(a), Florida Statutes, nor Rule 9J-5.006(2), Florida Administrative Code, specifically mention "plan amendments." They merely refer to the data and analysis upon which the future land use element of a local government's comprehensive plan must be based.
Accordingly, a plan amendment is inconsistent with the data and analysis requirements of Section 163.3177(6)(a), Florida Statutes, and Rule 9J- 5.006(2), Florida Administrative Code, only if, as a result of the amendment, the future land use element of the amended comprehensive plan is not based upon the general information required by these provisions.
In accordance with Section 163.3177(8), Florida Statutes, the general information upon which a comprehensive plan's 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. 52/ See Environmental Coalition of Florida, Inc. v. Broward County, 16 FLW D2422, 2424 (Fla. 1st DCA September 16, 1991).
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, a requirement that is reiterated in Rule 9J-5.005(2), Florida Administrative Code. See Environmental Coalition of Florida, Inc. v. Broward County, 16 FLW at 2424.
As required by Section 163.3177(6)(a), Florida Statutes, the 1990 CDMP contains a future land use element that, among other things, designates the "proposed future general distribution, location, and extent of the uses" of all land in the County, including Wellenhofer's property, the Application 40 Property and the Application 47 property. These land use designations are based upon data and analysis meeting the requirements of the statutory and rule provisions mentioned above. Such data and analysis are found in the LUSC, as updated and supplemented by the PR Report, documents which were prepared by the County's Planning Department, considered by the County Commission and submitted to the Department for its review. 53/
It is true that, in addition to these materials, the County Commission was also presented with, and therefore considered as well, a study of housing demand in the West Kendall area prepared by Strategy Research Corporation, Inc., which, unlike the Planning Department's analysis, contained projections that were not the product of a professionally accepted methodology. That such was the situation, however, does not warrant a finding of noncompliance in the instant case inasmuch as the County Commission did not adopt the SRC study as part of the CDMP, 54/ nor did it take any formal action to reject the Planning Department's data and analysis to the extent that it conflicted with the SRC study or in any other respect. Where a comprehensive plan or amended comprehensive plan is supported by data and analysis meeting the requirements of the Act and Chapter 9J-5, Florida Administrative Code, the mere fact that the local governing body, at the behest of a member of the public, examined other conflicting data and analysis not meeting these requirements is not a reason to find that the plan or amended plan is not "in compliance."
Of the data and analysis requirements of the Act and Chapter 9J-5, Florida Administrative Code, the one that has generated perhaps the most controversy in the instant case is the requirement set forth in Section 163.3177(6)(a), Florida Statues, and essentially reiterated in Rule 9J- 5.006(2)(c), Florida Administrative Code, that the future land use element "be based upon" an analysis of the amount of land needed to accommodate the projected population of the area, particularly as it applies to residential land. The Planning Department's PR report contains such an analysis. The 1990 CDMP's future land use element designates enough land countywide for residential
use to meet the need projected by the Planning Department in the PR Report. Accordingly, it may be said that it is "based upon" the Planning Department's analysis.
The Department and Objectors do not dispute that the Planning Department's need analysis is professionally accepted and otherwise consistent with the requirements of the Act and Chapter 9J-5, Florida Administrative Code. Rather, they complain that, for the planning period, the County has designated significantly more land for residential use than the Planning Department's analysis indicates will be necessary. While the 1990 CDMP may have significantly more residentially designated land countywide than will be needed according to the Planning Department's analysis, it has not been established that this "oversupply" is the consequence of the 1990 Plan Amendment. No showing has been made that the changes made to the FLUM by the 1990 Plan Amendment, when considered together, resulted in any appreciable increase in the countywide supply of land designated for residential use. Because it has not been shown that this "oversupply" situation was caused or exacerbated by the 1990 Plan Amendment, its existence does not provide a basis upon which to find the plan amendment not "in compliance." Having failed to challenge the 1988 CDMP on the basis of this "oversupply," the Department and Objectors are estopped from raising this issue in the instant plan amendment case, absent a showing that the 1990 Plan Amendment produced or increased the "oversupply."
In any event, under the Department's own policy, the existence of an "oversupply" of residential land does not necessarily mean that a comprehensive plan is not "in compliance." In its Technical Memorandum (Volume IV, Number 4), which it published "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements," the Department states that "[a]ny plan in which the amount of land designated to receive development totals more than 125 percent of the amount needed to accommodate projected need will be closely scrutinized by DCA." Because of its strong anti-sprawl provisions, the 1990 CDMP withstands such close scrutiny.
Rule 9J-5.006(3)(b)3 and 7., Florida Administrative Code
Rule 9J-5.006(3)(b)3. and 7., Florida Administrative Code, provide as follows:
The [future land use] element shall contain one or more specific objectives for each goal statement which address the requirements of Paragraph 163.3177(6)(a), Florida Statutes, and which:
* * *
3. Encourage the elimination or reduction of uses inconsistent with the community's charac- ter and future land uses;
* * *
7. Discourage the proliferation of urban sprawl.
The 1990 CDMP contains such provisions. Accordingly, to the extent that the Department and Objectors allege that the 1990 Plan Amendment has rendered the CDMP inconsistent with the requirements of Rule 9J-5.006(3)(b)3. and 7., Florida Administrative Code, their allegation is without merit.
Rule 9J-5.006(3)(c)2., Florida Administrative Code
Rule 9J-5.006(3)(c)2., Florida Administrative Code, provides as follows:
The [future land use] element shall contain one or more policies for each objective which address implementation activities for the:
* * * Provision for compatibility of adjacent land uses.
The 1990 CDMP contains such provisions. Accordingly, to the extent that the Department and Objectors allege that the 1990 Plan Amendment has rendered the CDMP inconsistent with the requirements of Rule 9J-5.006(3)(c)2., Florida Administrative Code, their allegation is without merit.
Rule 9J-5.011(2)(b)3., Florida Administrative Code
Rule 9J-5.011(2)(b)3., Florida Administrative Code, provides as follows:
(2) Requirements for Sanitary Sewer, Solid Waste Drainage, Potable Water, and Natural Groundwater Aquifer Recharge Goals, Objectives and Policies.
* * *
(b) The element shall contain one or more specific objectives for each goal statement which address the requirements of Paragraph 163.3177(6)(c), Florida Statutes, and which:
* * *
3. Address maximizing the use of existing facilities and discouraging urban sprawl.
The 1990 CDMP contains such provisions. Accordingly, to the extent that the Department and Objectors allege that the 1990 Plan Amendment has rendered the CDMP inconsistent with the requirements of Rule 9J-5.011(2)(b)3., Florida Administrative Code, their allegation is without merit.
State and Regional Plans
The Department and Objectors contend that a finding of noncompliance should be made in the instant case because "Amendments" 39, 40 and 47 are each inconsistent with the State and Regional Plans in general and with certain of the provisions of the State and Regional Plans in particular. In making such an argument, the Department and Objectors demonstrate a misunderstanding of the requirements of the Act, specifically those addressed in Section 163.3177(10)(a), Florida Statutes. 55/
By its express terms, Section 163.3177(10)(a), Florida Statutes, refers to "local comprehensive plans," not plan amendments. It mandates only that a local government's comprehensive plan as a whole must not be in conflict with, and, in addition, must further, the State Plan as a whole and the appropriate regional plan as a whole. To require that each future land use designation or other individual component of a local plan not only not conflict with, but also further, each and every individual provision of the both the
State Plan and the appropriate regional plan would not only be contrary to the plain meaning of Section 163.3177(10)(a), Florida Statutes, it would lead to an absurd situation, certainly unintended by the Legislature, where no local plan could possibly meet the requirements of the Act. 56/ This construction of the statute therefore must be rejected. See Winter v. Playa del Sol, Inc., 353 So.2d 598, 599 (Fla. 4th DCA 1977).
Reading the provisions of Section 163.3177(10)(a), Florida Statutes, together with those of Section 163.3184, Florida Statutes, it is apparent that, in the case of a local plan amendment, a finding of noncompliance based upon an inconsistency with the State Plan or appropriate regional plan may be made only if it is shown that the plan amendment has amended the local plan in such a manner as to render the local plan, when viewed in its entirety, inconsistent with the State Plan as a whole or the appropriate regional plan as a whole. The Department and Objectors have failed to meet their burden of demonstrating that any of the changes made to the CDMP through the adoption of Ordinance No. 90-28, including those resulting from the approval of Applications 39, 40 and 47, had such an effect. The 1990 CDMP is not in conflict with either the State Plan as a whole or the Regional Plan as a whole as a result of these changes. Moreover, the 1990 CDMP takes action in the direction of realizing the collective goals and policies of the State Plan and Regional Plan, as well as those specific goals and policies referenced by the Department and Objectors in their pleadings. 57/ While the County may not have gone as far as the Department and Objectors would have liked in furthering these specific state and regional goals and policies, 58/ its failure to have done so was a matter within its sound discretion and is not a reason to find the CDMP, as amended, not "in compliance."
Chapter 333, Florida Statutes
The Department and Objectors advance the additional argument that "'Amendment' 39 violates the legislative intent and purpose of not only Chapter 163, Part II, F.S., but also Chapter 333, F.S., regarding airport zoning and land use." In making this argument, they rely on amendments made to Chapter 333, Florida Statutes, by Chapter 90-136, Laws of Florida, which did not become effective until after the adoption of Ordinance No. 90-28. Such reliance is misplaced.
