STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE DURHAM PARK NEIGHBORHOOD ) ASSOCIATION, INC.; THE MIAMI ) RIVER MARINE GROUP; and HERBERT ) PAYNE; )
)
Petitioners, )
)
vs. )
)
CITY OF MIAMI, )
)
Respondent, )
)
and )
) RIVERSIDE 22 INVESTMENTS, LLC, )
)
Intervenor. )
Case No. 06-0759GM
)
RECOMMENDED ORDER
Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, J. Lawrence Johnston, on June 13-15, 2006, in Miami, Florida.
APPEARANCES
For Petitioners: Andrew W. J. Dickman, Esquire
Law Offices of Andrew Dickman, P.A. Post Office Box 771390
Naples, Florida 34107-1390
For Respondent: Rafael Suarez-Rivas, Esquire
Assistant City Attorney
444 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130-1910
For Intervenor: Paul R. Lipton, Esquire
Pamela A. DeBooth, Esquire Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131-3224
David C. Ashburn, Esquire Greenberg Traurig, P.A. Post Office Box 1838
Tallahassee, Florida 32302-1838 STATEMENT OF THE ISSUE
The issue is whether the City of Miami's small scale development amendment adopted by Ordinance No. 12761 on January 31, 2006, is in compliance.
PRELIMINARY STATEMENT
On January 31, 2006, Respondent, City of Miami (City), adopted a small-scale plan amendment (Ordinance 12761), which changed the future land use designation on the City's Future Land Use Map (FLUM) on a parcel of property less than ten acres in size from Industrial to Commercial Restricted. The parcel is located on the Miami River at 2215 Northwest 14th Street, Miami, Florida. The amendment was adopted under the procedure described in Section 163.3187, Florida Statutes (2005).1
On March 2, 2006, Petitioners, The Durham Park Neighborhood Association, Inc. (DPNA), The Miami River Marine Group, Inc. (MRMG), and Herbert Payne (Payne) filed their Petition Challenging Compliance of a Small-Scale Comprehensive Plan Amendment with the Florida Growth Management Act (Petition). On
March 8, 2006, Intervenor, Riverside 22 Investments, LLC (Riverside), the owner of the parcel in question, filed its Petition to Intervene in support of the challenged amendment, which was granted. By Notice of Hearing dated March 23, 2006, a final hearing was scheduled for June 13-16, 2006, in Miami, Florida.
On April 18, 2006, Petitioners filed a Motion for Leave to Amend Petition. On April 25, 2006, the City and Intervenor filed a Joint Response in opposition and Joint Motion to Strike. During a telephonic hearing held on April 27, 2006, oral argument was heard, and Petitioners were given until May 3, 2006, to file a response to the Joint Motion to Strike, which they did on May 4, 2006. Based on the written and oral arguments, an Order Granting Leave to Amend but Striking Portions of Amended Petition was entered on May 24, 2006, which struck the references to Rule Chapter 9J-11 in Amended Petition
¶¶ 1, 19, 30, and 83, and Amended Petition ¶¶ 56 f., g., p., q., r., and s., 62 c., e., f., and k., 67 a., and 69 c. and d.; however, allegations pertaining to land development regulations, development orders, and zoning issues were not stricken to the extent that they "may be relevant to Petitioners' allegation that the FLUM amendment is inconsistent with the City's comprehensive plan as a whole." As a result, the only
Comprehensive Plan goals, objectives and policies remaining for consideration were the following: Goal LU-1(1); Goal LU-1(3); Goal LU-1(4); Policy LU-1.1.1; Policy LU-1.1.2; Policy LU- 1.1.10; Objective LU-1.2; Objective LU-1.3; Policy LU-1.3.6; Objective LU-1.5; Objective LU-1.6; Policy LU-1.6.1; Policy LU- 1.6.4; Goal PA-3; Objective PA-3.1; Policy PA-3.1.1; Policy PA- 3.1.2; Policy PA-3.1.3; Objective PA-3.2; Policy PA-3.2.1; Objective PA-3.3; Policy HO-1.1.9; Policy HO-2.1.4; Goal TR-1; Policy TR-1.1.1; Policy TR-1.5.10; Objective NR-3.2; Policy NR- 3.2.1; Policy NR-3.2.2; Policy NR-3.2.3; Goal CM-4; Objective CM-4.1; Policy CM-4.1.5; Objective NR-1.3; Objective PW-1.2; Policy PW-1.2.1; and Policy CI-1.2.3. In addition, the ruling noted "that Petitioners could become estopped from making some other allegations by a final order adopting the Recommended Order in Payne, et al. v. City of Miami, et al., DOAH Case No. 04-2754GM [entered May 16, 2006, which ruled that all such allegations were irrelevant regardless of the allegation that the FLUM amendment in that case was inconsistent with the City's comprehensive plan as a whole.]"
On May 19, 2006, Petitioners' Motion to Continue Final Hearing, which the other parties opposed, was denied. On June 7, 2006, the parties filed a Pre-Hearing Stipulation.
At the final hearing, Petitioners presented the testimony of Lourdes Slazyk, assistant director of the City Planning Department; Gerry Cafiero, a marine engineer and seaport consultant; Jack Luft, a land use planner; Horacio S. Aguirre, president of DPNA; Herbert Payne, a tugboat captain on the Miami River; Fran Bohnsack, executive director of the Miami River Marine Group, Inc.; and Brett Bibeau, managing director of the Miami River Commission. Also, they offered Petitioners' Exhibits 1-7, 13-16, 18-19, 20(a.-n.), 26-28, 31, 32, 35, 38
(a.-c.), 41-43, 47, 50, 53, 56, 60, 61 (a.-b.), 62-64, and 70.
Most were received in evidence (Petitioners' Exhibits 32 and 64 as to the maps, only); but objections to Petitioners' Exhibits 35, 38(a.), 47, and 53 were sustained, and ruling was reserved on objections to Petitioners' Exhibits 38(c.), 50, and 70. It is now ruled that the objections to Petitioners' Exhibits 50 and
70 are sustained; but the objections to Petitioners' Exhibit 38(c.) are overruled, and that exhibit is admitted in evidence. The City and Intervenor jointly re-called Lourdes Slazyk, assistant director of the City Planning Department. Also, Intervenor offered Intervenor's Exhibits 2 and 41, and both were received in evidence. It also was agreed during the final hearing that the parties would supplement the evidentiary record by submitting, as a Joint Exhibit, City of Miami Resolutions 02-
1319, 02-1320, and 02-1320, which document the City's action on Petitioners' Exhibit 1, the Miami River Corridor Urban Infill Plan (UIP). Intervenor filed the Joint Exhibit on June 28, 2006.
