STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SUNSHINE RANCHES ) HOMEOWNERS ASSOCIATION, INC.; ) CHARLES F. SKIP; JEFFREY ) PRICE; and ANTHONY E. COULSON, )

)

Petitioners, )

)

vs. ) Case No. 96-5558GM

)

CITY OF COOPER CITY, )

)

Respondent, )

)

and )

)

GEORGE H. LANGE, TRUSTEE, )

)

Intervenor. )

)

RECOMMENDED ORDER

A formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on January 15 and 16, 1997, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Richard Grosso, General Counsel

ENVIRONMENTAL and LAW USE LAW CENTER, INC.

Civil Law Clinic

Shepard Broad Law Center Nova Southeastern Center 3305 College Avenue

Fort Lauderdale, Florida 33314 For Respondent: Alan Ruf, City Attorney

City of Cooper City

9090 Southwest 50th Place Cooper City, Florida 33328

For Intervenor: Richard G. Coker, Jr., Esquire

BRADY and COKER

1318 Southeast 2nd Avenue

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUE

The issue in this case is whether a small scale amendment to the Cooper City comprehensive plan adopted pursuant to Section 163.3187(1)(c), Florida Statutes, is "in compliance."

PRELIMINARY STATEMENT

On or about October 22, 1996, Respondent, the City of Cooper City, adopted L.L.U.P.A. 96-S-1, an amendment to the Cooper City Land Use Plan. On November 21,1996, Petitioners, The Sunshine Ranches Homeowners Association, Inc., Charles F. Seip, Jeffrey Price, and Anthony E. Coulson, filed a Petition for Formal Administrative Hearing challenging the amendment pursuant to Section 163.3187(3)(a), Florida Statutes. The petition was designated Case Number 96-5558GM and was assigned to the undersigned.

On December 10, 1996, a Notice of Hearing was entered scheduling the formal hearing for January 15 and 16, 1997.

On December 11, 1996, a Motion to Intervene was filed by George H. Lange, Trustee. On December 19, 1996, an Order Concerning Motion to Intervene was entered. George H. Lange, Trustee, was informed that he was required to file petition to intervene on or before January 15, 1997, in order to intervene

in this case. At the commencement of the formal hearing a petition to intervene was filed. George H. Lange, Trustee, was allowed to intervene.

On December 31, 1996, Petitioners filed a Motion for Leave to Amend Petition for Formal Administrative Hearing. After hearing argument on the motion at the commencement of the formal hearing, the motion, as explained by counsel for Petitioners, was granted.

On January 13, 1997, a Prehearing Stipulation was filed by Petitioners. Among other things, the parties stipulated to certain facts and conclusions of law in the Prehearing Stipulation. Those facts and conclusions of law have been included in this Recommended Order.

At the formal hearing Petitioners presented the testimony of Sally Brokken, Joseph Caprio, Peter Ross, Christopher Clanese, and Louis Orosz. Petitioners offered 65 exhibits for identification. Petitioners' Exhibits 5, 9, 22, 23, 36, 37,

46, 47, 48, and 49 were not offered into evidence.

Petitioners' Exhibits 26, 29, 39, and 51 were accepted into evidence to the extent ultimately determined relevant and were objected to as hearsay. Petitioners' Exhibit 30 was accepted into evidence to the extent ultimately determined relevant.

Petitioners' Exhibit 40 was objected to as hearsay.

Petitioners' Exhibits 1-4, 6-8, 10-25, 27-28, 31-38, 41-50, and 53 were accepted into evidence without objection.

Respondent and Intervenor presented the testimony of Richard Rubin and Michael Woolsey. Sixteen joint exhibits were offered into evidence by Respondent and Intervenor.

Exhibits 3, 6, 7, and 14 were accepted into evidence to the extent ultimately determined to be relevant. Exhibit 14 was also objected to as hearsay. The rest of the joint exhibits were accepted into evidence.

A transcript of the formal hearing was filed on March 6, 1997. A proposed order was filed by Petitioners on April 18, hearing, the motion, as explained by counsel for Petitioners, was granted.

On January 13, 1997, a Prehearing Stipulation was filed by Petitioners. Among other things, the parties stipulated to certain facts and conclusions of law in the Prehearing Stipulation. Those facts and conclusions of law have been included in this Recommended Order.

At the formal hearing Petitioners presented the testimony of Sally Brokken, Joseph Caprio, Peter Ross, Christopher Clanese, and Louis Orosz. Petitioners offered 65 exhibits for identification.