A finding of noncompliance may not be based upon an inconsistency with a statutory provision that was not in effect at the time of the adoption of the plan or plan amendment being challenged. Cf. J.S.M. v. Department of Health and Rehabilitative Services, 571 So.2d 581, 582 (Fla. 4th DCA 1990)(child abuse may be found only if the act is prohibited by the statutes in effect at the time of the act's commission, regardless of whether the statutes are subsequently amended to prohibit the type of conduct in which the alleged perpetrator engaged). Furthermore, the provisions of Chapter 333, Florida Statutes, are not among the statutory provisions specifically mentioned in Section 163.3184(1)(b), Florida Statutes, as having to be met in order for a plan or plan amendment to be "in compliance" for purposes of administrative review. It is a well established rule of statutory construction that the express mention of one thing implies the exclusion of all others. See PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988); Thayer v. State, 335 So.2d 815, 817 (Fla. 1976);
In re Ratliff's Estate, 188 So. 128, 133 (Fla. 1939); Williams v. State, 374 So.2d 1086, 1087 (Fla. 2d DCA 1979); Devin v. City of Hollywood, 351 So.2d 1022, 1025 (Fla. 4th DCA 1976). Examining the language of Section 163.3184(1)(b), Florida Statutes, with this rule in mind, it appears that the Legislature intended to limit the statutory requirements which have to be
satisfied before a plan or plan amendment may be found "in compliance" to those statutory requirements expressly mentioned in Section 163.3184(1)(b), Florida Statutes. To conclude otherwise and hold that the provisions of Chapter 333, Florida Statutes, must also be met would require the Administration Commission to add language to Section 163.3184(1)(b), Florida Statutes, that was by all appearances intentionally omitted by the Legislature. This it may not do. See Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209, 215 (Fla. 1974).
Accordingly, to the extent that the Department and Objectors argue that a finding of noncompliance should be made in the instant case based upon the ground that "Amendment" 39 is inconsistent with the requirements of Chapter 333, Florida Statutes, as amended by Chapter 90-136, Laws of Florida, the Administration Commission should reject such an argument.
Stipulated Settlement Agreement
To the extent that the Department and Objectors further argue that a finding of noncompliance should be made in the instant case based upon the additional ground that "Amendments" 40 and 47 are inconsistent with the provisions of the stipulated settlement agreement that the Department and County entered into to resolve their dispute concerning the 1988 CDMP, that further argument should be rejected as well.
There is nothing in the stipulated settlement agreement that prohibits the County from amending the FLUM as it did in "Amendments" 40 and 47. Moreover, even if the stipulated settlement agreement contained such a prohibition, it would be of no consequence in the context of the instant case given the Department's and Objector's failure to show that, as a result of "Amendments" 40 and 47, the 1990 CDMP is inconsistent with the requirements of Sections 163.3177, 163.3178 or 163.3191, Florida Statutes, Chapter 9J-5, Florida Administrative Code, the State Plan or the Regional Plan. As noted above, it is against these requirements, and no others, including those imposed by agreements between the local government and the Department, that a local plan's or plan amendment's "compliance," as that term is used in Section 163.3184, Florida Statutes, must be measured.
Ultimate Compliance Determination
Because the Department and Objectors have not shown that the 1990 Plan Amendment has rendered the CDMP inconsistent with any of these requirements, said plan amendment should be found "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes.
Wellenhofer's Request for Attorney's Fees and Costs
Section 163.3184(12), Florida Statutes, provides as follows: The signature of an attorney or party consti-
tutes a certificate that he has read the plead-
ing, motion, or other paper and that, to the best of his knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay, or for economic advantage, competitive reasons, or frivolous purposes or needless increase in
the cost of litigation. If a pleading, motion,
or other paper is signed in violation of these requirements, the hearing officer, upon motion or his own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties
the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
The evidence does not reveal that the Department, in pursuing its challenge to "Amendment" 39 in the instant proceeding, has been motivated by anything other than a sincere desire to fulfill what it perceives as its statutory responsibility. In the absence of proof establishing an "improper purpose" on the part of the Department, the Hearing Officer is without authority, under Section 163.3184(12), Florida Statutes, to impose sanctions against the Department for pursuing such a challenge. Accordingly, Wellenhofer's request that the Hearing Officer impose such sanctions, in the form of an award of attorney's fees and costs, is denied. 59/
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Administration Commission enter a final order in Case No. 90-3599GM finding that Metropolitan Dade County's 1990 Plan Amendment is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes.
RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of December, 1991.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1991.
ENDNOTES
1/ Georgia Neill Watts joined with the Objectors in seeking to intervene in this matter and she too was granted intervenor status by the Hearing Officer. At the commencement of the final hearing, however, through her attorney, she announced that she was withdrawing from the case due to illness.
2/ On December 5, 1990, however, Alajuela, N.V., filed a motion for leave to withdraw as an intervenor in this matter. By order issued December 6, 1990, the motion was granted.
3/ The Department and the Objectors made a joint evidentiary presentation, as did Metro-Dade, Wellenhofer and the Suchmans.
4/ The provision granting the people of Dade County home rule power is found in Article VIII, Section 6(e) of the 1968 Florida Constitution.
5/ This included Everglades National Park and the County's conservation areas, which are located in the western and southern portions of the County.
6/ For planning purposes, the County is divided into study areas and further divided into 31 minor statistical areas.
7/ While these countywide and subarea projections were made in accordance with professionally accepted methodologies, that fact does not guarantee that they will prove to be accurate.
8/ The projected depletion year for the supply of single-family housing units alone was the year 2004. The projected depletion year for the supply of multifamily housing units alone was the year 2014.
9/ The Planning Department, based upon the actual development experience in the County, adheres to the rule-of-thumb that under no circumstances should there be less that a five year supply of land available to accommodate growth.
10/ The supply of land actually available for development may also be affected by the actions of the County's 26 municipalities, which have the authority under Section 5.02 of the Home Rule Charter to impose "higher standards" on the use of land within their jurisdictional boundaries.
11/ This Urban Infill Area was to emcompass only a portion of the area inside the UDB.
12/ In this respect, residential uses are unlike other uses such as office, industrial, commercial and agricultural. Office, industrial and commercial activities around airports, in fact, are desirable because of their positive impact on the area's economic development.
13/ This designation is now referred to, following the adoption of Ordinance No. 90-28, as "low density residential communities."
14/ With the exception of "Horse Country," no other lands designated for "agriculture" use lie inside the UDB, as presently drawn.
15/ This designation is now referred to, following the adoption of Ordinance No. 90-28, as "estate density residential communities."
16/ Because of such factors as climate, soil and topography, the Redlands is highly suitable for agricultural use. A number of tropical fruits unique to this part of the continental United States are grown here.
17/ According to the LUSC, the F.E.C. Railroad right-of-way which runs parallel to U.S. 1 will be used to extend the Metrorail to Homestead.
18/ The projected demand upon which this forecast was based was 1,262 total units annually between 1989 and 1995, 1,640 total units annually between 1995 and the year 2000, 1,567 total units annually between the year 2000 and the year 2005, and 1,393 total units annually between the year 2005 and the year 2010.
19/ At the time of the final hearing in this case, a 12 inch water main was located at the southwest corner of the Application 47 property, and a sewer main was located a quarter of a mile to the south of the property.
20/ The Agricultural Land Use Plan (Ag Plan) to which the Planning Department referred was not adopted in its entirety by the Board of County Commissioners. The Board adopted "as policy subject to further implementation" only the "Final Proposals" of the Ag Plan. The Ordinance adopting these "Final Proposals" provided that these "Final Proposals" were "ancillary to but not a part of the comprehensive master plan of Metropolitan Dade County."
21/ Much of the public discussion and debate on Application 47, including the applicant's presentation, took place on this following day.
22/ Motes submitted no written objections.
23/ It does not own any real property in Dade County. 24/ Rist submitted no written objections.
25/ In reaching these conclusions, SRC relied upon the Planning Department's estimate of residential capacity in MSA 6.2.
26/ The parcels of land that were the subject of these applications were all inside the 1988 UDB.
27/ This is a more reasonable assumption.
28/ As of the date of the final hearing in this matter, such regulations had yet to be adopted.
29/ Most of the vacant land in the County is not ideally suited for agricultural use. There has been no showing, however, that the amount of land designated "agriculture" on the FLUM is insufficient to maintain the viability of the agricultural industry in the County.
30/ Notwithstanding this provision, there has not been, on a countywide basis, significant residential development on lands designated for "agriculture" use.
31/ The PR Report reflects that, at the time of the preparation of the report, the Application 40 property was zoned GU and the Application 47 property was zoned AU. There is no indication in the record that the zoning of these properties has since been changed.
32/ The Department did not maintain any record of such mailing, however. 33/ Agriculture is a particularly significant component of the South Dade
economy. It is less significant, but significant nonetheless, insofar as the
Dade County economy as a whole is concerned.
34/ Many farmers in Dade County, particularly those who farm land inside or near the UDB, lease rather than own the land they farm.
35/ Farmers are less likely to make long term investments to enhance the agricultural productivity of their land if they believe that the land they are farming will be urbanized in the not too distant future.
36/ These pressures constitute what at least one commentator refers to as the "shadow effect" that new residential development has on nearby agricultural land use.
37/ The preservation of agriculture as a viable economic force contributes to the diversity, and therefore the strength, of the region's economy.
38/ A recent study, that was prepared after the final adoption hearing and therefore was unavailable to the County Commission prior to taking action on the applications at issue in the instant case, reflects that since 1978 the amount of farmland in Dade County has declined.
