STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VILLAGE OF KEY BISCAYNE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0250GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and METROPOLITAN DADE COUNTY, )

)

Respondents, )

and )

) MARINE EXHIBITION CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on March 25 and 26, 1996, in Miami, Florida.

APPEARANCES

For Petitioner, Joseph H. Serota, Esquire Village of Key Barbara J. Riesberg, Esquire Biscayne: WEISS, SEROTA & HELFMAN, P.A.

2665 South Bayshore Drive, Suite 204

Miami, Florida 33133

For Respondent, Karen Brodeen, Esquire Department of Department of Community Affairs Community Affairs: 2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent, Craig H. Coller, Esquire Metropolitan Joni Armstrong Coffey, Esquire Dade County: Metropolitan Dade County

Stephen P. Clark Center

111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993

For Intervenor, Clifford A. Schulman, Esquire Marine Exhibition Kerri L. Barsh, Esquire Corporation: GREENBERG & TRAURIG, P.A.

1221 Brickell Avenue

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue in this case is whether an amendment to the Metropolitan Dade County comprehensive plan adopted as Item No. 6, Ordinance No. 94-192, is "in compliance", as those terms are defined in Section 163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

On or about October 13, 1994, Metropolitan Dade County adopted Ordinance No. 94-192. Pursuant to Item No. 6 of the Ordinance, Metropolitan Dade County adopted an amendment to its comprehensive plan. On or about December 12, 1994, the Department of Community Affairs issued a notice of intent to find the plan amendment "in compliance".

On or about January 3, 1995, Petitioner, the Village of Key Biscayne, filed a Petition for Administrative Hearing Pursuant to Section 120.57, Florida Statutes, challenging the determination of "in compliance" made by the Department of Community Affairs. Metropolitan Dade County elected to file an Answer to the Petition.

The Petition was filed with the Division of Administrative Hearings on January 20, 1995, with a request that a Hearing Officer be assigned to conduct a formal administrative hearing. The matter was designated case number 95-0250GM and was assigned to the undersigned. The parties were notified of the assignment of the hearing officer by a Notice of Assignment and Order entered February 9, 1995.

On January 30, 1995, Marine Exhibition Corporation filed a Petition for Leave to Intervene as Party Respondent. Intervention was granted by an Order Granting, In Part, Petition for Leave to Intervene. Intervenor elected to file an Answer to the Petition.

The final hearing was scheduled for July 19-20, 1995. The final hearing was continued several times to give the parties an opportunity to attempt to settle their dispute. After efforts to resolve the matter failed, the final hearing was scheduled for March 25 and 26, 1996, by a Third Notice of Hearing entered February 22, 1996.

Immediately prior to the final hearing Petitioner was granted leave to file an Amended Petition.

At the final hearing Petitioner presented the testimony of the Honorable Betty Sime, Jeffrey Bielling and David Jon Russ. Mr. Russ was accepted as an expert witness. Petitioner offered 18 exhibits. All were accepted into evidence except exhibit 18. A ruling on relevancy objections to exhibits 15, 16 and 17 was reserved.

The Department of Community Affairs presented the testimony of Thomas Beck, who was accepted as an expert witness. The Department of Community Affairs offered no exhibits.

Metropolitan Dade County presented the testimony of Robert Usherson, who was accepted as an expert witness. Metropolitan Dade County offered 5 exhibits. All were accepted into evidence. A ruling on relevancy objections to exhibits 4 and 5 was reserved.

Intervenor presented the testimony of Arthur Hertz. Intervenor offered 8 exhibits. All were accepted into evidence. A ruling on a relevancy objection to exhibit 4 was reserved.

A request to take official recognition of Rule 9J-12, Florida Administrative Code, was granted.

The transcript of the final hearing was mailed to the Division of Administrative Hearings by letter from the court reporter dated April 8, 1996. By agreement of the parties, proposed orders were, therefore, required to be filed on or before May 8, 1996. On May 6, 1996, Intervenor filed a Motion for Continuance requesting an extension until May 22, 1996 to file proposed recommended orders. The motion was granted without objection. On May 20, 1996, Intervenor filed a second Motion for Continuance. Intervenor requested an extension until May 31, 1996 to file proposed recommended orders. The motion was granted without objection. Finally, On June 3, 1996, Intervenor filed a third Motion for Continuance requesting an extension until June 10, 1996 of the deadline to file proposed recommended orders. The motion was granted without objection.

All of the parties, except Metropolitan Dade County, filed proposed orders on or before June 10, 1996. Petitioner also filed a Post-Hearing Brief.

Metropolitan Dade County adopted Intervenor's proposed recommended order, except for the statement of the issue contained in Intervenor's proposed recommended order. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Village of Key Biscayne (hereinafter referred to as the "Village"), is a local government (a municipal corporation) located within Dade County, Florida.