Petitioners' Exhibits 5, 9, 22, 23, 36, 37, 46, 47, 48, and 49 were not offered into evidence. Petitioners' Exhibits

26, 29, 39, and 51 were accepted into evidence to the extent ultimately determined relevant and were objected to as hearsay. Petitioners' Exhibit 30 was accepted into evidence to the extent ultimately determined relevant. Petitioners' Exhibit 40 was objected to as hearsay. Petitioners' Exhibits 1-4, 6-8, 10-25, 27-28, 31-38, 41-50, and 53 were accepted into evidence without objection.

Respondent and Intervenor presented the testimony of Richard Rubin and Michael Woolsey. Sixteen joint exhibits were offered into evidence by Respondent and Intervenor.

Exhibits 3, 6, 7, and 14 were accepted into evidence to the extent ultimately determined to be relevant. Exhibit 14 was also objected to as hearsay. The rest of the joint exhibits were accepted into evidence.

A transcript of the formal hearing was filed on March 6,

on April 18, 1997. The proposed orders have been fully considered in preparing this Recommended Order. Proposed findings of fact have been included in this Recommended Order to the extent relevant and supported by competent substantial evidence.

FINDINGS OF FACT

1. The Parties.

   1. Petitioner, The Sunshine Ranches Homeowners Association, Inc. (hereinafter referred to as the “Homeowners Association ") is a not-for-profit corporation. The Homeowners Association has members who reside within the residential area known as Sunshine Ranches, located in Broward County. The address of the principal office of the Homeowners Association is 12400 Flamingo Road, Fort Lauderdale, Broward County, Florida. (Stipulated Facts).

   2. The Homeowners Association was formed on or about December 4, 1968.

   3. The Homeowners Association is involved in working for the betterment of residents and land owners within Sunshine Ranches to secure political, social, and economic improvement within Sunshine Ranches.

   4. Petitioner, Charles F. Seip, resides at 4661 Southwest 128th Avenue, Fort Lauderdale, Florida. Mr. Seip lives two blocks west of the parcel of property which is the subject of this proceeding. Mr. Seip has lived at his current location for 26.5 years. (Stipulated Facts).

   5. Petitioner, Anthony E. Coulson, resides at 4710 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Coulson lives approximately four blocks from the subject property. (Stipulated Facts).

   6. Petitioner, Jeffrey Price, resides at 5001 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Price lives approximately four blocks west of the subject property. (Stipulated Facts).

   7. Each Petitioner submitted oral and written objections to the City of Cooper City during the review and adoption proceedings conducted by the City of Cooper City on the adoption of the comprehensive plan amendment which is the subject of this proceeding. Petitioners submitted objections to the Cooper City Planning and Zoning Board and the City of Cooper City Commission.

   8. The parties stipulated that Petitioners are "affected persons."

   9. Respondent, the City of Cooper City (hereinafter referred to as the "City"), is a municipality of the State of Florida. The City is located in Broward County, Florida.

   10. The City is a "local government" as defined in Section 163.3164(13), Florida Statutes. The City's address is 9090 Southwest 50th Place, Cooper City, Broward County, Florida. (Stipulated Facts).

   11. Intervenor, George H. Lange, Trustee, is the representative of a trust that owns the property which is the subject of the amendment at issue in this proceeding.

2. The Amendment.

   1. By Ordinance Number 96-10-3, the City adopted an amendment, L.L.U.P.A. 96-S-1 (hereinafter referred to as the "Plan Amendment") to the Cooper City Land Use Plan. (Stipulated Facts).

   2. The Plan Amendment was adopted on October 22, 1996. (Stipulated Facts). Also adopted with the Plan Amendment was a Development Agreement establishing conditions for the development of the property which is the subject of the Plan Amendment (hereinafter referred to as the "Subject Property").

   3. The Plan Amendment was also identified as Ordinance Number PS96-15 in some notices published by the City. (Stipulated Facts).

   4. The Plan Amendment changes the land use designation of approximately 8.45 acres of land from "Estate Residential" to "Commercial" for the eastern 3.82 acres and to "Community Facility" for the western 4 acres. (Stipulated Facts).

   5. The Plan Amendment is a "small scale amendment" pursuant to Section 163.3187(1(c), Florida Statutes. Therefore, the Plan Amendment was not reviewed by the Department of Community Affairs. (Stipulated Facts).