Also on June 28, 2006, Intervenor gave notice of the Final Order entered on June 21, 2006 by the Department of Community Affairs (DCA) in Payne, et al. v. City of Miami, et al., DOAH Case No 04-2754GM, which largely adopted the Recommended Order, including the ruling that allegations pertaining to land development regulations, development orders, and zoning issues were irrelevant and should be stricken.
A Transcript of the hearing (five volumes) was filed on June 30, 2006. Proposed recommended orders (PROs) were due no later than July 10, 2006. Respondent and Intervenor timely- filed a Joint PRO; Petitioners filed a PRO on July 11, 2006.
Without objection, both PROs have been considered in the preparation of this Recommended Order.
On July 12, 2006, Petitioners filed: a Request for Administrative/Judicial Notice of transcripts of a Planning Advisory Board public hearing for a proposed "Coastal on the River" project on the subject site held on June 15, 2005; and a Request for Administrative/Judicial Notice of the City of Miami Zoning Ordinance Article 25, "Definitions," particularly the
definition of "commercial marina." On July 13, 2006, Respondent and Intervenor filed a joint response in opposition to the requests. Based on the filings, the requests are denied.
Also on July 13, 2006, Petitioners filed responses to the DCA Final Order in Case No. 04-2754GM (pointing out that the time for appeal does not expire until July 21, 2006) and to the Joint Exhibit (further arguing the significance of the evidence).
FINDINGS OF FACT
Based upon all of the evidence, the following findings of fact are determined:
Background
Intervenor submitted an application to the City for an amendment to the FLUM which would change the land use designation on less than ten acres of property from Industrial to Restricted Commercial. The property is located at 2215 Northwest 14th Street, Miami, on the south side of the Miami River, which is its border to the north. To the immediate east is Northwest 22nd Avenue, which bridges the river, and to the immediate west is Industrial property. To the immediate south is a strip of General Commercial property, with medium density multi-family residential to the south of the General Commercial. Across Northwest 22nd Avenue from Intervenor's is more
Industrial property along the river and Durham Park's single- family residential use to the south of the Industrial property and to the east of Durham Park (across Northwest 22nd Avenue). At one time, Intervenor's property was used by Coastal Tug and Barge. In recent years, the property was sold, its marine industrial use was discontinued, and Intervenor purchased the property with the intention of putting it to a different use.
The application was submitted concurrently with applications for a zoning change and for a major use special permit (MUSP) in connection with Intervenor's intent to develop a mixed use project on the property.
The applications were reviewed by the City's Planning and Zoning Department (Planning Department). The Planning Department recommended that the applications be approved. In doing so, it determined that the land use change furthers the objectives of the Plan, and that the land use pattern in the neighborhood should be changed.
On June 15, 2005, the City Planning Advisory Board (PAB, the local planning agency, or LPA) voted in favor of recommending approval of the application.
On January 26, 2006, the City Commission (Commission) voted to approve the FLUM, zoning, and MUSP applications. The
FLUM change was adopted by Ordinance 12761, which was signed by the Mayor on January 31, 2006.
Because the amendment is a small scale development amendment under Section 163.3187(1)(c), Florida Statutes, it was not reviewed by the Department. See § 163.3187(3)(a), Fla. Stat.
On March 2, 2006, Petitioners filed their Petition challenging the FLUM amendment generally alleging that the amendment was internally inconsistent with other provisions in the City's Plan, that the amendment was not supported by adequate data and analysis, and that the FLUM amendment was not "in compliance" for a variety of other reasons.
The Parties
DPNA is a non-profit corporation comprised of homeowners, residents, and businesses in the Durham Park neighborhood, which lies on the south side of the Miami River to the east of the Intervenor's property. DPNA's president, Horacio Aguirre, emphasized that it is not a homeowner or property owner association. Membership is optional, no dues are assessed, and no list of members or other records are maintained. At the hearing, Mr. Aguirre acknowledged that DPNA is not engaged in any business and does not own any property. Although its corporate purpose is not of record, DPNA
occasionally meets to discuss issues that "impact the neighborhood," such as traffic, flooding, beautification of the neighborhoods, overbuilding of condo towers near the neighborhood along the river, including the FLUM amendment being challenged here. DPNA holds meetings at neighborhood homes or in local restaurants, including an annual meeting, No minutes of meetings are kept. DPNA files the annual corporation report required by law. Occasionally, DPNA publishes a newsletter or flyer. Mr. Aguirre appeared before the City Commission on behalf of DPNA and offered comments in opposition to the FLUM Amendment.
Mr. Payne owns and operates a tug boat company named P & L Towing and Transportation, which is located in the Lower River portion of the Miami River. Mr. Payne commented in opposition to the plan amendment at the PAB meeting on June 15, 2005. He also commented in opposition to the plan amendment during a hearing before the Miami River Commission, and the minutes of the meeting, which reflect his comments, were forwarded to the City and made part of the package of information considered by the Commission during the adoption hearing.
MRMG is a private, non-profit trade association comprised of shipping companies, tugboat businesses,
environmental cleanup, and other individuals in private business. Some members own and operate businesses on the Miami River, both in the City and in the County. Its mission "is to protect the working river." Its executive director, Fran Bohnsack, appeared before the City Commission on behalf of her association and offered comments in opposition to the proposed amendment.
The City is a political subdivision of the State of Florida. It initially adopted the Plan in 1989. The Plan has been amended from time to time.
As indicated, Intervenor is the owner of the subject property. Riverside submitted comments concerning the amendment at the City Commission meeting at which the FLUM amendment was adopted.
FLUM Amendment
The FLUM Amendment changes the land use designation applicable to the Subject Property from “Industrial” to “Restricted Commercial.”
The section of the Plan entitled "Interpretation of the Future Land Use Plan Map," at pp. 13-16, describes the various land use categories in the Plan. It describes the Industrial land use category as follows:
Industrial: The areas designated as "Industrial" allow manufacturing, assembly
and storage activities. The "Industrial" designation generally includes activities that would otherwise generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact unless properly controlled. Stockyards, rendering works, smelting and refining plants and similar activities are excluded. Residential uses are not permitted in the "Industrial" designation, except for rescue missions, and live-aboards in commercial marinas.