39/ This is consistent with Section 187.101(3), Florida Statutes, which similarly provides that the state comprehensive plan "shall be construed and applied as a whole, and no specific goal or policy in the plan shall be construed or applied in isolation from the other goals and policies in the plan."
40/ 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).
41/ See Florida League of Cities v. Administration Commission, 16 FLW D2269, 2274 (Fla. 1st DCA August 27, 1991)(policy followed by Administration Commission in imposing sanctions pursuant to Section 163.3184(11), Florida Statutes, was a "substantial disincentive to noncompliance . . . analogous to a situation involving a criminal defendant").
42/ This is the same Mr. Schmertman who was dispatched by the Department to the final adoption hearing in the instant case.
43/ The standing of Wellenhofer and the Suchmans to intervene in this matter has not been contested and therefore is an issue that is unnecessary to address. See Home Builders and Contractors Association of Brevard County v. Department of Community Affairs, 16 FLW D2087, 2088 (Fla. 1st DCA August 8, 1991).
44/ Motes, Rohde and Rist submitted objections on behalf of their respective organizations and their members. Inasmuch as they each were members of the organizations they were representing, the objections they submitted were sufficient to preserve their right to intervene in the instant proceeding in their individual capacities.
45/ Section 163.3164(16), Florida Statutes, provides that, as used in the Act, "'person' means an individual, corporation, governmental agency, business trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any legal entity."
46/ This was a compliance proceeding initiated pursuant to Section 163.3184(9), Florida Statutes. In such a proceeding the Hearing Officer's recommended order is initially transmitted to the Department of Community Affairs, which issues the final order in the matter if it determines that the plan or plan amendment in question is "in compliance."
47/ Rule 9J-5.005(5)(a), Florida Administrative Code, echoes the requirement that "[t]he required and any optional elements [of the comprehensive plan] shall be consistent with each other."
48/ A "development order" is defined in Section 163.3164(6), Florida Statutes, as "any order granting, denying, or granting with conditions an application for a development permit."
49/ Another group of provisions cited by the Department and Objectors deserving of specific mention are those which prescribe standards to be followed in evaluating applications to amend the CDMP. Even if it were assumed that the Board of County Commissioners had failed to follow these standards in approving Applications 39, 40 and 47, this would not result in a finding of internal inconsistency inasmuch as there is no irreconcilable conflict between that portion of the 1990 CDMP that was revised as a result of the approval of these applications and that portion of the plan which sets forth these standards.
50/ Section 163.3177(6)(a), Florida Statutes, contemplates that the land use designations shown on a future land use map "be supplemented by goals, policies and measurable objectives."
51/ Under the statutory framework, it is when a development permit is sought for that parcel, not during the planning process, that such detailed, site- specific information must be considered and weighed.
52/ To the extent that Rule 9J-5.005(2)(c), Florida Administrative Code, provides otherwise it is inconsistent with Section 163.3177(10)(e), Florida Statutes.
53/ Although not required to do so, the County Commission also considered data and analysis concerning the character of the specific parcels of land that were the subject of the various applications to amend the FLUM submitted during the 1989-1990 amendment cycle. Contrary to the assertions made by the Department and Objectors, such data and analysis are not unsupportive of the revised land use designations they are challenging in this proceeding.
54/ Rule 9J-5.005(1)(c), Florida Administrative Code, allows, but does not mandate, local governments to adopt "support documents" as part of its comprehensive plan. The only data and analysis adopted as part of the 1990 CDMP were the population projections made by the Planning Department.
55/ These requirements are reiterated in Rule 9J-5.021(1), Florida Administrative Code.
56/ Under such an interpretation of Section 163.3177(10)(a), Florida Statutes, for instance, a local plan could be found not "in compliance" based upon a single non-agricultural land use designation which does not "further" the "regional and state policies seeking to preserve and promote agricultural lands and activities" to which the Department and Objectors refer in their Proposed Recommended Order, regardless of the location of the parcel of land so designated and that the plan contains other provisions designed to further these particular state and regional policies.
57/ Among the provisions of the 1990 CDMP that further these specifically enumerated state and regional goals and policies are those with which the Department and Objectors claim "Amendments" 39, 40 and 47 conflict.
58/ For example, although the County designated a substantial amount of land for "agriculture" use in furtherance of the "regional and state policies seeking to preserve and promote agricultural land and activities," the County could have done more to further these regional and state policies, albeit perhaps at the expense of competing regional and state goals and policies, by designating additional parcels of land, including those that were the subject of Applications 39, 40 and 47, for such use.
59/ The Hearing Officer's denial of Wellenhofer's request for attorney's fees and costs pursuant to Section 163.3184(12), Florida Statutes, constitutes final agency action. Any party who is adversely affected by this ruling is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
60/ The Hearing Officer assumes that the term "agricultural land," as used in this proposed finding, means land designated "agriculture" on the FLUM. The Application 40 and Application 47 properties no longer bear such a designation.
61/ With respect to Proposed Finding of Fact 48, it should be noted that, although the hypothetical raised in this proposed finding does not contemplate such a situation, there may be sufficient "facilities capacity" to accommodate development both at the fringe and in the core of an urbanized area.
62/ The Hearing Officer assumes that the term "agricultural land," as used in Proposed Findings of Fact 60 and 61, means land designated "agriculture" on the FLUM.
63/ With respect to Proposed Finding of Fact 70, it should be noted that the 1990 CDMP discourages the "liberal conversion of agricultural land [i.e., land designated 'agriculture'] to residential uses."
64/ There is no requirement that the County determine need on other than a countywide basis.
65/ These other changes made during the 1989-1990 amendment cycle have not been challenged by neither the Department nor the Objectors. Accordingly, while their impact, along with the impact of all other changes to the CDMP, must be taken into account, there is no need to "compare" them to "Amendments" 40 and
47. Furthermore, with respect to the fourth sentence of this proposed finding, it should be noted that while the amount of land in the County suitable for agriculture is not unlimited, the greater weight of the evidence does not establish that the amount of land designated for "agriculture" use on the FLUM is less than is needed to maintain the viability of the County's agricultural industry during the planning period.
66/ The Hearing Officer's calculations, however, show that there would be a slightly smaller decrease than represented in this proposed finding.
67/ Moreover, any proposed findings of fact based upon such testimony would be rejected as well because the witnesses' analyses and conclusions were not presented to, nor considered by, the County Commission.
68/ With respect to Proposed Finding of Fact 352, it should be noted that the 1990 CDMP contains provisions other than the "concurrency requirement" that serve to discourage urban sprawl.
69/ With respect to Proposed Finding of Fact 418, it should be noted that the 1990 CDMP contemplates that the "eastern 80 acres" and the "western 80 acres" of the Application 47 property will experience similar, not dissimilar, development, as reflected by the fact that they both bear the same land use designation.
70/ It should be noted that the Application 40 property includes 130 acres of land that is still designated "agriculture" on the FLUM.
71/ There has been no showing in the instant case that the lands that remain designated for "agriculture" use are inadequate to sustain the agricultural industry as a viable economic force in the County.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3599GM
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:
The Department's and Objectors' Proposed Findings of Fact
Rejected because it is more in the nature of a statement of law, albeit a correct one, than a finding of fact.
First sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in the Hearing Officer's Findings of Fact; Second sentence: Rejected because it is more in the nature of a statement of law, albeit a correct one, than a finding of fact.
(a)-(f) and (h)-(k): Accepted and incorporated in substance; (g): Rejected because it is irrelevant and immaterial given Watts' withdrawal from the instant case.
4-11. Accepted and incorporated in substance.
12. First sentence: To the extent that this proposed finding states that only a portion, and not the entirety, of the Application 47 property was redesignated "estate density residential," it has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance; Second sentence: Accepted and incorporated in substance.
13-21. Accepted and incorporated in substance.
To the extent that this proposed finding is consistent with the provision in paragraph 6 of the CDMP's Statement of Legislative Intent that "[w]hile . . . the land use element [shall] be afforded high priority, other elements must be taken into consideration," it has been accepted and incorporated in substance. To the extent that it is inconsistent with this provision, it has been rejected because it not supported by the greater weight of the evidence.
To the extent that this proposed finding suggests that the FLUM reflects the CDMP's goals, objectives and policies, it has been accepted and incorporated in substance. To the extent that it suggests that the CDMP does not contemplate that its goals, objectives and policies will be implemented and realized other than through the FLUM, such as by the adoption and enforcement of land development regulations, it has been rejected because it is not supported by the greater weight of the evidence.
Rejected because it is not supported by the greater weight of the evidence.
Rejected because it is more in the nature of legal argument than a finding of fact.
26-34. Accepted and incorporated in substance.
First sentence: Rejected because it is not supported by the greater weight of the evidence. A need to expand the UDB may be demonstrated prior to the depletion of land available for development inside the UDB. Second sentence: Accepted and incorporated in substance. 60/
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
37-42. Accepted and incorporated in substance.
43. To the extent that it suggests that there is no activity center or "core" in West Kendall, this proposed finding has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
44-46. Accepted and incorporated in substance.
47-48. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 61/
49-50. Accepted and incorporated in substance.
To the extent that this proposed finding suggests that the 1988 CDMP, as amended by Ordinance No. 90-37, was found "in compliance," it has been accepted and incorporated in substance. To the extent that it suggests that, unlike the 1988 CDMP, as amended, the 1990 CDMP is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, it has been rejected because it is more in the nature of a conclusion of law than a finding of fact.