   6. The petition challenging the Plan Amendment was filed with the Division of Administrative Hearings within 30 days of October 22, 1996, the date the Plan Amendment was adopted. (Stipulated Facts).

3. The City and Its Comprehensive Plan.

   
   

   1. The City is a relatively small municipality located in southwestern Broward County. Geographically, the City consists of approximately six-and-a-quarter square miles.

   2. The City is located directly to the east of Sunshine Ranches. The City and Sunshine Ranches are bounded on the north and south by the same roads: Griffin Road and Orange Road in the north; and Sheridan Street in the South. The western boundary of the City either abuts Sunshine Ranches or is separated by Flamingo Road.

   3. The City is bounded on the north by the Town of Davie. It is bounded on the south by Pembroke Pines.

   4. The City adopted the Cooper City Comprehensive Plan in 1991 (hereinafter referred to as the "Plan"). It consists of Volumes I, II, and III. Volume I contains the text of the Plan. Volumes II and III contain the data and analysis for the Plan.

   5. Pursuant to a Compliance Agreement entered into between the City and the Department of Community Affairs, the Plan was found to be "in compliance" as defined in Chapter 163, Part II, Florida Statutes.

4. The City's Evaluation and Appraisal Report.

   1. The City was required to submit an Evaluation and Appraisal Report to the Department of Community Affairs on or before March 11, 1996.

   2. At the time of the formal hearing of this case, the City had prepared a draft of its Evaluation and Appraisal Report. See Respondent's and Intervenor's Exhibit 5. The draft of the City's Evaluation and Appraisal Report had not, however, been filed with the Department of Community Affairs.

5. Sunshine Ranches.

   
   

   1. Sunshine Ranches is an unincorporated area of Broward County. It is generally bounded by the following roads:

      1. On the north by Orange Road and Griffin Road;

      2. On the south by Sheridan Street;

      3. On the west by Volunteer Road (148th Avenue); and

      4. On the east by Flamingo Road.

         
         

   2. Griffin Road abuts the entire length of the northern boundary of Sunshine Ranches. Orange Road is located immediately to the north of Griffin Road. The two roads are separated by a canal which runs the entire length of the northern boundary of Sunshine Ranches.

   3. The area to the north of Orange Road and Griffin Road is largely undeveloped.

   4. Flamingo Road on the eastern boundary of Sunshine Ranches is a six-lane road with a wide right-of-way. There is

      also a canal that runs the length of Flamingo Road. The canal separates Flamingo Road from Sunshine Ranches and other parcels of property located west of Flamingo Road. The right- of-way and canal are approximately 270 feet wide.

   5. The roads along the north, south, and west of Sunshine Ranches are contiguous with Sunshine Ranches' boundaries. On the east, Flamingo road is contiguous with most of Sunshine Ranches' eastern boundary. There are, however, several parcels of property located west of Flamingo Road which are a part of the City.

   6. Sunshine Ranches consists of approximately four square miles of land, or approximately 2,500 acres.

   7. Sunshine Ranches is a rural community with a significant number of small and large horse farms. There are also large homesites, the majority of which are five acres or larger. Many homesites have barns on them. A substantial number of homes in Sunshine Acres have animals, such as horses, chickens, and cows.

   8. Most of the roads in Sunshine Ranches are dirt roads. There are no sidewalks or traffic lights.

   9. There are a few fire hydrants in Sunshine Ranches.

      
      

      Most areas, however, are served by fire wells. There is a volunteer fire department consisting of two vehicles. The vehicles are leased from Broward County.

   10. Sunshine Ranches is a unique community in Broward County, both in terms of the size of lots and its rural, equestrian and agricultural character.

   11. There are signs at each entrance road into Sunshine Ranches that include the following: "Welcome to Sunshine Ranches: A Rural Estate Community."

   12. Most commercial enterprises within Sunshine Ranches are involved in equestrian-related activities. These activities consist of providing boarding facilities, riding schools, and horse training facilities. There is also a plant nursery located in Sunshine Ranches.

   13. Horses owned by non-residents of Sunshine Ranches are boarded at facilities in Sunshine Ranches. Non-residents also ride horses at facilities located in Sunshine Ranches.

   14. The land use designations for Sunshine Ranches consist of the following:

       1. "Rural Ranches," which allows one residential unit per two and one-half acres; and

       2. "Rural Estate," which allows one residential unit per one acre.