The section also describes the "General Commercial" land use classification as follows:
General Commercial: Areas designated as "General Commercial" allow all activities included in the "Office" and the "Restricted Commercial" designations, as well as wholesaling and distribution activities that generally serve the needs of other businesses; generally require on and off loading facilities; and benefit from close proximity to industrial areas. These commercial activities include retailing of second hand items, automotive repair services, new and used vehicle sales, parking lots and garages, heavy equipment sales and service, building material sales and storage, wholesaling, warehousing, distribution and transport related services, light manufacturing and assembly and other activities whose scale of operation and land use impacts are similar to those uses described above. Multifamily residential structures of a density equal to R-3 or higher, but not to exceed a maximum of 150 units per acre, are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the
adjacent area to accommodate the needs of potential residents. This category also allows commercial marinas and living quarters on vessels for transients.
Finally, the section describes the "Restricted Commercial" land use category as follows:
Restricted Commercial: Areas designated as "Restricted Commercial" allow residential uses (except rescue missions) to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions; any activity included in the "Office" designation as well as commercial activities that generally serve the daily retailing and service needs of the public, typically requiring easy access by personal auto, and often located along arterial or collector roadways, which include: general retailing, personal and professional services, real estate, banking and other financial services, restaurants, saloons and cafes, general entertainment facilities, private clubs and recreation facilities, major sports and exhibition or entertainment facilities and other commercial activities whose scale and land use impacts are similar in nature to those uses described above, places of worship, primary and secondary schools. This category also includes commercial marinas and living quarters on vessels as permissible.
According to the Interpretation of the Future Land Use Plan Map, p. 13, par. 4, the Plan is based on a pyramid structure. That is, each land use classification permits all land uses within previously listed categories, except as otherwise specifically provided in the Plan. Therefore, with
the exception of residential uses, all uses permitted under the Restricted Commercial designation are permitted under the Industrial classification.
The Restricted Commercial category is a logical designation for the property because of its proximity to residential neighborhoods. Those residential properties would clearly be more detrimentally affected by industrial activities that may generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact, which are now authorized under the Industrial designation.
The Miami River
The Miami River runs northwest to southeast for more than five miles from the Miami International Airport to Biscayne Bay (the mouth of the River). For planning purposes, it includes three sections: the Upper River, the Middle River, and the Lower River. Although the demarcations of those sections have been in dispute, the best evidence of the appropriate demarcations of the three sections is found in the Miami River Master Plan (MRMP), which was adopted by the City in 1992. This was the finding and conclusion in the Final Order entered in Case No. 04-2754GM.
The MRMP clearly depicts the geographic scope of the Mid-River (or Middle River) as extending west to Northwest 27th Avenue and the Up River (or Upper River) as being that portion of the Miami River lying west of Northwest 27th Avenue. Based on these demarcations, the Lower River would run from the mouth of the Miami River to the 5th Street Bridge, the Middle River from the 5th Street Bridge to Northwest 27th Avenue, and the Upper River from Northwest 27th Avenue westward. Using these demarcations, Intervenor's property is located in the Middle River.
Aside from disputing the proper boundaries of the Middle River, the parties agree that Restricted Commercial is a reasonable land use designation for the Middle River. Petitioners' expert witness also agreed that the Middle River "is supposed to be a mix of residential."
In its discussion of the Middle River, the MRMP provides:
The Mid-River area contains most of the existing housing located along the Miami River. The wide variety of dwelling types, ranging from single family homes to high- rise apartment/condominium buildings, are mostly occupied by middle-income households. This is an important segment of the population for the City to retain in order to support the local economy and tax base.
A number of opportunities remain for development of new housing by building on
vacant lots or by increasing the density of existing developed lots. New housing construction should be encouraged, except on lands reserved for water dependent uses. In the proposed SD-4.1 waterfront commercial zoning district (See page 1.14) residential development could be permitted as an accessory use to a marina.
The property is located within the referenced proposed SD-4.1 waterfront commercial zoning district.
According to the MRMP, the strategy for the Middle River is to "[b]ring the neighborhoods back to the river." The MRMP further provides that "[d]iverse residential neighborhoods interspersed with commercial districts make the Mid-River unusual. The strategy is to develop centers of activities at strategic locations that will become gateways to the river and give identity to the neighborhoods."
In contrast, the MRMP describes the Up-River as "a working river." It also notes that "[m]arine industries in the Up-River area create a busy, economically vital district that is important to preserve. The challenge is to protect these industries from displacement by non-water-dependent uses and to nurture growth in marine industries without negatively impacting nearby residential neighborhoods."
In describing the Upper River, the MRMP provides:
The character of the river changes dramatically west of NW 27th Avenue bridge. In fact, it is not really the river there;
it is the man-made Miami Canal (and the Tamiami Canal branching off to the west). In contrast to the gently curving paths and irregular edges of the natural river, the canal banks are rigidly straight and significantly closer together at 90 feet.
The most striking difference in the up-river area is the change in land use. The Miami Canal is almost entirely industrial in character, with commercial shipping being the predominant use. Most of the larger cargo vessels on the Miami River are loaded and unloaded in this area, resulting in an incredibly busy, narrow river channel.
Due to the industrial nature of the up-river corridor, many of the urban design recommendations made for the mid-river and downtown areas are not applicable. The emphasis in this area should be to promote growth in shipping and related industries and to provide adequate roadways for the vehicles and trucks associated with these businesses.
Unlike the character of the Upper River, the portion of the River between Northwest 27th Avenue and Northwest 22nd Avenue is less than half industrial and exhibits the typical characteristics of the Middle River as a "transitional district" between the Upper River and the Lower River.
The Subject Property is situated on the Miami River between the 22nd Avenue bridge on the west side and an industrial use, i.e., a company that repairs bus and boat engines, on the east side. Land uses surrounding the Subject Property include: single-family residential; general commercial;
industrial; duplex residential; medium-density multi-family residential; recreation; major public facilities; restricted commercial; and high-density multi-family residential.
Because the Middle River is “a mixed use transitional section of the river,” mixed-use development is intended to be used as a mechanism to revitalize and stabilize the Middle River and at the same time allow more people access to the river. It is also intended as a way to combat the crime that has existed in the Middle River for many years.