      
      

   2. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act").

      
      

   3. Respondent, Metropolitan Dade County (hereinafter referred to as "Dade County"), is a political subdivision of the State of Florida. Dade County is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction.

      
      

   4. Intervenor, Marine Exhibition Corporation (hereinafter referred to as "Marine"), is the applicant for the amendment which is at issue in this case. Marine is the owner of the Miami Seaquarium (hereinafter referred to as the "Seaquarium"), a saltwater oceanarium and tourist attraction located in Dade County, Florida.

      
      

2. The Village's Standing.

   
   

   1. The Seaquarium is located on Virginia Key, an island located in Biscayne Bay.

   2. The Seaquarium is connected with the mainland of Dade County by the Rickenbacker Causeway.

      
      

   3. The Village is located on Key Biscayne. Key Biscayne is an island located in Biscayne Bay. Key Biscayne is connected to Virginia Key. Key Biscayne is connected with the mainland of Dade County through Virginia Key.

      The Rickenbacker Causeway runs through Virginia Key, past the Seaquarium, over a bridge onto Key Biscayne. The Causeway becomes Crandon Boulevard, which runs to and through the Village and ends at Cape Florida, at the southeastern corner of Key Biscayne.

      
      

   4. Virginia Key and Key Biscayne are located within the jurisdictional boundaries of Dade County.

      
      

   5. The closest Village boundary to the Seaquarium is located approximately

      2 and 1/4 to 2 and 1/2 miles from the Seaquarium property.

      
      

   6. The Village is located completely within Dade County's jurisdictional boundaries. The Village, therefore, owns property located in Dade County. The Village conducts all of its business within its city limits, located on Key Biscayne.

      
      

   7. The weight of the evidence failed to prove that the plan amendment at issue in this proceedings will "produce substantial impacts on the increased need for publicly funded infrastructure" of the Village or will create a "substantial impact on areas designed for protection or special treatment within the [Village's] jurisdiction." See Section 163.3184(1)(a), Florida Statutes.

      
      

   8. The Village raised objections by oral and written comments concerning the proposed amendment (hereinafter referred to as the "Proposed Amendment"), at public hearings during the period of time commencing with the transmittal hearing and ending when the Proposed Amendment was adopted by Dade County. The Village's objections and comments did not include objections or comments concerning density and intensity standards.

      
      

3. The Seaquarium.

   
   

   1. The Seaquarium is located on thirty-seven acres. The property is owned by Dade County and has been subject to a long-term lease to Marine. Dade County also owns all structures erected on the site and all marine mammals.

      
      

   2. The Seaquarium has been in operation at its present site since 1954.

      
      

   3. The Seaquarium has a history of providing entertainment, educational and recreational uses to residents and visitors to Dade County.

      
      

   4. Existing uses of the Seaquarium include approximately ten marine mammal exhibits and corresponding shows featuring these mammals, a marina, theme-oriented gift shops and restaurants.

      
      

   5. Educational activities at the Seaquarium include: (a) a program to train teachers in marine science and student field trips (over 75,000 students attend the past year) in cooperation with Dade County and Broward County, Florida; (b) the largest manatee rehabilitation and recapture program in the United States; (c) an internship program with the Mast Academy, a magnet school for gifted high school students; and (d) research and development exchange

      programs with the National Oceanographic and Atmospheric Administration (hereinafter referred to as "NOAA").

      
      

4. Florida Quality Development Designation.

   
   

   1. Marine decided to improve its facilities at the Seaquarium through a project it labeled "Seaquarium Village."

      
      

   2. Marine initially sought and obtained a designation from the Department of the Seaquarium Village as a Florida Quality Development (hereinafter referred to as "FQD"), pursuant to Chapter 163, Florida Statutes.

      
      

   3. The Seaquarium Village project was subsequently challenged by the Village pursuant to Section 163.3215, Florida Statutes. The Village alleged that Seaquarium Village was not consistent with Dade County's comprehensive plan (hereinafter referred to as the "Plan").

      
      

   4. The Third District Court of Appeal entered an opinion on November 9, 1993, finding that the project was inconsistent with the Dade County Comprehensive Development Master Plan (hereinafter referred to as the "Plan"). Village of Key Biscayne v. Dade County, 627 So.2d 1180 (Fla. 3d DCA 1993), rev. den., 639 So.2d 976 (1994).

      
      

5. The Proposed Amendment.

   
   

   1. The Plan includes a Land Use Element. The Land Use Element identifies locations in Dade County where various land uses, including intensities of use, will be allowed during the period for which the Plan applies. The land uses are also depicted on the Future Land Use Map. One of the land uses provided for in the Plan is the "Parks and Recreation" land use.