          
          

   15. The designation of Sunshine Ranches as Rural Ranches and Rural Estate was accomplished by an amendment to the Broward County comprehensive plan. It was the first area in Broward County to receive these designations. The designations resulted from a study conducted by Broward County

       to identify, preserve, and protect rural lands from urban encroachment.

   16. Property designated Rural Ranches may be used for "Community Facilities" also. Community Facilities include schools, fire stations, churches, etc. Churches require five- acre lots.

   17. There are several parcels located along Flamingo Road in Sunshine Ranches which are used by Churches. There are also schools located within Sunshine Ranches.

   18. Approximately 90% of Sunshine Ranches is designated Rural Ranches.

   19. Approximately 10% of Sunshine Ranches is designated Rural Estate. The portion of Sunshine Ranches designated Rural Estate is located along Giffin Road.

6. Commercial Activities Around Sunshine Ranches.

   
   

   1. There are only a few commercial sites located near the boundaries of Sunshine Ranches. One is located on the western boundary of Sunshine Ranches at Volunteer Road and Griffin Road. This site is located on the side of Volunteer Road opposite to Sunshine Ranches. The site is, therefore, separated from Sunshine Ranches by the road and a canal.

   2. The largest amount of commercial property in the vicinity of Sunshine Ranches is located near the eastern boundary of Sunshine Ranches and Flamingo Road.

   3. At the corner of Flamingo Road and Giffin Road, immediately across Flamingo Road from the Subject Property, is Wal-Mart Shopping Center. Abutting Flamingo Road is the parking lot for the shopping center. The shopping center is located to the east of the parking lot. The shopping center is currently separated from Sunshine Ranches by approximately 700 feet of parking lot, the six-lanes of Flamingo Road, the canal located on the west side of Flamingo Road and the Subject Property.

   4. Immediately to the south of the Wal-Mart parcel are properties designated "Low 5" and "Low-Medium 10." Both designations allow residential uses.

   5. Flamingo Road and the canal on the western side of Flamingo Road act as a buffer between the existing commercial activities on Flamingo Road and Sunshine Ranches. Flamingo Road has historically acted as a dividing line between commercial activities and Sunshine Ranches. Commercial activities have been limited to the eastern side of Flamingo Road.

   6. On the west side of Flamingo Road there are several parcels of land which have been annexed as part of the City. None of these parcels are currently approved for commercial uses, however. They are all currently designated for residential ("Estate Residential") or Community Facilities.

      Most remain undeveloped. The Estate Residential designation allows use of the property for Community Facilities.

   7. Immediately to the south of the Subject Property is a 16-acres parcel designated Estate Residential.

   8. The largest parcel of property in the City located on the western side of Flamingo Road has been developed under the name of County Glen. There are no commercial sites within County Glen. Steps were taken in developing County Glen to minimize the impact of its higher density on Sunshine Ranches. These steps included restricting the number of traffic lights within the development and a limitation on density of the lots directly abutting Sunshine Ranches to one residential unit per

      acre.

      
      

   9. Although County Glen is more urban than Sunshine

      
      

      Ranches, steps were taken to buffer Sunshine Ranches from the impact of the development, consistent with development allowed west of Flamingo Road.

7. The Need for Commercial Property in the City.

   
   

   1. Volume II of the Plan contains an analysis of the amount of commercial acreage within the City necessary to support the residents of the City.

   2. The analysis indicates that the City has one of the lowest ratios of commercial to residential acreage in Broward County. The ratio of commercial property to residential

      property was 7.2 percent. Although this ratio is lower than the ratio for Broward County, the City and the Department of Community Affairs agreed that the Plan, including the amount of acreage designated for commercial use, was "in compliance." The City has not amended its Plan to change this ratio.

   3. The City has adopted two Plan amendments reducing the amount of acreage in the City designated "Commercial" under the Plan. One amendment involved approximately 14.4 acres. The evidence failed to prove the size of the other parcel.

   4. Currently, there are a number of parcels of land designated Commercial under the Plan which are vacant. One is known as the Transflorida Bank Plaza. It is located to the east of the Subject Property at the corner of Griffin Road and 100th Avenue. The property was formerly a Winn Dixie Supermarket. Part of the property is still used for commercial uses.

   5. Another vacant commercial parcel is located on Pine Island Road across from David Poenick Community Center. This parcel is 6.5 acres. The City has approved use of this property for a 55,000 square-foot Albertson's.