The crux of one of the primary disputes between the parties in this case (as well as in Case No. 04-2754GM) is the appropriate boundary between the Upper River and Middle River. Petitioners contend that more recent UIP, which places the boundary between the Upper River and the Middle River farther east at Northwest 22nd Avenue, should control. In addition to the other uses in this transitional area, the UIP's boundary would incorporate as part of the Middle River four contiguous industrial land uses fronting on the south side of River from approximately Northwest 21st Avenue to Northwest 24th Avenue (the River Marine Property, the Subject Property owned by Riverside, the Detroit Diesel Property, and the Brisas Property, from east to west). (Like Riverside's property, the Brisas property also has been changed from Industrial but is under
challenge in DOAH Case No. 06-1146GM, and the challenged FLUM amendments are not yet in effect. See § 163.3189(2)(a), Fla. Stat. The River Run South property to the west of the Brisas Property recently was changed from Industrial to Medium Density Multi-Family.) Collectively these four properties are the single greatest concentration of Industrial land along the River in the City. The bulkhead shoreline of these properties constitute over 3,000 linear feet of consistent marine industrial shoreline, which possibly could be aggregated.
Including embayment of piers and slips, the linear feet of shoreline is almost 6,000 feet, which is 70 percent of the size of the Port of Miami on Dodge Island. The Detroit Diesel is in use as a repair facility for both private and commercial vessels, as well as buses and trucks. The River Marine Property is a shipping operation. Neither the Riverside nor the Brisas property is currently in use, although both have operated as repair and storage of large private and commercial vessels in the past. The only upland ingress and egress point for the Riverside property is to Northwest 14th Street, at which point west-bound traffic would lead to Northwest 27th Avenue and east- bound traffic would lead to Northwest 22nd Avenue, the two nearest bridges over the River.
Notwithstanding Petitioner's arguments, the fact remains that the City decided not to adopt the UIP's boundary between the Upper River and Middle River. While the City has adopted three other parts of the UIP, which are not pertinent to this proceeding, the City has declined to adopt the UIP's demarcation of the Upper River and the Middle River.
Allapattah
The property is located in a community development target area known as Allapattah. Community development target areas are neighborhoods to which the City directs community block grants for revitalization. In need of revitalization, Allapattah has deteriorated over time and is one of the poorest neighborhoods in the City.
Allapattah has been designated as a neighborhood development zone, a designation used in connection with community development programs.
One goal of the Comprehensive Plan is to revitalize areas of the City in decline. A resurgence of Allapattah started about ten years ago and mixed-use projects that include work force and affordable housing will help to stabilize the area because that will provide housing opportunities for employees at the Civic Center and in the downtown area who want to live near where they work.
Also within the Allapattah neighborhood, and less than one mile from the subject property, is an area known as the Civic Center. The Civic Center includes Jackson Hospital, Cedars Hospital, the Justice Building, the County Jail, and government offices. More than 25,000 persons work in the Civic Center area, and more than 50 percent of its employees have to travel more than 10 miles to get there. The population of the area continues to expand.
Urban Infill Area
The City is designated an urban infill area pursuant to ordinance, with the only exception being select non- residential islands. The urban infill designation assists the City in promoting urban infill concepts such as Eastward Ho!, and in fulfilling its objectives of mixed-use developments, a “walkable” city environment, and efficient use of utilities, infrastructure, and transportation systems.
The City’s adoption of the urban infill ordinance, adopted ten years after the MRMP, added importance to the MRMP’s concept of the Middle River as a transition area having mixed- use development. The added dimension of urban infill-related objectives and policies to the Master Plan signified a more important role for the Middle River in view of its proximity to major employment areas within the City. The concept of urban
infill is intended to encourage development and redevelopment within the urbanized areas of the City and in so doing, to improve efficient use of the City’s infrastructure. By its very nature, urban infill means high-density mixed use development that provides residences, work space, and entertainment centers.
The intent of urban infill is to reverse urban sprawl, which is development that takes place on the western edges of the municipality where infrastructure and roads are not fully in place and which creates inefficient use of infrastructure and environmental issues with respect to the Everglades. The idea of encouraging development and redevelopment of underutilized properties in the eastern urbanized areas of the City having the effect of increasing efficient use of utilities, infrastructure, and transportation systems is commonly known as Eastward Ho!.
“Smart growth” is consistent with the City’s urban infill designation in that its objective is to create a “liveable city” by encouraging more pedestrian activity through mixed-use development with ground floor activities.
Due to the City’s urban infill designation, principal transportation corridors have a transportation concurrency exception which permits an increased level of service on those corridors because the City has a mass transit system that can accommodate more people.
It is undisputed that the Subject Property is located within the area of the City designated as urban infill. See
§§ 163.2511 et seq., Fla. Stat.
The FLUM Amendment’s Restricted Commercial land use classification is consistent with the City’s urban infill designation and the Comprehensive Plan, because it permits mixed-use development that includes not only office and retail but also residential which minimizes the need for vehicle use. The change from Industrial to Restricted Commercial increases the flexibility of the Subject Property to be developed in such a manner that is consistent with the City’s urban infill designation.
Available public transportation is located near the Subject Property. Bus routes service the Subject Property which link to four nearby Metrorail stations, including the Civic Center less than a mile away. Because the Metrorail stations provide public parking, residents have the option of driving to the station and then taking Metrorail into downtown.
One of Petitioners' other primary arguments, besides the argument that Industrial land along the River in the vicinity of the Riverside site should be preserved, is that it would be better to put Restricted Commercial closer to and within easy walking distance of the Civic Center than at the
Riverside site. However, no such proposal is before the City at this time, and Restricted Commercial at the Riverside site also meets the purposes of urban infill.
Consistency with City's Comprehensive Plan
The Petitioners failed to prove the inconsistency of the FLUM Amendment with any of the following Comprehensive Plan objectives and policies (all of which are discussed in more detail below): Goal LU-1(1); Goal LU-1(3); Goal LU-1(4); Policy LU-1.1.1; Policy LU-1.1.2; Objective LU-1.2; Objective LU-1.3; Policy LU-1.3.6; Objective LU-1.5; Policy LU-1.6.4; Policy HO- 2.1.4; Goal CM-4; Objective CM-4.1; Policy CM-4.1.5; Objective NR-1.3; Objective NR-3.2; Policy NR-3.2.1; Policy NR-3.2.3; Objective PW-1.2; Policy PW-1.2.1; Policy CI-1.2.3, Objective PA-3.2; and Policy PA-3.2.1.