Rejected because it is more in the nature of legal argument than a finding of fact.
To the extent that this proposed finding suggests that the "strategies" referenced therein must be given additional time "to work," as intended by the CDMP, this proposed finding has been accepted and incorporated in substance. To the extent that it suggests that these "strategies" have been abandoned and are no longer a part of the CDMP, it has been rejected because it is not supported by the greater weight of the evidence.
To the extent that this proposed finding suggests that the CDMP provides that there shall be "a process for periodic amendment to the Land Use Plan map, consistent with adopted Goals, Objectives and Policies of this Plan, which will provide that the Land Use Map accommodates urban expansion at projected countywide rates," it has been accepted and incorporated in substance. To the extent that it suggests that an "oversupply" of land for development, i.e. the designation of more land for urban uses than is projected to be needed during the planning period, nullifies the provisions of the CDMP relating to the "protection of environmental resources, agricultural production and the efficient provision of . . . public services," this proposed finding has been rejected because it is not supported by the greater weight of the evidence.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
57-61. Accepted and incorporated in substance. 62/
Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that this proposed finding states that "[i]nappropriate investor speculation in agricultural areas is a particular problem in Dade County," it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it indicates that there is a substantial amount of farmland in Dade County that is "leased, not owned, by those doing the farming," it has been accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
68-70. Accepted and incorporated in substance. 63/
71-72. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Fourth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Fourth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
76-77. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Last sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Otherwise, it has been accepted and incorporated in substance.
To the extent that this proposed finding suggests that residential development near an airport is necessarily incompatible with the operations of that airport, regardless of the particular circumstances present, including the nature and extent of those operations and the noise they generate, it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it suggests that such incompatibility may exist depending on the particular circumstances present, and that incompatibility is generally not a problem where the lands surrounding an airport are used for office, industrial, commercial or agricultural activities, this finding has been accepted and incorporated in substance.
81-83. Accepted and incorporated in substance.
84-85. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
88-91. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
94-95. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that this proposed finding reflects that the methodologies utilized by the Planning Department to project population are professionally accepted, this finding has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
99-107. Accepted and incorporated in substance.
108-112. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
113-114. Rejected because they are more in the nature of statements of law than findings of fact.
115. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
116-117. Accepted and incorporated in substance.
118-121. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
122. First sentence: Rejected because it is not supported by the greater weight of the evidence; Second sentence: Accepted and incorporated in substance.
123-127. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
128-130. Accepted and incorporated in substance.
131-132. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual finding made by the Hearing Officer.
135-149. Accepted and incorporated in substance.
150. Rejected because it would add only unnecessary detail to the factual finding made by the Hearing Officer.
151-152. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by the greater weight of the evidence.
Accepted and incorporated in substance.
155-156. To the extent that these proposed findings purport to describe surrounding land uses and development at the time of the submission of Application 40, they have been accepted and incorporated in substance. To the extent that they purport to describe surrounding land uses and development at the time of the final hearing, they have been rejected because they are not supported by the greater weight of the evidence.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
160-172. Accepted and incorporated in substance.
173. Rejected because it is not supported by the greater weight of the evidence. Ordinance No. 90-28 was adopted on March 27, not March 26, 1990. 174-176. Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of legal argument than a finding of fact.
179-184. Accepted and incorporated in substance.
Rejected because it is not supported by the greater weight of the evidence.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding states that the adoption of these "amendments" occurred on March 26, 1990, and not March 27, 1990, it has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
188-191. Accepted and incorporated in substance.
To the extent that this proposed finding asserts that the Objectors "satisfied their standing requirements," it has been rejected because it is more in the nature of a conclusion of law than a finding of fact. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
194-197. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
198. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
199-202. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by the greater weight of the evidence; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
207-209. Accepted and incorporated in substance.
210-211. Rejected because they are summaries of testimony rather than findings of fact based upon that or other testimony.
212-214. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that Jude objected to "Amendment" 47 at the final adoption hearing, this proposed finding has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Rejected because it is more in the nature of argument than a finding of fact.
217-221. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as unpersuasive argument for the reasons expressed in those Conclusions of Law of this Recommended Order appearing under the subheading "Data and Analysis."
Accepted and incorporated in substance.
Rejected for the reasons expressed in those Conclusions of Law of this Recommended Order appearing under the subheading "Data and Analysis."
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
226-232. Accepted and incorporated in substance.
233. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
234-235. Accepted and incorporated in substance.
236-240. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is a summary of testimony rather than a finding of fact based upon that or other testimony.
243-244. Accepted and incorporated in substance.
245. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
246-251. Accepted and incorporated in substance.
252. Rejected because it is not supported by the greater weight of the evidence, as a reading of page 5 of the SRC Report reveals.
253-257. Accepted and incorporated in substance.
258. Rejected because it is a summary of, and commentary on, testimony rather than a finding of fact based upon that or other testimony.
259-266. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
267. Accepted and incorporated in substance.
268-269. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
270. Rejected because it is not supported by the greater weight of the evidence.
271-275. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
276-277. Rejected because they are more in the nature of legal arguments than findings of fact. 64/
278-279. Rejected because they are based upon the premise, not supported by the greater weight of the evidence, that the County Commission adopted the data and analysis contained in the SRC Report and relied on it, instead of the Planning Department's conflicting projections, in approving Application 40.
Rejected because it is more in the nature of legal argument than a finding of fact.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of legal argument than a finding of fact.
283-284. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: To the extent that this finding indicates that the Planning Department's projections for MSA 6.2 set forth in the LUSC (as opposed to those contained in the more recent PR Report) indicate the demand for housing in that subarea would be 1,739 total units annually between 1990 and 1995, this finding has been accepted and incorporated in substance. To the extent that it purports to reflect the projections regarding MSA 6.2 contained in the PR Report, it has been rejected because it is not supported by the greater weight of the evidence; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is more in the nature of legal argument than a finding of fact. Otherwise, it has been accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding is inconsistent with Findings of Fact 206-211 of this Recommended Order, it has been rejected because it is not supported by the greater weight of the evidence.
289-291. Rejected because they constitute summaries of, and commentaries on, testimony rather than findings of fact based upon that or other testimony.
Accepted and incorporated in substance.
First and fourth sentences: Rejected because they constitute argument concerning a matter that does not have a bearing on the outcome of this case; 65/ Second and third sentences: Accepted and incorporated in substance.
To the extent that this proposed finding suggests that, under the scenario referenced, "the net result would be a decrease in capacity," it has been accepted and incorporated in substance. 66/
Rejected because it is not supported by the greater weight of the evidence.
296-306. Rejected because they constitute summaries of, and commentaries on, testimony rather than findings of fact based upon that or other testimony. 67/ 307-308. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
309-310. Rejected because they constitute summaries of, and commentaries on, testimony rather than findings of fact based upon that or other testimony.
311-322. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it constitutes a summary of, and commentary on, testimony rather than a finding of fact based upon that or other testimony.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon that or other testimony; Second sentence:
Rejected because it is more in the nature of legal argument than a finding of fact.
Rejected because it constitutes a commentary on testimony rather than a finding of fact based upon that or other testimony.
327-328. Accepted and incorporated in substance.
329-333. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
334-335. Rejected because they are based upon the erroneous premise that the adoption of "Amendment" 40 authorizes the immediate development of the Suchmans' property.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Whether "it would be more beneficial to attempt [to develop a TND] in a central location rather than at the fringe of the County's UDB" is an issue that need not be decided in order to determine whether the 1990 Plan Amendment is "in compliance." Accordingly, this proposed finding, which addresses that issue, has been rejected.
Rejected because it is not supported by the greater weight of the evidence. The Application 40 property consists of lands designated not only "low density residential communities," but "office and industrial" and "agriculture" as well.
340-343. Accepted and incorporated in substance.
Rejected because it is more in the nature of legal argument than a finding of fact.
Accepted and incorporated in substance.
All of the parcels in question in the instant case are now located inside the UDB. Therefore, whether development outside the UDB would constitute sprawl is an issue that has no bearing on the outcome of the instant case.
Accordingly, this proposed finding, which addresses that issue, has been rejected.
347-348. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of legal argument than a finding of fact.
Accepted and incorporated in substance.
351-352. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 68/
353-359. Rejected because it constitutes summaries of, and commentaries on, testimony rather than findings of fact based upon that or other testimony.
Accepted and incorporated in substance.
Rejected because it is not supported by the greater weight of the evidence.
362-363. Rejected because they are based upon the erroneous premise that the adoption of "Amendments" 40 and 47 authorizes the immediate development of the properties which were the subject of these "amendments."
Rejected for the reasons expressed in those Conclusions of Law of this Recommended Order appearing under the subheading "Data and Analysis."
Rejected because it is not supported by the greater weight of the evidence.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is more in the nature of legal argument than a finding of fact.
369-370. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
The issue of whether there will be adequate facilities and services available to serve the Suchmans' property at acceptable levels of service is one that relates to development, not planning, and thus is not ripe for consideration in the instant case. See Miller Enterprises, Inc. v. Florida Land and Water Adjudicatory Commission, 16 FLW at 1856. Accordingly, this proposed finding, which addresses that issue, has been rejected.
Rejected because it is based upon the erroneous premise that the adoption of "Amendments" 40 and 47 authorizes the immediate development of the properties which were the subject of these "amendments." The 1990 CDMP contemplates that any development that will serve to defeat the plan's "infill development" strategy will not be permitted. Accordingly, if the plan is properly implemented, the situation described in this proposed finding will not occur. 373-374. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of legal argument than a finding of fact.