      
      

   2. The Seaquarium is located within the "Parks and Recreation" Land Use Plan map category of the Plan.

      
      

   3. The Plan includes the following descriptive text concerning the "Parks and Recreation" Land Use Plan map category:

      
      

      Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational, entertainment or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources.

      
      

   4. Marine filed an application in November of 1993 with Dade County seeking approval of a modification of the "Parks and Recreation" land use category for the site of the Seaquarium.

      
      

   5. The proposed modification ultimately adopted by Dade County, after Dade County and Marine cooperated to agree on the proposed language, provides for the addition of the following language immediately after the descriptive text quoted in finding of fact 24:

      [Included in the category is the Seaquarium, a unique tourist attraction with a long history of educational, entertainment, and recreational benefit both to residents of Dade County and to visitors. Notwithstanding any other provisions in the Parks and Recreation section of the Land Use Plan Element, in order to continue and to enhance its contributions to the community, this facility may be authorized to renovate, expand, and increase the variety of its educa-

      tional, recreational and entertainment attractions. Accordingly, the following additional uses may be permitted at the Seaquarium site: recreational

      and educational uses, restaurants, gift shops, marine or water amusements, and environmentally- related theaters.] 1/

      
      

      The Proposed Amendment does not apply to any Parks and Recreation site other than the Seaquarium site.

      
      

   6. Following transmittal of the Proposed Amendment to the Department, the Department issued its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), on or about September 1, 1994.

      
      

   7. In the ORC the Department objected, in relevant part, to the lack of adequate data and analysis to demonstrate the compatibility of the Proposed Amendment with the surrounding land uses and raised questions concerning whether the proposed project was in a Coastal High Hazard Area.

      
      

   8. In response to the ORC, Dade County provided the following information to the Department: (a) the record of the transmittal and adoption hearings; (b) Chapter 9J-11 deliverables; (c) information on the surrounding land uses in the vicinity of the Seaquarium; (d) the Seaquarium FQD; (d) the Seaquarium ADA; and

      (e) information concerning coastal high-hazard area.

      
      

   9. The proposed Seaquarium modification of the Parks and Recreation Land Use Element was adopted by Dade County on October 13, 1994, by Ordinance No. 94- 192.

      
      

   10. In December, 1994, after review of the Proposed Amendment and the additional information provided by Dade County, the Department issued a Notice of Intent to Find the Proposed Amendment in Compliance.

       
       

   11. The decision of the Department was challenged by the Village on or about December 30, 1994.

       
       

6. Intensity or Density of Use.

   
   

   1. The Act provides the following regarding the Future Land Use plan element required to be included in all comprehensive plans:

      
      

      . . . designating proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings

      and grounds, other public facilities, and other categories of the public and private uses of land. . . . Each land use category shall be defined in terms of the types of uses included and specific standards for the density or intensity of use. . . .

      
      

      Section 163.3177(6)(a), Florida Statutes. See also Rule 9J-5.006(3)(c)7., Florida Administrative Code.

      
      

   2. The requirement of Section 163.3177(6)(a), Florida Statutes, concerning densities and intensities applies to all comprehensive plans and amendments thereto.

      
      

   3. "Densities" and "intensities" are objective methods of determining the extent to which land may be utilized.

      
      

   4. "Densities" are usually expressed in terms of the number of units allowed per acre of land. Rule 9J-5.003(33), Florida Administrative Code, defines "density" as "an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre." This definition of "density" was first adopted by rule in 1994. Densities are usually associated with residential uses. "Density" requirements are not relevant to the Proposed Amendment because it does not involve residential use of land.

      
      

   5. "Intensities" are most often expressed in terms of spatial uses, such as the amount of allowable floor space, lot coverage, or height. Rule 9J- 5.003(63), Florida Administrative Code, defines "intensity" as "an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on natural resources; and the measurement of the use or demand on facilities and services." This definition of "intensity" was first adopted by rule in 1994.

      
      

   6. The purpose of requiring density and intensity standards is to promote intelligent planning which allows for the measurement of developments on natural resources and infrastructure capacity, and allows the evaluation of compatibility with surrounding land uses.

      
      

7. Initial Approval of the Plan.

   
   

   1. The Plan was submitted to the Department for initial review in 1988. The Plan was one of the first comprehensive plans reviewed pursuant to the Act by the Department.

      
      

   2. At the time of the Department's initial review of the Plan, there was no definition of density or intensity provided by rule. The definitions of density and intensity included in Rules 9J-5.003(33) and (63), Florida Administrative Code, were not adopted until 1994.

      
      

   3. The Parks and Recreation category of the Plan, when originally submitted for review, was required to include an intensity standard. The Plan's definition of the Parks and Recreation land use category did not, however, contain a specific restriction on intensity of use such as a floor area ratio, maximum lot coverage, or height restriction.