Future Land Use Element Goal LU-1 is to:
Maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city; (4) fosters the growth and development of downtown as a regional center of domestic and international commerce, culture and entertainment; (5) promotes the efficient use of land and minimizes land use conflicts; and (6) protects and conserves the city's significant natural and coastal resources.
Petitioners’ contention that the FLUM Amendment is inconsistent with Goal LU-1(1) is without merit. The Durham Park neighborhood abuts the Riverside Property. The FLUM Amendment will eliminate the potential for development of industrial uses that may generate “excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact.” Ironically, and illogically, Petitioners contend that Industrial is better than Restricted Commercial for the quality of life of surrounding residential neighborhoods, such as Durham Park, while at the same time contending that Industrial use is incompatible with residential uses. Petitioners failed to prove that the FLUM Amendment is inconsistent with Goal LU-1(1). To the contrary, it is consistent with that goal.
With respect to Goal LU-1(3) concerning the promotion and facilitation of economic development and the growth of job opportunities in the City, Petitioners contended that the FLUM Amendment will negatively impact marine industrial uses along the river. To the contrary, Payne, who owns a marine-related business, testified that he has not used the Riverside property for any business purpose for at least four or five years. Payne admitted that he did not know how many jobs were available when the Subject Property was used for marine businesses or how many
jobs will result from the FLUM Amendment. Because of the proximity of the Subject Property to the Civic Center area, the FLUM Amendment will facilitate economic development and the growth of job opportunities by providing housing opportunities accessible to one of the largest employment areas within the City. The FLUM Amendment is therefore consistent with Goal LU- 1(3).
Subpart (4) of Goal LU-1 is not relevant in this case because it pertains to the downtown area, and the Subject Property is not located in the downtown area. Consequently, the FLUM Amendment cannot be inconsistent with Goal LU-1(4).
Not surprisingly, Petitioners did not raise subpart
(2) of Goal LU-1 as an issue. As previously noted, the Allapattah neighborhood, in which the Subject Property is located, is an area in decline and mixed-use projects that include work force and affordable housing will help to stabilize the area by providing housing opportunities for employees at the Civic Center and in downtown who want to live near where they work. The FLUM Amendment is therefore consistent with subpart
(2) of Goal LU-1, which is concerned with the redevelopment and revitalization of declining areas.
Policy LU-1.1.1 provides:
Development orders authorizing new development or redevelopment that results in
an increase in the density or intensity of land use shall be contingent upon the availability of public facilities and services that meet or exceed the minimum LOS standards adopted in the CIE.
Policy LU-1.1.1 is not relevant because it pertains to development orders. See DCA's Final Order, Case No. 04-2754GM. Moreover, the concurrency analysis performed by the City revealed that approval of the FLUM Amendment would not result in a failure of existing public facilities to meet or exceed applicable Level of Service minimum standards. Petitioners presented no evidence to contradict that analysis. The FLUM Amendment is, therefore, consistent with Policy LU-1.1.1.
Policy LU-1.1.2 provides:
The City's Planning Department, with the assistance of various City departments and agencies, shall be responsible for monitoring the current and projected LOS provided by public facilities. The Planning Department shall perform the required concurrency review of proposed development for submittal to the State Department of Community Affairs (DCA), as required by Florida statutes and administrative rules.
It is undisputed that the City did a concurrency analysis of the FLUM Amendment. Petitioners presented no evidence to show that the concurrency analysis was defective in any way. The FLUM Amendment is therefore consistent with Policy LU-1.1.2.
Policy LU-1.1.10 and Housing Element Policy HO-1.1.9 both state:
The City’s land development regulations will encourage high-density residential development and redevelopment in close proximity to Metrorail and Metromover stations, consistent with the Station Area Design and Development Plan for each station. (See Transportation Policy TR-
1.5.2 and Housing Policy HO-1.1.9.)
These policies are not relevant in this proceeding since it pertains to land development regulations. See DCA's Final Order, Case No. 04-2754GM. Besides, the evidence was that available public transportation is located near the Subject Property, even if not within easy walking distance. Bus routes provides service to the Subject Property and four Metrorail stations are located nearby, including the Civic Center less than a mile away. For these reasons, the FLUM Amendment is not inconsistent with either policy.
Objective LU-1.2 is to:
Promote the redevelopment and revitalization of blighted, declining or threatened residential, commercial and industrial areas.
As previously noted, the Subject Property is in the City's Allapattah planning district, which has been a declining residential area, and mixed-use projects that include work force and affordable housing will help to stabilize the area because that will provide housing opportunities for employees at the
Civic Center and in downtown who want to live near where they work.
While not adopted by the City, the UIP refers to the Subject Property as a brownfield site. Brownfields are property sites which are contaminated or believed to be contaminated and which require clean-up in order to redevelop them. The City actively encourages property owners to clean up properties designated as brownfields, by assisting them in obtaining public funding for clean-up. Redevelopment of a brownfield is consistent with the Comprehensive Plan goal of revitalizing a declining area.
Because the FLUM Amendment will promote redevelopment and revitalization of the area and the Subject Property in particular, it is consistent with Objective LU-1.2.
Objective LU-1.3 provides:
The City will continue to encourage commercial, office and industrial development within existing commercial, office and industrial areas; increase the utilization and enhance the physical character and appearance of existing buildings; and concentrate new commercial and industrial activity in areas where the capacity of existing public facilities can meet or exceed the minimum standards for Level of Service (LOS) adopted in the Capital Improvement Element (CIE).
It is clear that the Restricted Commercial land use designation permits the types of land uses that Objective LU-1.3 seeks to
encourage--commercial and office uses. Moreover, the concurrency analysis performed by the City revealed that approval of the FLUM Amendment would not result in a failure of existing public facilities to meet or exceed applicable Level of Service minimum standards. Therefore, the FLUM Amendment is not inconsistent with Objective LU-1.3.
Policy LU-1.3.6 provides:
The City will continue to encourage a diversification in the mix of industrial and commercial activities and tenants through comprehensive marketing and promotion efforts so that the local economy is buffered from national and international cycles. Particular emphasis is on, but not limited to, Southeast Overtown/Park West, Latin quarter, Little Haiti, Little River Industrial District, River Corridor, the Garment District and the Omni area.