   6. Another vacant commercial parcel is located on Stirling Road across from the Cooper City High School.

   7. On the east side of Flamingo Road, between Stirling Road and Giffin Road, there is a shopping center known as Countryside Shops. There are vacant parcels to the south and north of this property which could be used for commercial purposes.

   8. Finally, there are other vacant commercial parcels located in the central part of the City.

   9. The location of commercial property is an important factor in determining whether the property will actually be used. Therefore, the fact that there are vacant commercial properties located in the City fails to prove that there is not a need for the total amount of property designated Commercial under the Plan.

   10. Overall, the City has reduced the amount of property designated Commercial under the Plan. The amount of land being classified as Commercial pursuant to the Plan Amendment will not increase the amount of property originally designated Commercial pursuant to the Plan.

   11. The "Industrial" land use designation under the Plan allows some uses which may be considered commercial. This was true when the Plan was found to be in compliance, however, and the amount of land designated Commercial was still approved.

   12. The evidence failed to prove that the amount of property designated Commercial, including the portion of the

       property being designated Commercial pursuant to the Plan Amendment, is not supported by the data and analysis that supported the amount of commercial property found to be in compliance under the Plan when it was adopted.

   13. In light of the fact that the City has not submitted its Evaluation and Appraisal Report to the Department of Community Affairs for review as required by Section 163.3191, Florida Statutes, the amount of property designated Commercial in the originally approved Plan should not be relied upon to support the Plan Amendment. While the draft of the Evaluation and Appraisal Report prepared by the City indicates a need for additional commercial acreage in the City, the Department of Community Affairs has not reviewed the report. Nor has the City amended the Plan "based on the recommendations contained in the adopted evaluation and appraisal report "

       Section 163.3191 (4), Florida Statutes.

       
       

8. The Subject Property and the Impact of the Plan Amendment.

1. The Subject Property is currently classified as "Estate Residential" in the Plan. This classification allows the use of the Subject Property for residential purposes.

2. The Subject Property is located at the southwestern corner of Flamingo Road and Griffin Road. It is located on the west of Flamingo Road.

3. The Subject Property abuts the northeastern corner of Sunshine Ranches.

4. Under the Plan Amendment, the eastern approximately four acres of the Subject Property will be designated Commercial (hereinafter referred to as the "Commercial Property"). This will be the first property on the west side of Flamingo Road designated for commercial uses.

5. The Commercial Property will be separated from Sunshine Ranches by the remaining 3.82 acres of the Subject Property. This portion of the Subject Property will be designated Community Facilities (hereinafter referred to as the "Community Facilities Property").

6. The Subject Property abuts an area of Sunshine Ranches which consists of Rural Estate property. This designation makes up approximately 10 percent of the property in Sunshine Ranches.

7. The Plan Amendment allows stormwater facilities required for the Commercial Property and the Community Facilities Property to be located on the Community Facilities Property.

   I. Compatibility of Land Classifications with Surrounding

   Classifications; The Impact of the Plan Amendment on Sunshine Ranches.

8. Policy 1.1.3 of the Plan provides that the compatibility of a proposed land use with existing land uses is a primary consideration in determining whether a land use should be allowed.

9. Residential and commercial land uses are not inherently compatible. Despite this fact, residential and commercial land uses often abut each other. Where this occurs, steps can be taken to minimize the negative impact of the commercial use of property on the residential use of adjoining property.

10. Flamingo Road and the adjacent canal provide a good boundary and buffer between rural Sunshine Ranches and the urbanized area of the City. The Plan recognizes this fact by requiring that the City conduct a study of the application of an urban growth boundary line for areas of the City located west of Flamingo Road.

11. Regardless of the size of the Commercial Property, the designation of the Commercial Property for commercial uses would be the first commercially authorized use of property west of Flamingo Road or inside any of the other boundary roads of Sunshine Ranches.

12. Comparing the uses allowed on the Commercial Property with the uses of property in Sunshine Ranches, it is evident that the uses are not compatible. This conclusion,

    however, does not necessarily mean that the City's approval of the Commercial Property for commercial uses is not "in compliance."

13. Although the uses allowed on the Commercial Property and in Sunshine Ranches are incompatible, there are steps which can be taken to minimize the negative impacts which occur when commercial activities approach residential activities.

14. One of those steps was taken when the City approved the Plan Amendment with the Community Facilities Property located between the Commercial Property and Sunshine Ranches. The Community Facilities Property, in conjunction with other measures, can be an effective buffer between the Commercial Property and Sunshine Ranches.