   4. Rather than include a specific intensity restriction in the Plan, Dade County elected to describe the types of nonresidential uses which would be allowed under the Parks and Recreation land use category. Dade County restricted allowable uses to those which are complementary to the site and its natural resources. Dade County believed that its description of allowable uses constituted an adequate intensity standard, providing an objective measurement of the extent that land could be developed, the use and demand on natural resources, and the use and demand on facilities and services.

      
      

   5. Dade County is the largest county in Florida. It includes approximately 2000 to 2100 square miles. Dade County, therefore, elected to emphasize its natural resources and public service impacts on a "macromanagement" basis.

      
      

   6. The Parks and Recreation land use category included in the Plan allows a wide range of park and recreational uses, including "neighborhood parks, area parks, metropolitan parks, regional and state parks, including Everglades National Park, [and] tourist attractions such as the Seaquarium, Metro Zoo, [and] Viscaya . . . ." Transcript, Vol. III, Page 402.

      
      

   7. The Department approved the Plan without objection, recommendation or comment with regard to the definition of the Parks and Recreation land use category.

      
      

8. The "Baby Seal Policy".

1. The Department's policy concerning the application of the Act to growth management plans has evolved since the initial plans were reviewed. The Department has recognized that some of the plans it initially approved may be "less than perfect". In recognition of this problem, the Department found it necessary to develope a policy to deal with plans that do not comply with the Department's interpretation of the Act now that the Department has more experience interpreting and applying the Act.

   
   

2. The Department's response to the problem of dealing with plans that may not comply with the Act, but have previously been approved, is referred to as the "Baby Seal Policy". This policy has been described as follows: Local government A's comprehensive plan provides that ten baby seals may be killed over the planning period while local government B's plan provides that no baby seals may be killed. Both plans are initially approved by the Department. Subsequently, the Department adopts a rule that prohibits the killing of baby seals. Local government A then amends its plan to allow the killing of eight baby seals rather than ten. Local government B also amends its plan to allow the killing of two baby seals. In applying the "Baby Seal Policy" the Department would approve local government's amendment because it moves local government A's plan closer to complying the prohibition against killing baby seals. Local government B's amendment would not be approved, however, because it moves its plan further from complying with the prohibition.

   
   

3. The Department's Baby Seal Policy was developed so that the Department can comply with the requirement of Rule 9J-5.002(2)(h), Florida Administrative Code, that the Department consider as part of its review of plan amendments whether an amendment makes substantial progress towards consistency with applicable requirements of the rules and the Act. Rule 9J-5.002(2)(h), Florida Administrative Code, requires consideration during the review of a proposed plan amendment of the following:

   Whether the provision at issue constitutes substantial progress over existing provisions regarding consistency with and furtherance of Chapter 163, the State Comprehensive Plan, Strategic Regional Policy Plan and this Chapter, where the existing provisions are in a plan or plan amendment previously found in compliance.

   
   

4. The Department's "Baby Seal Policy" encourages local governments to adopt amendments to previously approved plans (which may not be in compliance with all provisions of the Act and/or Chapter 9J-5, Florida Administrative Code), which bring those plans closer to being in compliance with the Act and/or Chapter 9J-5, Florida Administrative Code.

   
   

   I. Application of the Baby Seal Policy to the Proposed Amendment.

   
   

5. The Department recognizes that the Parks and Recreation land use category of the Plan may not be in compliance with the requirements of Chapter 9J-5, Florida Administrative Code, because it does not provide for the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code.

   
   

6. The Proposed Amendment, however, continues Dade County's choice of describing the Parks and Recreation land use category by specifying the types of allowable uses at the Seaquarium.

   
   

7. There is no doubt that the Proposed Amendment includes uses allowable on the Seaquarium site which, when read alone and without regard to the Plan's overall definition of the Parks and Recreation land use category, are broad. The Proposed Amendment clearly does not include the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code.

   
   

8. The Proposed Amendment does, however, provide more detail as to the allowable uses on the Seaquarium site than currently included in the Parks and Recreation land use category. Consequently, the Proposed Amendment does provide greater certainty for indentifying the potential impacts of development at the Seaquarium site than the current definition of the Parks and Recreation land use category.

   
   

9. The Proposed Amendment does, therefore, move the Plan in the direction of compliance with Chapter 9J-5, Florida Administrative Code, in furtherance of the Baby Seal Policy and as required by Rule 9J-5.002(2)(h), Florida Administrative Code.

   
   

   1. Internal Consistency.

      
      

10. Internal consistency between and within elements of a growth management plan is required by the Act. Internal consistency must be maintained when a plan is amended. Without consistency in the provisions of a plan, it will not be clear what actions are allowable and unallowable under a plan.

    
    

11. The Proposed Amendment provides that certain modifications of the Seaquarium site will be allowable under the Plan "[n]otwithstanding any other provisions in the Parks and Recreation Section of the Land Use Plan Element . .