The Restricted Commercial designation allows greater flexibility in the development of the Subject Property. Such greater flexibility is not inconsistent with encouraging a diversification in the mix of industrial and commercial activities. The mix of uses permitted under the Restricted Commercial land use classification will promote urban infill and serve to prevent urban sprawl. The FLUM Amendment is, therefore, not inconsistent with Policy LU-1.3.6.
Objective LU-1.5 states:
Land development regulations will protect the city's unique natural and coastal
resources, and its historic and cultural heritage.
Objective LU-1.5 is not relevant because it pertains to land development regulations. See DCA's Final Order, Case No. 04- 2754GM. Further, Petitioners presented no evidence with respect to this objective and failed to prove that the FLUM Amendment is inconsistent with Objective LU-1.5.
Objective LU-1.6 is to:
Regulate the development or redevelopment of real property within the City to ensure consistency with the goals, objectives and policies of the Comprehensive Plan.
Objective LU-1.6 is not relevant in this proceeding since it pertains specifically to development regulations. See DCA's Final Order, Case No. 04-2754GM. Nevertheless, as found, Petitioners failed to prove that the FLUM Amendment is inconsistent with the Comprehensive Plan goals, objectives and policies.
Policy LU-1.6.1 provides:
The "Interpretation of the Future Land Use Plan Map" section of this element, which follows these land use goals, objectives and policies, establishes the activities and facilities allowed within each land use category appearing on the Future Land Use Plan Map, and the City's land development regulations shall be consistent with this section of the Miami Comprehensive Neighborhood Plan.
Policy LU-1.6.1 is not relevant because it pertains to consistency of land development regulations with the "Interpretation of the Future Land Use Plan Map" section of the Comprehensive Plan. See DCA's Final Order, Case No. 04-2754GM. Even so, as found, the FLUM Amendment’s Restricted Commercial land use designation is consistent with the Comprehensive Plan goals, objectives and policies.
Policy LU-1.6.4 provides:
Any proposal to amend the City's zoning ordinance that has been deemed to require an amendment to the Future Land Use Plan Map by the Planning Department, shall require a concurrency review and a finding from the Planning Department that the proposed amendment will not result in a LOS that falls below the adopted minimum standards, and will not be in conflict with any element of the Miami Comprehensive Neighborhood Plan. Based on its evaluation, and on other relevant planning considerations, the Planning Department will forward a recommended action on said amendment to the Planning Advisory Board, which will then forward its recommendation to the City Commission.
The City’s concurrency analysis demonstrated that approval of the FLUM Amendment would not result in a failure of existing public facilities to meet or exceed applicable Level of Service minimum standards. Petitioners presented no evidence to refute that analysis. The FLUM Amendment was properly noticed for a public hearing before the City’s Planning Advisory Board. In
accordance with City policy, the Planning Advisory Board held a public hearing on the FLUM Amendment and provided the Commission with its recommendation (of approval). The FLUM Amendment is therefore not inconsistent with Policy LU-1.6.4.
Housing Element Policy HO-2.1.4 provides:
The City will continue to promote development of new, high quality, dense urban neighborhoods along the Miami River, in Central Brickell and in Southeast Overtown/Park West through Special District (SD) zoning.
Policy HO-2.1.4 is not relevant because it pertains to special zoning regulations. See DCA's Final Order, Case No. 04-2754GM. Moreover, the FLUM Amendment land use designation of Restricted Commercial allows high-density mixed-use development. The FLUM Amendment is, therefore, consistent with Policy HO-2.1.4.
Transportation Element Goal TR-1 is to:
Maintain an effective and cost efficient traffic circulation network within the City of Miami that provides transportation for all persons and facilitates commercial activity, and which is consistent with, and furthers, neighborhood plans, supports economic development, conserves energy, and protects and enhances the natural environment.
Petitioners failed to prove that the FLUM Amendment is inconsistent with this goal. The City’s concurrency analysis determined that the FLUM Amendment would not result in unacceptable level of service with respect to traffic
circulation. Petitioners presented no evidence to refute this analysis. Mr. Luft merely testified that the City has a severe traffic congestion, and Payne stated that the FLUM Amendment would result in more traffic across the bridge, making it more difficult for the bridge to be opened for ships to pass through. Aguirre testified that a number of Durham Park residents use the Northwest 22nd Avenue bridge and that there can be a 15-minute wait at the intersection when the bridge goes up. None of these witnesses, however, were qualified as traffic experts, and it was not proven that the FLUM Amendment is inconsistent with Goal TR-1.
Policy TR-1.1.1 provides:
The City hereby adopts designation of the City, excluding Virginia Key, Watson Island and the uninhabited islands of Biscayne Bay that have a land use and zoning classification of Conservation, as an Urban Infill Area pursuant to Miami-Dade County’s designation of an Urban Infill Area lying generally east of the Palmetto Expressway and including all of the City of Miami.
Within this area, the concentration and intensification of development around centers of activity shall be emphasized with the goals of enhancing the livability of residential neighborhoods and the viability of commercial areas. Priority will be given to infill development on vacant parcels, adaptive reuse of underutilized land and structures, and the redevelopment of substandard sites. Maintenance of transportation levels of service within this designated Urban Infill Transportation Concurrency Exception Area shall be in
accordance with the adopted Transportation Corridors level of service standards set forth in Policies TR-1.1.2 and TR-1.1.3 of the Transportation Element of the MCNP. (See Land Use Policy LU-1.1.11.)
The fact that the Subject Property is within an urban infill area was a consideration of the City when adopting the FLUM Amendment. The FLUM Amendment--reclassifying land in the urban infill area from Industrial to Restricted Commercial--is in no way inconsistent with this policy. Indeed, recognizing that the Subject Property is located within the City’s urban infill area, Mr. Luft testified that high-density development is “an important part of what Urban Infill is about” and “an important part of revitalizing a city.” Mr. Luft also agreed that the City should aim for Smart Growth by encouraging people to park and walk or take public transportation.
Policy TR-1.5.10 states:
Through application of the provisions of its land development regulations, the City shall encourage residential development near large employment centers in order to minimize Commutes within the City and near the large employment centers. The City shall continue to update the land development regulations, as necessary, to ensure the regulations promote residential development near large employment centers and investigate opportunities for mixed-use developments.
Policy TR-1.5.10 is not relevant because it is directed at land development regulations. See DCA's Final Order, Case No. 04-
2754GM. Nevertheless, the City’s analysis of the FLUM Amendment took into consideration that the Subject Property is located less than one mile from the Civic Center, one of the City’s largest employment centers having at least 25,000 employees.