15. The Development Agreement adopted by the City was adopted, in part, to address compatibility concerns. The Development Agreement eliminates various uses of the Commercial Property which would otherwise be allowed by the City's zoning for commercial parcels.

16. The Development Agreement also provides that the Community Facilities Property will be dedicated to community facilities uses once the development of the Commercial Property is approved.

17. The Development Agreement also includes certain development standards and requirements intended to reduce the impact on Sunshine Ranches due to incompatibility, such as requiring berms and landscaping to buffer the Subject Property from Sunshine Ranches. Horse trails along the Subject Property are to be included in the development.

18. Land development regulations will require that steps be taken in the development of the Subject Property to reduce the negative impact on adjoining property, including Sunshine Ranches.

19. The designation of the Commercial Property for commercial uses could, however, have a "domino affect" on other property located west of Flamingo Road. Once one parcel is approved, it will be difficult for the City not to approve similarly situated parcels.

20. The Plan Amendment will increase the expectation of others who own property west of Flamingo Road that the land- use designation of their property can be changed to Commercial.

21. The evidence, however, failed to prove that there are other parcels of property located west of Flamingo Road which are sufficiently similar to the Subject Property that they would be allowed to be used for commercial purposes.

22. The evidence also failed to prove that any parcels of property located west of Flamingo Road which may be considered in the future for commercial uses cannot have conditions imposed on their use for commercial purposes which will adequately protect Sunshine Ranches from an incompatible

    use.

    
    

23. The Plan Amendment could also negatively impact the

    
    

    ability to use adjoining property for residential purposes. In particular, the sixteen-acre parcel located immediately to the south of the Subject Property will more difficult to develop as residential if the Plan Amendment is approved.

24. The evidence failed to prove, however, that with effective buffering adjoining property cannot be used for residential purposes.

25. The evidence failed to prove that, with proper measures to reduce the impacts of the development on the Subject Property on Sunshine Ranches, the development of the Subject Property allowed by the Plan Amendment would necessarily be incompatible with Sunshine Ranches.

26. The evidence failed to prove that the uses allowed for the Community Facilities Property are incompatible with the uses allowed in Sunshine Ranches.

    1. The Availability of Infrastructure.

27. The evidence failed to prove that the Plan Amendment is not in compliance due to the lack of available vehicle trips on roads that would be impacted by development of the Subject Property. This issue, which involves the question of whether development of the Subject Property is consistent with relevant transportation levels of service, is one that should be considered at the time a development order is sought. It is not an issue for consideration in determining whether a land use designation amendment is in compliance.

28. The same conclusion applies to other services such as sewer and water, which currently are available for the Subject Property.

    1. Urban Sprawl, the State and Regional Plan, Internal Inconsistency, and Inconsistency with the Broward County Comprehensive Plan.

       
       

29. The evidence failed to support allegations concerning urban sprawl, the state and regional plans, internal inconsistencies, and inconsistencies with the Broward County comprehensive plan.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction and Burden of Proof.

    
    

30. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Sections 120.57 and 163.3187, Florida Statutes (1996 Supp).

31. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in a proceeding before the Division of Administrative Hearings. Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Flat 5th DCA 1988); Department of Transportation

    v. J.W.C. Co., Inc., 396 So. 2d 778 (Flat 1st DCA 1981); and

    
    

    Balino v. Department of Health and Rehabilitative Services,

    
    

    348 So. 2d 249 (Flat 1st DCA 1977). It is the Petitioners that are asserting the affirmative in this proceeding.

32. This proceeding was instituted pursuant to Section 163.3187(3), Florida Statutes. Section 163.3187(3)(a), Florida Statutes, places the burden of proof on Petitioners:

    In the proceeding, the local government's determination that the small scale development is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of this act. . . .

    
    

    1. Standing.

       
       

33. In order to have standing to institute a proceeding under Section 120.57, Florida Statutes, a party must be "substantially affected":

    Standing under the Administrative Procedure Act (APA) is conferred on persons whose substantial interest will be affected by proposed agency action. Aqrico Chemical Co. v. Department of Environmental Protection,

    406 So.2d 478 (Flat 2nd DCA 1981), rev.

    denied, 415 So.2d 1359 (Fla 1982), and 415 So.2d 1361 (Flat 1982). . . .

    
    

    A party seeking to show a substantial injury must demonstrate

    
    

    1. that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of the type or nature which the proceeding is designed to protect.