    . ." This language creates a clearly designated exception to, or deviation

    from, other requirements of the Land Use Plan Element. A clearly specified exception to, or deviation from, a provision in a plan does not create an inconsistency.

    
    

12. The evidence failed to prove that the Proposed Amendment creates an internal inconsistency with the Plan.

    
    

    1. Data and Analysis.

    
    

13. Plan amendments must be supported by data and analysis. Rules 9J- 5.005(2) and 9J-5.006(2), Florida Administrative Code.

    
    

14. Dade County provided, in addition to information concerning the surrounding area and coastal high hazard areas requested by the Department, the FQD and the Application for Development Approval (hereinafter referred to as the "ADA"), to the Department in support of the Proposed Amendment. While the FQD and the ADA pertain to a specifically proposed development, these documents contain data concerning the Seaquarium site, the only site to which the Proposed Amendment applies.

    
    

15. Although the Proposed Amendment is not limited to the project approved in the FQD or the portion of the ADA which relates expressly to the project approved in the FQD, the ADA contains information concerning the only site to which the Proposed Amendment applies. That information, or data, and the analysis thereof is relevant to a determination of whether the Proposed Amendment should be approved. The information contained in the ADA is useful in estimating the impacts of the types of development that are permissible pursuant to the Proposed Amendment and not just the impacts of the development addressed in the FQD. The FQD and the ADA also provide information concerning what type of project may reasonably be expected at the Seaquarium site.

    
    

16. Much of the pertinent data contained in the ADA also constitutes the best information available concerning the Seaquarium site and, therefore, the subject of the Proposed Amendment.

    
    

17. While the only expert witness called by the Village, Mr. David Russ, opined that the FQD does not constitute the data and analysis required in support of the Proposed Amendment, Mr. Russ did not give a similar opinion concerning the ADA. Nor had Mr. Russ read the ADA.

    
    

18. Non-development specific data provided to the Department in the ADA included information concerning services and facilities related to development at the site. In particular, data is included in the ADA concerning traffic and emergency services (proposed traffic improvements, trips, the existing roadway network, the applicable level of service and projected background traffic). Data was also provided in the ADA concerning wastewater, drainage and potable water (existing water distribution and transmission systems, pervious and impervious conditions), and solid waste.

    
    

19. Data and analysis concerning the natural resources of the Seaquarium site was also included in the ADA. Existing on-site vegetation and wildlife are inventoried and information concerning air quality and wetlands is provided.

    
    

20. Data and analysis concerning historical and archeological resources is also provided in the ADA.

21. Question 12 of the ADA provides information concerning the need for renovation and expansion of the Seaquarium site. Data and analysis concerning the need for redevelopment of the site was unrefuted by competent, substantial evidence.

    
    

22. The Department was also provided with data and analysis concerning the area which surrounds the site. Surrounding uses included the University of Miami Rosentiel School of Marine and Atmospheric Sciences, the United States National Marine Fisheries Laboratory Station and offices, the National Oceanographic and Atmospheric Administration offices, the Mast Academy, the City of Miami Marine Stadium and the Metro Dade County Central Regional Wastewater Treatment Facility. The Seaquarium and redevelopment which would be allowable pursuant to the Proposed Amendment are compatible with these surrounding uses.

    
    

23. The Village's suggestion that the data and analysis provided to the Department in the FQD and the ADA (which had not been read by the Village's expert witness) was not sufficient because the FQD pertains to a specific project is not supported by the weight of the evidence. The FQD and, more importantly, the ADA contain sufficient data and analysis to support the allowable land uses of the Proposed Amendment.

    
    

24. In addition to suggesting that the data and analysis provided to the Department is insufficient because the data and analysis relates to a specific project, the Village has argued that insufficient data and analysis has been provided with regard to intensity of use. This argument is essentially an extension of the Village's argument concerning the lack of an intensity standard. There is as much, or more, data and analysis provided with the Proposed Amendment concerning intensity of use as there is to support the existing Parks and Recreation land use category. The data and analysis to support the Parks and Recreation land use category which is presumed to exist, may also be relied upon in reviewing a plan amendment.

    
    

25. Additionally, the data and analysis provided as a part of the ADA is sufficient to support the maximum intensity of use allowable pursuant to the Proposed Amendment.

    
    

26. The evidence failed to prove that there was not adequate data and analysis to support a determination that the Proposed Amendment is "in compliance".

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

27. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Sections 120.57 and 163.3184(9), Florida Statutes (1995).

    
    

    1. Burden of Proof.

       
       

28. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and

29. In this proceeding, the burden of proof is placed on the Village by Section 163.3184(9), Florida Statutes, to prove to the exclusion of "fair debate" that the Proposed Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.