Accepted and incorporated in substance.
To the extent that this proposed finding suggests that, notwithstanding the other provisions of the 1990 CDMP, the "overall effect of [the adoption of "Amendments" 40 and 47 will be] urban sprawl," it has been rejected because it is not supported by the greater weight of the evidence.
Accepted and incorporated in substance.
Rejected for the reasons expressed in those Conclusions of Law of this Recommended Order appearing under the subheading "Data and Analysis."
Rejected because it constitutes a summary of, and commentary on, testimony rather than a finding of fact based upon that or other testimony.
381-382. Accepted and incorporated in substance.
While the prior designation may have served the purposes referenced in this proposed finding, the evidence is insufficient to establish that these were its "stated" purposes. Accordingly, this proposed finding has been rejected.
Whether Wellenhofer's property is "within one-half the length of the longest runway from the Tamiami Airport" is an issue that need not be decided in order to determine if the 1990 Plan Amendment is "in compliance." While Section 333.03(2)(d), Florida Statutes, now provides that "[w]here an airport authority or other governing body operating a publicly owned, public-use airport has not conducted a noise study, residential construction should not be permitted within an area contiguous to the airport measuring one-half the length of the longest runway on either side of and the end of each runway centerline," the issue of whether residential construction on Wellenhofer's would violate this statutory provision has no bearing on the outcome of the instant case for the reasons expressed in those Conclusion of Law of this Recommended Order appearing under the subheading "Chapter 333, Florida Statutes." Accordingly, this proposed finding has been rejected.
Rejected because it is unwarranted speculation.
Accepted and incorporated in substance.
Rejected because it is not supported by the greater weight of the evidence. Moreover, even if it were supported by the greater weight of the evidence, it would have no bearing on the outcome of the instant case.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
390-391. Rejected because they are more in the nature of legal arguments than findings of fact.
392. To the extent that this proposed finding suggests that the noise of aircraft can be heard from Wellenhofer's property, it has been accepted and incorporated in substance.
393-394. Rejected because they are more in the nature of statements of law than findings of fact.
Rejected because it is more in the nature of legal argument than a finding of fact.
Rejected because it is not supported by the greater weight of the evidence.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is not supported by the greater weight of the evidence.
401-402. To the extent that these proposed findings suggest that aircraft deviate from their flight paths, it has been accepted and incorporated in substance. To the extent that they suggest that this happens often, it has been rejected because it is not supported by the greater weight of the evidence.
403. To the extent that this proposed finding suggests that residential development near an airport is necessarily incompatible with the operations of that airport, regardless of the particular circumstances present, including the nature and extent of those operations and the noise they generate, it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it suggests that such incompatibility may exist depending on the particular circumstances present, this finding has been accepted and incorporated in substance.
404. To the extent that this proposed finding suggests that the concerns referenced therein related specifically to "Amendment" 39, it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it suggests that such concerns were expressed about other "amendments," it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
405. To the extent that this proposed finding states that industrial lands surrounding airports "are an important buffer and interact with airports in a positive economic development manner," it has been accepted and incorporated in substance. To the extent that it suggests that the reduction of the "industrial land supply . . . around airports" is necessarily poor planning, regardless of the particular circumstances involved, it has been rejected because it is not supported by the greater weight of the evidence.
406-408. To the extent that these proposed findings suggest that residential development near an airport is necessarily incompatible with the operations of that airport and an impediment to airport improvement and expansion projects, regardless of the particular circumstances present, they have been rejected because they are not supported by the greater weight of the evidence. To the extent that they suggest that such incompatibility may exist depending on the particular circumstances present, these findings have been accepted and incorporated in substance.
Rejected as unwarranted speculation.
Rejected because it constitutes commentary on testimony rather than a finding of fact based on that or other testimony.
Rejected because it is based upon the erroneous premise that the adoption of "Amendment" 47 authorizes the immediate development of the property which was the subject of this "amendment."
Rejected as unpersuasive argument.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding suggests that all residential development is necessarily incompatible with all agricultural land uses, regardless of the buffers that may exist and the other particular circumstances present, it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it suggests that there may be such incompatibility, depending on the particular circumstances present, this finding has been accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding suggests that "Amendment" 40 will increase the amount of incompatible land uses in the County, it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it merely purports to describe the changes that were made on the FLUM as a result of the adoption of "Amendment" 40, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
418-420. Rejected because they would add only unnecessary detail to the factual finding made by the Hearing Officer. 69/
421. To the extent that this proposed finding suggests that all subdivision development is necessarily incompatible with all agricultural land uses, regardless of the buffers that may exist and the other particular circumstances present, it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it suggests that there may be such incompatibility, depending on the particular circumstances present, this finding has been accepted and incorporated in substance.
422. Rejected because it is more in the nature of legal argument than a finding of fact.
423-424. Accepted and incorporated in substance.
425. Rejected because it is more in the nature of legal argument than a finding of fact.
426. To the extent that this proposed finding suggests that the County's agricultural industry will not be adequately protected if residential development is permitted on the Application 40 property, this proposed finding
has been rejected because it is not supported by the greater weight of the evidence. 70/
427. First sentence: The Redlands is "an area highly suitable for agriculture," as is asserted in this proposed finding. The County, however, has redesignated only a small portion of the Redlands from "agriculture" to residential use. Accordingly, what would happen to the County's agricultural industry if the entire Redlands area was so redesignated has no bearing on the outcome of the instant case. Accordingly, this proposed finding, which addresses that issue, has been rejected; Second sentence: Rejected because it is more in the nature of legal argument than a finding of fact.
428. Rejected because it is not supported by the greater weight of the evidence.
429-430. Accepted and incorporated in substance.
To the extent that this proposed finding suggests that these CDMP policies cannot possibly be achieved if the "UDB is moved prematurely into agricultural land, with no demonstration of need," this finding has been rejected because it is not supported by the greater weight of the evidence. 71/
Rejected for the reasons expressed in those Conclusions of Law appearing under the subheading "State and Regional Plans."
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected because it is more in the nature of legal argument than a finding of fact.
To the extent that this proposed finding suggests that the relocation of any agricultural activity, regardless of amount, will necessarily result in an agricultural industry that is not a viable economic force in the County, it has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Rejected because it constitutes a summary of, and commentary on, testimony rather than a finding of fact based upon that or other testimony.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
439-509. These "ultimate findings" have been rejected for the reasons expressed in the Conclusions of Law of this Recommended Order.
The County's and Proponents' Proposed Findings of Fact 1-2. Accepted and incorporated in substance.
First sentence: Rejected because it is more in the nature of a statement of
law, albeit a correct one, than a finding of fact; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First through fourth sentences: Accepted and incorporated in substance; Remaining sentences: Rejected because they are not supported by persuasive competent substantial evidence.
Rejected because it is not supported by persuasive competent substantial evidence.
To the extent that this proposed finding suggests that the objections Motes made at the final adoption hearing did not reflect his position on the matter as a member of the RCA, it has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it constitutes argument regarding the state of the evidentiary record rather than a finding of fact based upon the evidence adduced at hearing.
Rejected because it constitutes argument regarding the state of the evidentiary record rather than a finding of fact based upon the evidence adduced at hearing.
First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: To the extent that this proposed finding suggests that the objections Rohde made at the final adoption hearing did not reflect his position on the matter as a member of the Sierra Club, it has been rejected because it is not supported by the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
To the extent that this proposed finding suggests that the League is not a "business," as that term is used in Section 163.3184(1)(a), Florida Statutes, it has been rejected because it is a conclusion of law rather than a finding of fact. To the extent that it suggests that the League is an organization whose primary activities are non-commercial in nature, it has been accepted and incorporated in substance.
Rejected because it constitutes argument regarding the state of the evidentiary record rather than a finding of fact based upon the evidence adduced at hearing.
To the extent that this proposed finding suggests that the objections Rist made at the final adoption hearing did not reflect her position on the matter as a member of the League, it has been rejected because it is not supported by the greater weight of the evidence.
15-16. Accepted and incorporated in substance.
First and second sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: To the extent that this proposed finding suggests that the objections Motes made at the final adoption hearing did not reflect his position on the matter as a member of the RCA, it has been rejected because it is not supported by the greater weight of the evidence; Fourth sentence: Accepted and incorporated in substance.
Rejected as a finding of fact because it is more appropriately included in the Preliminary Statement of this Recommended Order.
First, second and fifth sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Regardless of what his or her motives may have been, an "affected person" who submitted objections during the local government's review and adoption proceedings has standing to challenge the plan or plan amendment adopted by the local government; Fourth sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon that or other testimony.
Rejected because it constitutes a summary of, and commentary on, evidence rather than a finding of fact based upon that or other evidence.
Accepted and incorporated in substance.
22-25. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected because it constitutes argument regarding the state of the evidentiary record rather than a finding of fact based upon the evidence adduced at hearing.
Accepted and incorporated in substance.
Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Last two sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: To the extent that these proposed findings suggest that the objections Rohde made at the final adoption hearing did not reflect his position on the matter as a member of the Sierra Club, they have been rejected because they are not supported by the greater weight of the evidence. Otherwise, they have been accepted and incorporated in substance.
30-33. Accepted and incorporated in substance.
34. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
35-37. Accepted and incorporated in substance.
38. Rejected because it is more in the nature of legal argument than a finding of fact.
39-45. Accepted and incorporated in substance.