Mixed-use projects that include work force and affordable housing will provide housing opportunities for employees at the Civic Center and in the downtown area who want to live near where they work. The FLUM Amendment is therefore consistent with Policy TR-1.5.10.
Coastal Management Element Goal CM-4 is to:
Ensure public safety and the protection of property within the coastal zone from the threat of hurricanes.
Objective CM-4.1 is to:
Minimize the potential for loss of human life and the destruction of property from hurricanes.
Policy CM-4.1.5 provides:
Each proposed land use and land development regulation change within the Coastal High Hazard area of the city will require an analysis of its potential impact on evacuation times and shelter needs in the event of a hurricane.
Petitioners presented no evidence addressing this goal, objective, and policy and failed to prove that the FLUM Amendment is inconsistent with them.
Natural Resources Element Objective NR-1.3 is to:
Maintain and enhance the status of native species of fauna and flora.
Petitioners failed to provide any evidence showing that the FLUM Amendment is inconsistent with this objective.
Objective NR-3.2 is to:
Prevent the degradation of ambient air quality within the city.
Policy NR-3.2.1 states:
Establish vehicular transportation patterns that reduce the concentration of pollutants in areas known to have ambient air quality problems.
Policy NR-3.2.2 provides:
Support those elements of the Miami-Dade County Comprehensive Development Master Plan that encourage the use of Metrorail and Metromover by directing high density new development or redevelopment first to areas nearest Metrorail and Metromover stations, and those land use policies that do not foster the proliferation of employment centers in the suburban areas of the county. (See Transportation Objective TR-1.5 and associated policies.)
Petitioners failed to provide any evidence showing that the FLUM Amendment will have negative impact on the City’s air quality. To the contrary, the FLUM Amendment changes the land use classification from one that may involve “excessive amounts of noise, smoke, fumes,. . . , [and] hazardous wastes
. . . .” Also, as explained above, the evidence demonstrated
that available public transportation is located near the Subject Property, which includes bus service and four nearby Metrorail stations. The only evidence presented by Petitioners was the testimony of Mr. Luft who testified that the closest Metrorail station to the Subject Property is at the Civic Center which is about a mile away and not within easy walking distance. He made no mention of the bus service that links the Subject Property to the nearby Metrorail stations. While there may be locations for Restricted Commercial closer to work centers and transit stations that might further reduce the use of vehicles for transportation, it was not proven that the FLUM Amendment is inconsistent with Objective NR-3.2 or Policies NR-3.2.1, NR- 3.2.2, and NR-3.2.3.
Policy NR-3.2.3 provides:
Work with the County transportation planning agencies to continue to increase the quality of mass transit services within the city.
Policy NR-3.2.3 is simply irrelevant. That the City is obligated to work with the appropriate County agencies with respect to providing mass transit services has no bearing on the City’s adoption of the FLUM Amendment. Petitioners presented no evidence with respect to this policy. The FLUM Amendment is not inconsistent with Policy NR-3.2.3.
Potable Water Element Objective PW-1.2 and Policy PW-
1.2.1 both address availability of potable water. Objective PW-
1.2 is to:
Ensure adequate levels of safe potable water are available to meet the needs of the City.
Policy PW-1.2.1 is to:
Ensure potable water supplies meet the established level of service standards for transmission capacity of 200 gallons per capita per day (GPCD). (See Natural Resource Conservation Policy NR-2.1.5 and Capital Improvements Policy CI-1.2.3.)
The City’s concurrency analysis revealed that potable water supplies will be available to the City after the FLUM Amendment. In making this analysis, the City reasonably relied on information from, and analysis by, the County, which is one of the entities, along with the South Florida Water Management District and WASA, responsible for providing water and sewer service. Petitioners merely asserted that in evaluating the FLUM Amendment application, the City failed to do an independent analysis to address the availability of potable water, which was not required.
The City’s issuance of building permits are always contingent on the developer’s ability to obtain approval for water and sewer allocations from the appropriate entity.
Development permits have never been denied during the last ten years due to an issue of water availability.
The County’s Planning Department is advised of land use changes. At no time did the City receive objections to the FLUM Amendment from the County.
Petitioners presented no other evidence and did not prove that the FLUM Amendment is inconsistent with Objective PW-
1.2 and Policy PW-1.2.1.
Capital Improvements Element Policy CI-1.2.3 provides:
Acceptable Level of Service Standards for public facilities in the City of Miami are:
Recreation and Open Space -- 1.3 acres of public park space per 1000 residents.
Potable Water Transmission Capacity --
200 gallons/resident/day. (See Potable Water Policy PW-1.2.1 and Natural Resource Conservation Policy NR-2.1.5.)
Sanitary Sewer Transmission Capacity --
100 gallons/resident/day.
Storm Sewer Capacity -- Issuance of any development permit shall require compliance with a drainage level of service standard of a one-in-five-year storm event. For the storm drainage system as a whole, 20 percent of the existing system will be brought to a standard of a one-in-five-year storm event by the year 2000.
Solid Waste Collection Capacity -- 1.28 tons/resident/year.
Traffic Circulation -- The minimum level of service standard on limited access, arterial, and collector roadways that are not within designated Transportation Corridors is LOS E, with allowable exceptions and justifications therefore, with LOS measured by conventional V/C methodology. Within designated
Transportation Corridors, which include approximately 95% of the roadway mileage within the City of Miami, a minimum LOS E is also maintained, but the measurement methodology is based on peak-hour person- trips wherein the capacities of all modes, including mass transit, are used in calculating the LOS. Specific levels of service by location and mode are set out in Policies 1.1.2 and 1.1.3 of the Transportation Policies in the Miami Comprehensive Neighborhood Plan 1989-2000.
The City’s concurrency analysis demonstrated that approval of the FLUM Amendment would not result in a failure of existing public facilities to meet or exceed the applicable Level of Service standards stated in Policy CI-1.2.3. Petitioners presented no evidence to refute that analysis, and the FLUM Amendment is consistent with Policy CI-1.2.3.
In sum, Petitioners failed to prove that the FLUM Amendment is inconsistent with any of the goals, objectives, or policies in the Comprehensive Plan.