    
    

    1. The Village's Standing.

       
       

30. Pursuant to Section 163.3184(9), Florida Statutes, a determination that a plan or plan amendment is "in compliance" by the Department is subject to challenge in a Section 120.57(1), Florida Statutes, proceeding by any "affected person".

    
    

31. An "affected person" is defined as follows:

    
    

    1. "Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that the plan or plan amendment will 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 comments, during the period of time beginning with the transmittal hearing for

       the plan or plan amendment and ending with the adoption of the plan or plan amendment.

       
       

       Section 163.3184(1)(a), Florida Statutes.

       
       

32. The Village has suggested that it is an "affected person" for two reasons: (a) it is a person "owning property, residing, or owning or operating a business" within the boundaries of the local government whose plan amendment is under review, Dade County; and (b) it is an "adjoining local government" that can demonstrate the requisite impacts of the Proposed Amendment on the Village.

    
    

33. There is no dispute that the Village is an "adjoining local government". The Village, however, failed to prove that the Proposed Amendment will "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."

    
    

34. Whether a local government may constitute an "affected person" as a person who owns or resides on property located within the jurisdiction of another local government that is amending a plan, or as a person that owns or operates a business within that local government is a question of first impression. No court decision on this issue has been found. Marine has argued that Section 163.3184(1)(a), Florida Statutes, should be interpreted to limit adjoining local governments to participating in plan and plan amendment proceedings only if they can prove the requisite impacts of the plan or amendment on the local government.

35. The provisions of Section 163.3184(1)(a), Florida Statutes, evidence an intent of the Legislature to allow broad participation in plan amendment proceedings. Any person who owns or resides on property located within the jurisdiction of a local government that is amending a plan, or who operates a business with the local government's jurisdiction, may challenge the plan amendment without proving any actual impact from the plan amendment on the person's property, residence or business. For example, a person that owned or resided on property located in northern Dade County, far from the Seaquarium site, could challenge the Proposed Amendment even if he or she could not demonstrate any actual impact on the person or the person's property from the Proposed Amendment. Simply residing or owning property within the local jurisdiction is sufficient (as long as the person made the effort to submit written or oral comments). This portion of the definition of an affected person is broad enough to include natural as well as fictitious persons, such as governments.

    
    

36. With regard to an adjoining local government, the Legislature has recognized that, even though a local government may not have any presence within the jurisdiction of a local government that is adopting a plan amendment, there may be actual impacts from the plan amendment on that adjoining local government. Therefore, the Legislature has authorized participation by adjoining local governments in the planning process even if the adjoining local government has no or little presence in the jurisdiction of the local government that is adopting an amendment. In this way, the Legislature has expanded the persons that may participate in the planning process. This portion of the definition of an "affected person" would allow Broward County, a local government that adjoins Dade County, to challenge the Proposed Amendment, but only if it can demonstrate the requisite impacts from the Proposed Amendment.

    
    

37. Marine and Dade County would interpret the portion of the definition of "affected person" dealing with adjoining local governments as the exclusive basis for a local government to challenge a plan amendment proposed by an adjoining local government and as a limitation on the authorization of persons with the requisite presence within the jurisdiction of the local government adopting the amendment. Accepting this interpretation would allow the hypothetical natural person that owns or resides on property located in extreme northern Dade County described in paragraph 80, supra, to challenge the Proposed Amendment even though that person may not be able to demonstrate any impact from the Proposed Amendment on him or her while a local government, such as the Village, located only a few miles from the site of the Proposed Amendment would not be allowed to participate in the process because it is unable to demonstrate any impact from the Proposed Amendment. Such a result is not supportable by a reasonable interpretation of Section 163.3184(1)(a), Florida Statutes. See Druby v. Harding, 461 So.2d 104 (Fla. 1984).

    
    

38. The interpretation of Section 163.3184(1)(a), Florida Statutes, advocated by Marine and Dade County is contrary to the apparent intent of the Legislature to include broad participation in the growth management process.

    
    

39. Based upon the foregoing, it is concluded that the Village has proved that it is an "affected person" within the definition of Section 163.3184(1)(a), Florida Statutes. The Village owns property located within, and operates a business within, the jurisdictional boundaries of Dade County. The Village also made oral and written comments concerning the Proposed Amendment within the period of time specified in Section 163.3184(1)(a), Florida Statutes.

40. The evidence also proved that the other parties to this proceeding have standing.

    
    

    1. The Village's Challenge to the Proposed Amendment.

    
    

41. The Village has challenged the Proposed Amendment on essentially three grounds:

    
    

    1. The Proposed Amendment does not provide an "intensity" standard as required by Section 163.3177(6)(a), Florida Statutes, and Rule

       9J-5.006(3)(c)7, Florida Administrative Code;

    2. The Proposed Amendment is not internally consistent as required by Sections 163.3177(2) and 163.3184(2), Florida Statutes, and Rule

       9J-5.005(5)(a), Florida Administrative Code; and

    3. Data and analysis sufficient to support the Proposed Amendment was not provided as required by Section 163.3177(6), Florida Statutes, and Rules 9J-5.005(2) and 9J-5.006(2), Florida Administrative Code.