46. First, second and third sentences: Accepted and incorporated in substance; Fourth sentence: It is unclear what is meant by the term "Metro-Dade's official CDMP." Accordingly, this proposed finding has been rejected.
47-56. Accepted and incorporated in substance.
57-58. To the extent that these proposed findings suggest that the LUSC revealed that the addition of residential capacity was "necessary," they have been rejected as unpersuasive argument. Otherwise, they have been accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second and fourth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected because it is contrary to the greater weight of the evidence.
61-62. Accepted and incorporated in substance.
63. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
64-67. Accepted and incorporated in substance.
Accepted and incorporated in substance, except to the extent that it indicates that the notice of intent was published on June 13, not June 14, 1990.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it constitutes argument rather 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 factual findings made by the Hearing Officer.
73-74. Accepted and incorporated in substance.
75. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
76-77. Accepted and incorporated in substance.
78-81. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that this proposed finding suggests that the PR Report does not update and supplement the LUSC, it has been rejected because it is contrary
to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.
84-86. Accepted and incorporated in substance.
87-89. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
90-91. Accepted and incorporated in substance.
92-93. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
94-95. Accepted and incorporated in substance.
96. To the extent that this proposed finding suggests that all of the property east of the airport designated for "industrial and office" use is "currently in industrial use," it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
97-98. Accepted and incorporated in substance.
To the extent that this proposed finding suggests that there are residentially designated lands to the south of the airport that are separated from the airport by lands designated for "industrial and office" use, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Last sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected for the same reason that the Department's and Objectors' Proposed Finding of Fact 384 has been rejected.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it constitutes a summary of, and commentary on, testimony rather than a finding of fact based upon that or other testimony.
Rejected because it is not supported by persuasive competent substantial evidence.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
First, second and third sentences: Accepted and incorporated in substance; Fourth and fifth sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
115-117. Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
First sentence: To the extent that this proposed finding states that the lands in question are zoned GU, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Otherwise, it has been accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Rejected for the same reason that the Department's and Objectors' Proposed Finding of Fact 371 has been rejected.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
First and third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.
126-127. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
128-130. Accepted and incorporated in substance.
131. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
132-134. Accepted and incorporated in substance.
135. First sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon that or other testimony; Second sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
136-138. Accepted and incorporated in substance.
139-142. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First and second sentences: Accepted and incorporated in substance; Third and fourth sentences: To the extent that these proposed findings suggest that the eastern 80 acres of the Application 47 property have been developed to the extent that they have an existing residential density of 2.5 dwelling units per gross acre, these proposed findings have been rejected because they are not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
146-148. Accepted and incorporated in substance.
Rejected for the same reason that the Department's and Objectors' Proposed Finding of Fact 371 has been rejected.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
151-155. Rejected because they reference analyses and conclusions that were not presented to, nor considered by, the County Commission.
Accepted and incorporated in substance.
To the extent that this proposed finding suggests that the objection referenced was the "sole objection" that related to Application 39, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
First and second sentences: Accepted and incorporated in substance: Third sentence: Rejected because it is not supported by persuasive competent substantial evidence. This "comment" was directed to "the proposed amendments which would place residential uses in close proximity to Tamiami Airport." "Amendment" 39 was among these "proposed amendments;" Fourth sentence:
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
160-165. Accepted and incorporated in substance.
166. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.
167-168. Accepted and incorporated in substance.
169-170. Rejected because they constitute summaries of, and commentaries on, evidence rather than findings of fact based upon that or other evidence.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it constitutes argument regarding the state of the evidentiary record rather than a finding of fact based upon the evidence adduced at hearing..
First sentence: Accepted and incorporated in substance; Second and third sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
173-174. Accepted and incorporated in substance.
To the extent that this proposed finding suggests that Lehrman "demonstrated" the matters referenced therein "to the satisfaction of the County Commission," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it simply suggests that Lehrman sought to prove these matters "to the satisfaction of the County Commission," it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
To the extent that this proposed finding states that at the final adoption hearing, the Aviation Director advised the County Commission that Wellenhofer's property was not within the 65/75 LDN contour, it has been accepted and incorporated in substance. Otherwise, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
To the extent that this proposed finding states that Rist, Lehrman and Elder "spoke on Application 39" at the final adoption hearing, it has been accepted and incorporated in substance. To the extent that it asserts that no other persons, aside from these three, "spoke on" this application, it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. To the extent that it suggests that the objections Rist made at the final adoption hearing did not reflect her position on the matter as a member of the League, it has been rejected because it is not supported by the greater weight of the evidence.
180-191. Accepted and incorporated in substance.
192. Rejected because it is not supported by persuasive competent substantial evidence.
193-198. Accepted and incorporated in substance.
199. To the extent that this proposed finding suggests that Traurig "demonstrated" the matters referenced therein "to the satisfaction of the County Commission," it has been rejected because it is not supported by persuasive competent substantial evidence. To the extent that it simply suggests that Traurig sought to prove these matters "to the satisfaction of the County Commission," it has been accepted and incorporated in substance.
200-204. Accepted and incorporated in substance.
205-210. To the extent that these proposed findings are inconsistent with Findings of Fact 206-211 of this Recommended Order, they have been rejected because they are contrary to the greater weight of the evidence.
211-212. Rejected because they constitute summaries of, and commentaries on, testimony rather than findings of fact based upon that or other testimony.
Accepted and incorporated in substance.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Accepted and incorporated in substance.
215-216. Accepted and incorporated in substance.
217-219. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Last sentence: Accepted and incorporated in substance; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon that or other testimony; Remaining sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it constitutes a summary of testimony rather than a finding of fact based upon that or other testimony.
First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Rejected because they constitute summaries of testimony rather than findings of fact based upon that or other testimony.
224-225. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance.
To the extent that this proposed finding asserts that certain issues raised in the Department's statement of intent were not based upon matters addressed in the ORC, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
To the extent that this proposed finding asserts that certain issues raised in the Department's original petition were not based upon matters addressed in the ORC, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