    
    

    Aqrico, supra at 482. Florida Society of Ophthalmology v. State Bd. Of Optometry, 532 So.2d 1279 (Flat 1st DCA 1988), rev. denied, 542 So.2d 1333 (Flat 1989).

    
    

    Friends of the Everglades, Inc. v. Board of Trustees of the

    
    

    Internal Improvement Trust Fund, 595 So. 2d 186, 188 (Flat 1st DCA 1992).

34. Section 163.3187(3)(a), Florida Statutes, allows an "affected person" to file a petition challenging a small development activity plan amendment such as the Plan Amendment.

35. It does not appear that the definition of "affected person" contained in Section 163.3184(1)(a), Florida Statutes, applies to this matter. That definition specifically applies "[a]s used in this section . . . .' Therefore, the definition applies to Section 163.3184, Florida Statutes, but not Section 163.3187(3), Florida Statutes.

36. Section 163.3187(3)(a), Florida Statutes, provides that the parties "shall be the petitioner, the local government, and any Intervenor."

37. The parties stipulated that Petitioners have standing to institute this proceeding. The evidence supported this stipulation.

38. The evidence also proved that the City and Intervenor have standing to participate in this proceeding

    1. Adoption of the Plan Amendment Prior to Submittal of the City's Evaluation and Appraisal Report.

       
       

39. Section 163.3187(6), Florida Statutes, provides the following concerning the adoption of plan amendments:

    (6) No local government may amend its comprehensive plan after the date established by rule for submittal of its evaluation and appraisal report unless it has submitted its report or addendum to the state land planning agency as prescribed by

    1. 163.3191, except for:

       1. Plan amendments to implement recommendations in the report or addendum.

       2. Plan amendments described in paragraph (l)(b).

       3. Plan amendments described in s. 163.3184(16)(d) to implement the terms of compliance agreements entered into before the date established for submittal of the report or addendum.

    
    

40. The City was required to submit its evaluation and appraisal report before it adopted the Plan Amendment. The Petitioners attempted to stipulate that they would not raise this issue except to the extent that they intended to argue

    that data and analysis do not exist which support the Plan Amendment; and the evaluation and appraisal report, which could have provided such data and analysis, has not done so.

41. While it was agreed that this matter would go forward to final hearing on the question of whether the Plan Amendment is "in compliance," the parties were informed that it was possible that the undersigned would be compelled to deal with the issue of the failure to prepare an evaluation and appraisal report regardless of the agreement of the parties. The parties were, therefore, invited to address the issue further in their proposed orders.

42. Although the parties did not address this issue in any detail in their proposed orders, it is concluded that the failure to file an evaluation and appraisal report is dispositive of this case. The Plan Amendment has been adopted by the City in violation of the prohibition of Section 163.3187(6), Florida Statutes, that no local government's comprehensive plan may be amended after the date that local government is required to submit its evaluation and appraisal report.

    1. Is the Plan Amendment "In Compliance"?

       
       

43. Despite the foregoing conclusion, the issue of whether the Plan Amendment is "in compliance" will be considered. Whether the Plan Amendment is "in compliance" is

    the ultimate issue to be decided under Section 163.3187(3)(a), Florida Statutes.

44. The terms “in compliance" are defined in Section 163.3184(1)(b), Florida Statutes:

    (b) "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, and 163,3191, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with chapter 163, part II.

    
    

45. The Petitioners have argued that the Plan Amendment is not "in compliance" for a number of reasons:

    1. There is inadequate need for additional commercial acreage in the City;

    2. The Plan Amendment is incompatible with adjacent land uses;

    3. There is a lack of existing transportation, water, and sewer services in the City to support the Plan Amendment;

    4. The Plan Amendment allows urban sprawl;

    5. The Plan Amendment is inconsistent with the state plan and the regional plan;

    6. The Plan Amendment is internally inconsistent with other provisions of the Plan; and

    7. The Plan Amendment is inconsistent with the Broward County comprehensive plan.

       
       

46. The evidence failed to support the allegations concerning the lack of services, urban sprawl, the state and regional plans, internal inconsistencies, and inconsistencies with the Broward County comprehensive plan.

    1. The Need for Additional Commercial Acreage.

47. Petitioners have argued that there is inadequate data and analysis in support of the addition of the Commercial Property to the amount of acreage in the Plan designated Commercial. Such data and analysis is required by Section 163.3177(6)(a), Florida Statutes. See also Rule 9J- 5.006(2)(c), Florida Administrative Code.