       
       

42. Section 163.3177(6), Florida Statutes, requires that each "land use category" contained in the future land use element "shall be defined in terms of the types of uses included and specific standards for the density or intensity of use." The Village has argued that the Proposed Amendment does not include the required intensity of use.

    
    

43. Marina and Dade County have argued that the Proposed Amendment does not establish a "land use category" and, therefore, is not required to establish intensity of use as suggested by the Village. This argument is rejected. While the Proposed Amendment itself need not include a specific intensity standard, in determining whether a plan amendment is "in compliance" the plan itself, with the changes of the proposed amendment, must be considered. For example, if a plan element includes an intensity standard and an amendment is made to the element that does not in and of itself include an intensity standard, the plan amendment should be found to be "in compliance" if, when the element, with the plan amendment language included, is limited by an adequate intensity standard.

    
    

44. The difficulty in this case is that the Parks and Recreation land use category as it currently exists does not include the type of intensity standard now required of growth management plans. Therefore, when the language of the Proposed Amendment is added to the Parks and Recreation land use category of the Plan, the Parks and Recreation land use category still lacks the type of intensity standard now required. To conclude that the Proposed Amendment is not "in compliance" because of the lack of an intensity standard, however, it would in effect be necessary to conclude that the Parks and Recreation land use category itself is not in compliance. The Department, however, lacks the authority to make such a determination, having previously determined that the Plan is in compliance.

    
    

45. In order to deal with the problems associated with reviewing amendments to plans which have been found in compliance which are, under todays understanding of the requirements of the Act, actually defective, the Department has adopted the Baby Seal Policy. This policy is consistent with, and carries out the requirement of, Rule 9J-5.002(2)(h), Florida Administrative Code. The

    evidence in this case supports a conclusion that the policy is reasonable, necessary and consistent with the requirements of the Act.

    
    

46. The evidence also proved that the Proposed Amendment is consistent with the Baby Seal Policy. The Village, therefore, failed to prove that the Plan, as amended by the Proposed Amendment, does not provide an "intensity" standard as required by Section 163.3177(6)(a), Florida Statutes, and Rule 9J- 5.006(3)(c)7, Florida Administrative Code.

    
    

47. The Village also failed to prove that the Proposed Amendment is not internally consistent. Providing a clear and specific exception to a requirement of the Plan does not create any inconsistency.

    
    

48. Finally, the Village's position with regard to the alleged lack of data and analysis is premised, in part, upon the Village's conclusion that the FQD and ADA cannot provide the type of data and analysis required because the FQD and ADA involve a specific project. The evidence failed to support this position.

    
    

49. In fact, while the FQD and ADA do involve a specific project, the ADA contains information concerning the subject of the Proposed Amendment, the Seaquarium, which is of a general nature. This general information is not limited just to the project which is the subject of the FQD.

    
    

50. The Villages has also premised its position with regard to data and analysis on the argument that data and analysis cannot be provided in support of facilities and services which may reasonably be necessary as a result of the Proposed Amendment without an intensity standard. This argument is rejected for two reasons. First, the evidence proved that sufficient data and analysis concerning services and facilities has been provided. Lastly, to agree with the Village's argument would require a repudiation of the Baby Seal Policy. Having accepted that policy as reasonable and having concluded that the Plan's lack of a more objective intensity standard must be accepted, it would be arbitrary to reject the Proposed Amendment under the guise of the data and analysis requirement of the Act because of the lack of such an intensity standard.

    
    

51. Based upon the foregoing, it is concluded that the Village has failed to prove to the exclusion of "fair debate" that the Proposed Amendment is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order

dismissing the Amended Petition for Administrative Hearing Pursuant to Section 120.56, Florida Statutes, filed by the Village of Key Biscayne.

DONE and ENTERED this 31st day of July, 1996, in Tallahassee Florida.

LARRY J. SARTIN, 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 31st day of July, 1996.*

ENDNOTE

1/ Bracketed words** [] are proposed additions to language currently existing in the CDMP. All other words exist in the Plan and will remain unchanged.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0250GM

All the parties, except Dade County, have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Village's Proposed Findings of Fact

1. Accepted in 1 and 7.

2. Accepted in 4-5 and 7.

3. Accepted in 6-7 and 9.

4. Not relevant.

5. Accepted in 18. But see 13.

6. Accepted in 5-7.

7. Accepted in 19.

8. Accepted in 13, 20 and 22-24.

9. Accepted in 21.

10. See 25.

11. Accepted in 24 and 26.

12. See 26. The last two sentences are not relevant.

13. The first sentence is not relevant. The rest of the propose finding is accepted in 29.

14. Too speculate and not relevant.

15. Accepted in 27-28.

16. Accepted in 31.

17-19 Accepted in 12 and 17-19.