To the extent that this proposed finding asserts that certain issues raised in the Department's amended petition are not based upon matters addressed in the ORC, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.
The Objectors' joint petition for leave to intervene was filed on June 26, not June 21, 1990. Accordingly, this proposed finding, which indicates the contrary, has been rejected.
Accepted and incorporated in substance.
COPIES FURNISHED:
Stephanie M. Callahan, Esquire David J. Russ, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
John G. Fletcher, Esquire Suite 304
7600 Red Road
South Miami, Florida 33143
Richard Grosso, Esquire Legal Director
1000 Friends of Florida
P.O. Box 5948
Tallahassee, Florida 32314
Joni Armstrong Coffey, Esquire Assistant County Attorney
111 N.W. 1st Street Suite 2810
Miami, Florida 33128-1993
Jeffrey E. Lehrman, Esquire 2699 South Bayshore Drive Suite 300 D
Miami, Florida 33133
Eileen Ball Mehta, Esquire Carter McDowell, Esquire Stanley B. Price, Esquire Fine Jacobson Schwartz Nash
Block & England
One CenTrust Financial Center
100 S.E. 2nd Street Miami, Florida 33131
Douglas M. Cook, Director Planning and Budgeting
Executive Office of the Governor The Capitol
Tallahassee, Florida 32399-0001
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
| Issue Date | Proceedings |
|---|---|
| Mar. 30, 1993 | Notice of Commission Meeting filed. |
| Jan. 06, 1992 | (Respondent) Exceptions to Recommended Order filed. |
| Dec. 26, 1991 | Recommended Order and Order on Motion for Sanctions sent out. CASE CLOSED. Hearing held December 10-14, 17-21, 1990, January 14-18, 28-30, 1991. |
| Sep. 27, 1991 | Letter to SML from J. Coffey (Re: Enclosed Disc of Proposed Recommended Order - TAGGED) filed. |
| Sep. 18, 1991 | (TAGGED Computer Disk Containing DCA's, Petitioner & Intervenors' Proposed Recommended Order filed. (From Stephanie M. Callahan) |
| Sep. 16, 1991 | cc: Notice of Filing Joint Proposed Recommended Order and Request forLeave to File Joint Proposed Recommended Order in Excess Length Pursuant to Rule 22-I6.031(3), F.A.C. filed. |
| Sep. 04, 1991 | (DCA & Intervenors) Notice of Filing Proposed Recommended Order; Proposed Recommended Order filed. |
| Sep. 03, 1991 | (C. Suchman et al) Proposed Recommended Order filed. |
| Sep. 03, 1991 | (Metro-Dade) Notice of Filing; Proposed Recommended Order filed. |
| Aug. 05, 1991 | Order sent out. (Re: Rulings on Motions). |
| Aug. 01, 1991 | (Petitioner) Notice of Filing Joint Proposed Recommended Order and Request for Leave to File Joint Proposed Recommended Order in Excess Length Pursuant to Rule 22-16/031(3), F.A.C. filed. (From Stephanie Callahan) |
| Jul. 31, 1991 | (Respondent) Motion For Leave to File Proposed Recommended Order in Excess Rule Limitations filed. (From Joni Armstrong) |
| Jul. 31, 1991 | (Petitioner) Supplemental Notice of Filing Exhibits filed. (From Stephanie Callahan) |
| Jul. 29, 1991 | Joinder in Proposed Recommended Order of Carol Rist and the Department of Community Affairs filed. (From John G. Fletcher) |
| Jul. 11, 1991 | Order sent out. (Re: Motion for Extension of Time, granted). |
| Jul. 10, 1991 | (Respondent) Motion for Extension of Time filed. (From Joni Amstrong Coffey) |
| Jul. 09, 1991 | Joint Response in Opposition to Motion For Judicial Notice of 1990 U.S. Census Data filed. (From Richard Grosso) |
| Jul. 05, 1991 | Order sent out. (Re: Motion for official recognition denied). |
| Jun. 28, 1991 | Respondent and Intervenors Motion For Judicial Notice of 1990 United States Census filed. (From Joni Armstrong Coffney et al) |
| Jun. 18, 1991 | Order (Motion for Extension of Time GRANTED; Post-Hearing Submittals to be filed no later than July 16, 1991) sent out. |
| Jun. 18, 1991 | (Respondent) Motion for Extension of Time rec'd) (From Joni A. Coffey) |
| May 24, 1991 | Order sent out. (motion for leave to file joint post-hearing submittals granted/due 7/1/91) |
| May 24, 1991 | (Respondent) Motion for Leave to File Joint Proposed Findings of Fact, Proposed Conclusions of Law, Proposed Recommended Order and Legal Brief; Motion for Extension of Time; Notice of Response of Intervenor Carol Rist to Motion of Dade County, Suchman and |
| Apr. 26, 1991 | (Respondent) Notice of Filing w/Exhibits (6)Cassett Tapes; (3) Video Cassette Tapes & (7) Maps (TADDED) filed. (from Joni A. Coffey) |
| Apr. 12, 1991 | Order sent out. (motion for extension of time to file respondents exhibits granted) |
| Apr. 12, 1991 | (Respondent) Notice of Filing; Motion For Extension of Time in Which to File Certain Exhibits filed. (From Joni A. Coffey) |
| Apr. 12, 1991 | Transcript (Vols 17-28) filed. |
| Mar. 29, 1991 | Order (request for extension of time GRANTED) sent out. |
| Mar. 29, 1991 | (Respondent) Motion for Extension of Time filed. |
| Mar. 08, 1991 | Transcript (Vols 1-16) filed. |
| Mar. 04, 1991 | Order(Motion requesting extension of time up to and including March 29, 1991 is GRANTED) sent out. |
| Feb. 28, 1991 | (Respondent) Motion for Extension of Time in Which to File Exhibits; Notice of Filing and Exhibits attached filed. |
| Feb. 14, 1991 | Order (Respondents Motion requesting a fifteen day extension of time to file exhibits GRANTED) sent out. |
| Feb. 14, 1991 | (DCA) Notice of Filing Exhibits; Petitioner's Exhibits 1-9 & 13-52 TAGGED filed. |
| Feb. 13, 1991 | (Respondent) Motion for Extension of Time filed. (From Joni ArmstrongCoffey) |
| Jan. 16, 1991 | (Intervenors) Motion to Modify Exhibit List filed. (from Eileen Ball Mehta) |
| Jan. 09, 1991 | Order (Case in Continuance) sent out. (hearing rescheduled for Jan. 14-18 and 28-31, 1991: 11:15 am: Miami) |
| Jan. 07, 1991 | The petition for writ of prohibition is hereby Denied-third DCA filed. |
| Jan. 04, 1991 | (Petitioner) Amended Response to Suchman's Request For Admission filed. (from David J. Russ) |
| Dec. 28, 1990 | Order (Hearing Continued) sent out. (hearing rescheduled for Jan. 7-11, 1991: 11:30 am: Miami) |
| Dec. 14, 1990 | Joinder in Respondent's Addendum to Pre-Hearing Stipulation and Exhibit List filed. |
| Dec. 10, 1990 | (Respondent) Supplemental Answers to Department of Community Affairs First Set of Interrogatories to Respondent Metropolitan Dade County; Exhibit List filed. (From J. A. Coffey) |
| Dec. 10, 1990 | (Respondent) Motion to Exclude Witness filed. (From J. Armstrong) |
| Dec. 10, 1990 | (Respondent) Answer filed. (From J. Armstrong) |
| Dec. 10, 1990 | Respondent's Addendum to Pre-Hearing Stipulation; (Respondent) Motionto Exclude Witnesses & attachment filed. (From J. A. Coffey) |
| Dec. 07, 1990 | Letter to SML from J. E. Lehrman (re: Continaunce denied) filed. |
| Dec. 07, 1990 | Exhibit List; Supplemental Answers to Department of Community AffairsFirst Set of Interrogatories to Respondent Metropolitan Dade County; Respondent's Addendum to Pre-Hearing Stipulation filed. (From J. Armstrong) |
| Dec. 06, 1990 | Order (Alajuela N.V.'s Motion for Leave to Withdraw as an Intervenor GRANTED; Alajuela N.V.'s previously filed petition for leave to intervene is dismissed) sent out. |
| Dec. 06, 1990 | Order (Motion for Continuance DENIED) sent out. |
| Dec. 05, 1990 | Notice of Motion to Withdraw As Intervenor filed. (From C. C. Papy, III) |
| Dec. 05, 1990 | Supplemental Answers to Department of Community Affairs First Set of Interrogatories to Intervenor, Suchman filed. (From Eileen B. Mehta) |
| Dec. 04, 1990 | (Respondent) Motion for Continuance and Request For Oral Argument filed. (From J. A. Coffey) |
| Dec. 03, 1990 | Request for Admissions; Request For Production of Documents filed. (From E. B. Mehta) |
| Dec. 03, 1990 | Request For Oral Argument; Motion For Continuance; Motion for Continuance and Request For Oral Argument filed. (From E.B. Mehta) |
| Nov. 27, 1990 | Motion For Clarification or Prehearing Procedure and For Exclusion ofCertain Respondent Witnesses filed. (From S. M. Gehres) |
| Nov. 26, 1990 | Notice of Oral Argument filed. |
| Nov. 26, 1990 | Fifth DCA Case No# 5-90-2591 filed. |
| Nov. 21, 1990 | Order (Motion for Continuance Granted; Motion for Extension of the Discovery Deadline Granted) sent out. (hearing rescheduled for Dec. 10,1990: 1:00 pm: will continue thereafter on Dec. 11-14, 1990 and Dec. 17-21, 1990: Miami) |
| Nov. 20, 1990 | (Respondents) Motion for Continuance filed. (From Joni Armstrong et al) |
| Nov. 19, 1990 | Respondents' Pre-Hearing Stipulation filed. (From Joni Armstrong Coffer et al) |
| Nov. 19, 1990 | (Metro-Dade County) Re-Notice of Taking Deposition filed. |
| Nov. 19, 1990 | (Petitioner) Adendum to Prehearing Stipulation filed. (From S. Gehres) |
| Nov. 19, 1990 | Notice of Continuation of Taking Deposition filed. (From Stephanie M.Gehres) |
| Nov. 16, 1990 | Prehearing Stipulation filed. (From (From Stephanie M. Gehres et al) |
| Nov. 13, 1990 | Order (Ruling on Motions) sent out. |
| Nov. 13, 1990 | (Respondent) Re-Notice of Taking Deposition filed. (From Joni Armstrong Coffey) |
| Nov. 13, 1990 | Order (ruling on motions) sent out. |
| Nov. 08, 1990 | (Petitioner) Motion For Order Compelling Discovery filed. (From Stephanie M. Gehres) |
| Nov. 08, 1990 | (Petitioner) Motion For Order Compellingt Discovery w/exhibit-A (filed. (From Robert Ginsburg) |
| Nov. 07, 1990 | (Petitioner) Motion For Protective Order and Motion to Quash Subpoenafiled. (From Stephanie M. Gehres) |
| Nov. 05, 1990 | (Petitioner) Re-Notice of Taking Deposition filed. (From Stephanie M.Gehres) |
| Nov. 05, 1990 | Re-Notice of Taking Deposition filed. (from Charles C. Papy, III) |