48. Section 163.3177(6)(a), Florida Statutes, requires that future land uses such as those provided in the Plan Amendment must be allocated 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 the undeveloped land; the availability of public services; and the need for redevelopment."

49. The evidence in this case proved that the total amount of commercial acreage in the City has not been increased over the amount of commercial acreage originally found to be in compliance by the Department of Community Affairs when the Plan was adopted. Therefore, there is sufficient data and analysis contained in the Plan to support this Plan Amendment.

50. The problem with the foregoing conclusion, however, is that the City should have prepared and submitted its evaluation and appraisal report to the Department of Community

    Affairs and has not done so. Section 163.3191, Florida Statutes, establishes the requirement for evaluation and appraisal reports:

    1. The planning program shall be a continuous and ongoing process. The local planning agency shall prepare periodic reports on the comprehensive plan, which shall be sent to the governing body and to the state land planning agency at least once every 5 years after the adoption of the plan. . . .

       
       

51. One purpose for the evaluation and appraisal report is to require that local governments determine whether changes in conditions, including applicable laws, necessitate changes in their comprehensive plan:

    It is the intent of this act that adopted comprehensive plans be periodically updated as provided by this section through the evaluation and appraisal report. The evaluation and appraisal report process shall be the principal process for updating local comprehensive plans to reflect changes in state policy on planning and growth management.

    
    

    1. The report shall present an assessment and evaluation of the success or failure of the comprehensive plan, or element or portion thereof

    
    

52. The evaluation and appraisal report is also required to "suggest changes needed to update the comprehensive plan, or elements or portions thereof . . . ." Section 163.3191(3), Florida Statutes.

53. Finally, of importance in this proceeding, local governments are "encouraged to use the report process to develop a local vision that could serve as one basis for revision of the local comprehensive plan consistent with the requirements of this act.”

54. If the City had complied with the requirements of Section 163.3191, Florida Statutes, it is possible that the data and analysis contained in the original Plan to support the amount of commercial acreage in the City would be determined to no longer be valid, or that revision of the data and analysis is required. The City's findings with regard to commercial acreage could require an amendment to the Plan increasing or decreasing the amount of commercial acreage allowed in the City.

55. Due to the failure of the City to submit an evaluation and appraisal report as required, the data and analysis contained in the Plan should not be relied upon to support this Plan Amendment. Until the evaluation and appraisal report is submitted and reviewed under Section 163.3191, Florida Statutes, it cannot be concluded that the increase in commercial acreage allowed by the Plan Amendment is supported by data and analysis.

    1. Incompatibility with Adjacent Land Uses.

56. The evidence failed to prove that the Plan Amendment is so incompatible with adjacent land uses that it is inconsistent with the pertinent statutes and rules governing this matter.

57. The Plan Amendment involves a future land use modification. It allows commercial use of a parcel of property immediately adjacent to a parcel that is being classified as Community Facilities to the west, and an undeveloped parcel of property to the south which is designated for residential uses.

58. Conditions have been imposed upon the development of the Subject Property designed to reduce impacts on Sunshine Ranches. Additional requirements may be imposed by land development regulations.

59. The evidence failed to prove that the ultimate development of the Subject Property cannot be accomplished in a manner that will buffer surrounding residential parcels from the negative impacts of the commercial use of the Commercial Property.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Administration Commission finding the Plan Amendment is

invalid because it was adopted in violation of Section 163.3187(6), Florida Statutes, and is not "in compliance."

DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1997.

COPIES FURNISHED:

Richard Grosso, General Counsel Scott SznitRen, Certified Law Intern

ENVIRONEMENTAL and LAW USE LAW CENTER, INC.

Civil Law Clinic

Shepard Broad Law Center Nova Southeastern Center 3305 College Avenue

Fort Lauderdale, Florida 33314

Alan Ruf, City Attorney City of Cooper City

9090 Southwest 50th Place Cooper City, Florida 33328

Richard G. Coker, Jr., Esquire BRADY and CORER

1318 Southeast 2nd Avenue

Fort Lauderdale, Florida 33316

Barbara Leighty, Clerk Administration Commission

Growth Management and Strategic Planning

2105 Capitol

Tallahassee, Florida 32399

Gregory Smith, Esquire Administration Commission

209 Capitol

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-005558GM

Orders for Case No: 96-005558GM