1. Accepted in 20. The last sentence is a conclusion of law.

2. Accepted in 33.

3. Accepted in 35-37.

4. Accepted in 34.

24-25 Accepted in 52.

1. Not relevant.

2. The first sentence is hereby accepted. See 38 with regard to the last sentence.

3. Argument.

4. Not supported by the weight of the evidence. See 52. 30-31 See 55.

1. See 58

2. Hereby accepted.

34-36 Not relevant. See 69-70.

37 See 59.

38-39 Not supported by the weight of the evidence.

1. Accepted in 55.

2. Accepted in 56.

42-45 Not supported by the weight of the evidence. The last two sentences of proposed findings of fact 44 are not relevant.

The Department's Proposed Findings of Fact

1. Accepted in 24, 26 and 30.

2. Accepted in 1, 7 and 10.

3. Accepted in 12.

4. Conclusion of law.

5. Accepted in 46-48.

6. Accepted in 47.

7. Hereby accepted.

8. Accepted in 39 and hereby accepted.

9. Accepted in 22 and 24.

10. Accepted in 33-34 and 38.

11. Accepted in 36-37 and 40.

12. Accepted in 36.

13. Accepted in 41-42.

14. Accepted in 50.

15. Accepted in 26.

16. Accepted in 51 and 53.

17. Accepted in 54.

18. Accepted in 55.

19. Accepted in 56.

20. Accepted in 57.

21. Accepted in 58 and hereby accepted.

22. Accepted in 62 and hereby accepted.

23. Accepted in 45. See 69-70. 24 See 67-70.

1. Accepted in 60.

2. Accepted in 60-61.

3. Accepted in 62, 64 and 71.

4. Accepted in 62-63 and 71.

5. Accepted in 66, 71 and hereby accepted.

6. Accepted in 67.

7. Accepted in 71.

Marine's Proposed Findings of Fact

1. Accepted in 4.

2. Accepted in 2.

3. Accepted in 3.

4. Accepted in 1 and 9.

5. Not supported by the weight of the evidence.

6. Accepted in 10.

7. Conclusion of law.

8. See 11.

9. See 12.

10. Accepted in 4-5 and 13.

11. Accepted in 23.

12. Accepted in 16.

13. Accepted in 17.

14-15 Accepted in 67.

1. Accepted in 14.

2. Accepted in 13.

3. Accepted in 15.

4. Accepted in 24-25.

5. Accepted in 29.

21-22 Hereby accepted.

1. See 12.

2. Accepted in 12.

3. Accepted in 30.

4. Accepted in 31.

5. Accepted in 32.

6. Accepted in 24.

7. Accepted in 44.

8. Accepted in 41.

9. Accepted in 39 and 45.

10. Accepted in 39 and hereby accepted.

11. Accepted in 40.

12. Accepted in 37 and 40.

13. Accepted in 36.

14. See 42.

37-38 Not relevant.

39 Accepted in 44.

40-41 Accepted in 43.

1. Hereby accepted.

2. See 53.

3. Accepted in 46-48.

4. Accepted in 48.

5. Hereby accepted. See 51-54.

6. Accepted in 48.

7. Accepted in 53-54.

8. Accepted in 55.

9. Accepted in 56.

10. Accepted in 60-61.

11. Accepted in 59-60.

12. Accepted in 63-65.

13. Hereby accepted.

55-56 Accepted in 59-60.

1. Accepted in 70.

2. Accepted in 62 and 71. 59-60 Accepted in 61.

1. Hereby accepted.

2. Accepted in 67.

COPIES FURNISHED:

Joseph H. Serota, Esquire Stephen J. Helfman, Esquire WEISS, SEROTA & HELFMAN, P.A.

2665 South Bayshore Drive Suite 204

Miami, Florida 33133

Karen Brodeen, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Craig H. Coller, Esquire Metropolitan Dade County Stephen P. Clark Center Suite 2810

111 N.W. 1st Street

Miami, Florida 33128-1993

Clifford A. Schulman, Esquire Kerri L. Barsh, Esquire

1221 Brickell Avenue

Miami, Florida 33131

James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Suite 100

Tallahassee, Florida 32399-2100

Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325-A

Tallahassee, Florida 32399-2100

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 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.

* Recommended Order originally mailed undated.

Corrected signature page mailed August 1, 1996.

** "Underlined words" in original Recommended Order text.

Docket for Case No: 95-000250GM

Orders for Case No: 95-000250GM