| Nov. 01, 1990 | (Intervenor) Notice of Taking Deposition filed. (from Charles C. Papy, III) |
| Nov. 01, 1990 | (Intervenor) Motion for Extension of Time For Discovery filed. (from Charles C. Pappy, III) |
| Nov. 01, 1990 | (Respondent) Notice of Taking Deposition Duces Tecum filed. Joni Armstrong Coffey) |
| Oct. 30, 1990 | (Petitioner) Notice of Taking Deposition filed. (From Stephanie M. Gehres) |
| Oct. 23, 1990 | Second Amended Notice of Hearing sent out. (hearing set for 11/26/90;in Miami; at 10:45am) |
| Oct. 18, 1990 | Notice of Taking Deposition filed. (from Charles C. Papy, III) |
| Oct. 12, 1990 | (Petitioner) Notice of Taking Deposition filed. (From Stephanie Gehres) |
| Oct. 04, 1990 | Order (Countys and Suchmans motions for Protective order are now MOOT) sent out. |
| Oct. 03, 1990 | Order (Wllenhofers request that Grosso be disqualified from further representation ofg Rist DENIED) sent out. |
| Oct. 03, 1990 | Petitioner's Response to Respondent's Motion for Protective Order filed. |
| Oct. 03, 1990 | (Intervenors) Motion For Protective Order filed. (From Eileen Ball Mehta) |
| Oct. 03, 1990 | (Respondent) Motion For Protective Order filed. (From Joni Armstrong Coffey) |
| Oct. 01, 1990 | (Intervenor) Opposition to Motion For Substitution of Counsel filed. (From Jeffrey E. Lehrman) |
| Sep. 28, 1990 | Order(Petitioner Carol Rist filed a motion requesting the hearing officer "allow the substition of Richard Grisso" Motion Granted) sent out. |
| Sep. 26, 1990 | (Carol Rist) Motion for Substitution of Counsel filed. (from R. Grosso) |
| Sep. 24, 1990 | (Petitioner) Notice of Taking Deposition filed. (From Stephanie M. Gehres) |
| Sep. 20, 1990 | (Intervenor) Notice of Serving Answer to Interrogatories filed. (FromCharles C. Papy, III) |
| Sep. 19, 1990 | Order (re: ruling on motions) sent out. |
| Sep. 19, 1990 | Notice of Service of Suchman's Answers to Petitioner's lst Set of Interrogs. filed. |
| Sep. 18, 1990 | Notice of Service of Answers to Petitioner's Interrogs. to IntervenorJohn H. Wellenhofer filed. |
| Sep. 10, 1990 | (Metro-Dade County) Notice of Service of Response to Petitioner's Request for Admissions; Notice of Service of Answers to Petitioner's First Interrogatories to Respondent Metropolitan Dade County; Dade County's Response to Request for Admissions filed. |
| Sep. 05, 1990 | Suchman's Motion For Extension of Time to Respond to Interrogatories filed. (From Eileen Ball Mehta) |
| Aug. 31, 1990 | (Alajuela) Answer and Defenses filed. (Unsigned from C. Papy). |
| Aug. 30, 1990 | Order (Re: Dade County Motion for extension of time granted) sent out. |
| Aug. 29, 1990 | Answer and Defenses filed. (from Charles C. Papy, III) |
| Aug. 29, 1990 | Petitioenr's Respone to Respondent's Motion For Extension of Time to Respond to Discovery filed. (from Stephanie Gehres) |
| Aug. 27, 1990 | Intervenors' Motion to Dismiss Amended Petition & Answers filed. (from Eileen Bail Mehta) |
| Aug. 20, 1990 | (Respondent) Motion For Extension of Time to Respond to Discovery filed. (From Joni Armstrong Coffey) |
| Aug. 17, 1990 | Order (county's request for oral argument denied; county's prehearingmotion to dismiss denied) sent out. |
| Aug. 17, 1990 | Order (petitioners motion requesting a waiver of 30 interrogatory limitation granted) sent out. |
| Aug. 17, 1990 | Order (petitioner's motion requesting waiver of 30 interrogatory limitation granted) sent out. |
| Aug. 17, 1990 | Motion for Extension of Time to Respond to Discovery filed. |
| Aug. 09, 1990 | Order (Alajuela, N.V. granted intervenor status) sent out. |
| Aug. 06, 1990 | (Intervenor) Motion for Extension of Time filed. (From Charles C. Papy, III) |
| Aug. 06, 1990 | (Intervenor) Motion for Extension of Time filed. (From Charles C. Papy, III) |
| Aug. 03, 1990 | (DCA) Notice of Substitution of Counsel filed. (from S. Gehres). |
| Aug. 03, 1990 | (DCA) Amended Motion for Waiver of Interrogatory Limitation |
| Aug. 03, 1990 | Notice of Service of Interrogatories to Intervenor Suchman; Department of Community Affairs' First Set of Interrogatories to Intervenor Suchman filed. |
| Aug. 03, 1990 | Notice of Service of Interrogatories to John Wellenhofer; Department of Community Affairs' First Set of Interrogatories to John Wellenhoferfiled. |
| Aug. 01, 1990 | (Petitioner) Amended Petitioner's Reply to Affirmative Defenses Filedby Wellenhofer & appendix filed. (from (From Stephanie M. Gehres) |
| Jul. 30, 1990 | Response in Opposition to Petitioner's Motion to Strike filed. (From Eileen Ball Mehta) |
| Jul. 30, 1990 | (Petitioner) Motion For Waiver of Interrogatory Limitation & Appendixfiled. (from Richard Grosso) |
| Jul. 30, 1990 | (Petitioner) Notice of Service of Interrogatories to Alajuela, N. V. w/Department of Community Affairs' First Set of Interrogatories to Alajuela, N. Y.filed. (From Richard Grosso) |
| Jul. 30, 1990 | Petitioner's Reply to Affirmative Defenses Filed by Wellenhofer filed. (From Richard Grosso) |
| Jul. 30, 1990 | Petitioner's Response to Respondent's Motion to Dismiss filed. (From Richard Grosso) |
| Jul. 30, 1990 | (Unisigned) Amended Petition to Intervene filed. Charles C. Papy, III) |
| Jul. 27, 1990 | Petitioner's Reply to Respondent's Defenses filed. (From Joseph W. Landers, Jr.) |
| Jul. 25, 1990 | (Intervenor) Amended Petition to Intervene filed. (From Charles C. Papy, II) |
| Jul. 24, 1990 | (Dade County) Request for Oral Argument filed. |
| Jul. 23, 1990 | Order (petitioner's extension of time granted) sent out. |
| Jul. 23, 1990 | (Respondent) Motion for Extension of Time; Answer; Motion to Dismiss w/exhibits 1&2 filed. (from Joni Armstrong) TAGGED |
| Jul. 20, 1990 | (Respondent) Motion for Extension of Time filed. (from Joni Armstrong) |
| Jul. 20, 1990 | Order (extension to file answers to petition granted to 8/17/90) sentout. |
| Jul. 19, 1990 | (Intervenor) Answer and Affirmative Defenses of Intervenor, Wellinhofer, (Amendment (#39) to the Amended Petition of the Department of Community Affairs w/exhibit-A filed. (From Jeffrey E. Lehrman) |
| Jul. 18, 1990 | Order (John H. Wellenhoffer request for intervention granted; ruling on other issues) sent out. |
| Jul. 18, 1990 | (Intervenor) Petition to Intervene filed. (From Charles C. Papy, III) |
| Jul. 18, 1990 | (Intervenor) Petition to Intervene filed. (from Charles C. Papy, III) |
| Jul. 17, 1990 | Amended Notice of Hearing sent out. (hearing set for Nov 26-30, 1990;10:45am; Miami) |
| Jul. 17, 1990 | (Intervenor) Petition to Intervene filed. (From Charles C. Papy, III) |
| Jul. 16, 1990 | (Intervenor) Petition to Intervene filed. (from Charles C. Papy, III) |
| Jul. 16, 1990 | Motion for Extension of Time in Which to Answer and to Serve Discovery Responses filed. |
| Jul. 13, 1990 | (Petitioner) Motion to Dismiss Petition to Intervene Filed by Alejuela, N. V. filed. (From Richard Grosso) |
| Jul. 12, 1990 | Order (petition for leave to intervene granted) sent out. |
| Jul. 09, 1990 | Petitioner's Response to and Motion to Strike Portions of Suchmans' Petition to Intervene filed. (From Richard J. Grosso) |
| Jul. 06, 1990 | Order (petitioner's request for leave to file amended petition granted) sent out. |
| Jul. 05, 1990 | Order (petitioner's motion requesting waiver of 30 interrogatory limitation granted) sent out. |
| Jul. 05, 1990 | (respondent) CC of Memorandum in Opposition to Petitioner's Motion toAmend Petition filed. |
| Jul. 03, 1990 | Notice of Hearing sent out. (hearing set for Nov 26-30, 1990; 10:45am; Miami) |
| Jul. 03, 1990 | (DCA) Reply to Respondent's Supplemental Response to Scheduling Orderfiled. |
| Jul. 03, 1990 | Petitioner's Motion in Opposition to and to Strike Portions of Wellenhofer's Petition for Leave to Intervene and Reply to Wellehofer's Answer and Affirmative Defenses filed. |
| Jun. 29, 1990 | Supplemental Response to Scheduling Order filed. (From Joni ArmstrongCoffey) |
| Jun. 28, 1990 | Order (resp's motion for extension of time to file answer to pet's petition granted) sent out. |
| Jun. 28, 1990 | Petition of Clifford L. Suchman, Trustee, Shane Suchman Real Estate Corp. and Suchman Development Corp. to Intervene filed. (From Eileen Ball Mehta) |
| Jun. 28, 1990 | (Respondent) Motion for Extension of Time to Answer Petition filed. (from Joni Armstrong Coffey) |
| Jun. 27, 1990 | (Intervenor) Petition For Leave to Intervene and Accerptance of Answer and Affirmative Defenses filed. (From Jeffrey E. Lehrman) |
| Jun. 26, 1990 | (Redland Citizens Assn, Inc) Petition for Leave to Intervene as Full Party Petitioners (+ att's) filed. |
| Jun. 25, 1990 | Response to Order on Scheduling filed. (From Joni Armstrong) |
| Jun. 19, 1990 | (Petitioner) Notice of Service of Request for Admissions filed. (FromRichard J. Grosso) |
| Jun. 19, 1990 | (Petitioner) Motion For Waiver of Interrogatory Limitation & Department of Community Affairs' First Set of Interrogatories to Metro-Dade County filed. (from Richard J. Grosso) |
| Jun. 19, 1990 | (Petitioner) Motion to File Amended Petition & Amended Petition of the Department of Community Affairs w/Exhibits A&B filed. (From Richard J. Grosso) |
| Jun. 13, 1990 | Initial Order issued. |
| Jun. 13, 1990 | Order sent out. (Re: prehearing instructions) |
| Jun. 12, 1990 | PPF'sent out. |
| Jun. 08, 1990 | Petition of the Department of Community Affairs filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 26, 1991 | Recommended Order | Comp. plan amendments that changed use designations of 375 acres and added 480 acres to urban area did not render plan not in compliance |