The Port of Miami River
Petitioners also argue that the Port of Miami River Sub-Element must be considered in determining whether the amendment is in compliance. This Sub-Element is found in the Plan's Ports, Aviation and Related Facilities Element. It is an optional element not required under Chapter 163, Florida Statutes. Goal PA-3 of the Port of Miami River Sub-Element of the Plan refers to the Port as "a group of privately owned and
operated commercial shipping companies located at specific sties along the Miami River." A footnote to the title of the Sub- Element defines the Port of Miami River as:
Simply a legal name used to identify some 14 independent, privately-owned small shipping companies located along the Miami River, and is not a "port facility" within the usual meaning of the term. The identification of the shipping concerns as the "Port of Miami River" was made in 1986 for the sole purpose of satisfying a U.S. Coast Guard regulation governing bilge pump outs.
The private shipping companies identified as comprising the Port of Miami River are listed in Volume II of the Plan. The location of each of those companies is also shown. See Petitioners' Exhibit 4, Section VIII, page 35. This information came from Metro Dade County, where most of the shipping companies were located. Ten of the 14 were west of Northwest 27th Avenue. Four were east of the 5th Street Bridge. None were between Northwest 27th Avenue and 5th Street Bridge.
Over the years, the City has consistently interpreted this Sub-Element as applying only to properties that are listed in Volume II of the Plan. Because Intervenor's property is not included within the City's definition of the Port of Miami River, in reviewing the application, the City adhered to its long-standing interpretation that the Sub-Element was not applicable or relevant to the analysis of the amendment's
consistency with the Plan. See Payne, et al. v. City of Miami, et al., Final Order Number DCA06-GM-132, DOAH Case No. 04- 2754GM, (DOAH May 16, 2006; DCA June 21, 2006); Monkus et al. v.
City of Miami et al., Final Order Number DCA04-GM-197, DOAH Case No. 04-1080GM, 2004 Fla. ENV LEXIS 105, *33-34 (DOAH Sept. 3, 2004; DCA Oct. 26, 2004).
Petitioners contend that the Port of Miami River is more than just the 14 companies listed in the footnote to the Sub-Element. They point out that the footnote refers to "some 14," suggesting that, while referring to specific locations, there could have been more than 14, and presumably a change of ownership or name of a company would not "shrink" the Port. Similarly, they contend, the Port subject to the Sub-Element should grow in size as new shipping businesses opened at other locations on the river.
In support of their argument, Petitioners point out that Objective PA-3.1 and Policy PA-3.1.2 of the Sub-Element contemplated the expansion and redevelopment of the Port over time. They also cite to Payne, et al. v. City of Miami, et al., 913 So. 2d 1260 (Fla. 3d DCA 2005), which was an appeal from a circuit court order dismissing a complaint filed by Payne and MRMG under Section 163.3215, Florida Statutes, for lack of standing because they were not "substantially affected persons,"
and not in a proceeding under Section 163.3187, Florida Statutes, to determine whether an amendment was in compliance. Since the circuit court had granted a motion to dismiss, there was no evidentiary hearing, and no evidence was presented to either court regarding the Port of Miami River. In that context, the Payne court, in a majority opinion, considered the Sub-Element to be relevant and "intended to apply to the 'uses along the banks of the Miami River," and not just to specific companies named in the definition. The circuit court order was reversed, and the case was remanded for further proceedings.
DCA's Final Order entered in DOAH Case No. 04-2754GM held that Payne was "based on a standing issue, with the discussion of the interpretation of the Port of Miami River Element and its related policies occurring as dicta."
In this case, there was evidence of an updated list and map of shipping companies on the Miami River, also information from Metro Dade County, as part of the City's Evaluation and Appraisal Report (EAR), which was part of the package considered by the City Commission when it adopted the FLUM amendment. This list indicated that in 1995 the Port of Miami River consisted of 28 private shipping companies operating on the river at that time. As on the original list and map, the vast majority of the companies were located in the County, west
of Northwest 27th Avenue, and four were located east of the 5th Street Bridge. Two were located just east of Northwest 22nd Avenue, and it appears from the evidence that one was located just east of Northwest 27th Avenue and that the rest (21) were west of Northwest 27th Avenue. From the lists and maps, some new companies were operating at the same locations under different names, and some companies appeared to change locations. There also were new companies and new locations.
In addition, the UIP in evidence in this case indicated that, as of 2002, there were 25 private shipping companies operating on the Miami River. No map accompanies the UIP's list. From the evidence, which was not clear, it appears that one company still was operating just east of Northwest 27th Avenue and that two shipping companies still were operating just east of Northwest 22nd Avenue. The latter two appear to have been operating on the north side of the river.
Petitioners put on evidence that the United States Coast Guard has requested the City to delete the footnote referring to the "some 14" shipping companies. Petitioners join in that request. However, requesting deletion of language from the Plan does not prove Petitioners' contention that the existing language means what they say it does.
Even if the Port of Miami River is not limited to the
14 shipping companies or locations named in the Plan, it is clear from the evidence that Intervenor's property never functioned as a private shipping terminal, and neither did any of the other Industrial property on the south side of the river in the immediate vicinity of Intervenor's property. For that reason, the Port of Miami River Sub-Element does not apply to the FLUM amendment in this case.
Petitioners also contend that all marine industrial uses on the river are part of the Port of Miami River, whether or not they would constitute shipping companies or businesses. They contend that the includible uses are described in the many "permitted principal uses and structures" set out in the City's SD-4 Zoning Waterfront Industrial District, Section 604.4.1. These would include not only uses and structures directly related with a shipping terminal but also other potentially less-directly associated uses and structures, such as: facilities for construction, maintenance, service, repair, supply or storage of vessels; bases for marine dredging, salvage, towing; marine construction offices and yards; sales, charter or rental of vessels, marine supplies and equipment, marine sporting goods and supplies; and commercial marinas. Contrary to Petitioners' arguments, it is clear that the Port of
Miami River Sub-Element does not apply to all of those uses and structures, or to the entire SD-4 Zoning District.
Assuming that the Port of Miami River Sub-Element applies to this FLUM amendment, not all of it would apply. Objective PA-3.1, and underlying Policies PA-3.1.1, 3.1.2, and 3.1.3, all relate to the purpose and scope of land development regulations for the Port of Miami River and are therefore not relevant. See DCA's Final Order, Case No. 04-2754GM. Objective PA-3.2 and underlying Policy PA-3.2.1 pertain to the coordination of surface transportation access to the Miami River with the traffic and mass transit system shown on the traffic circulation map series and are not germane to this amendment. That leaves Goal PA-3 and Objective PA-3.3.
It was found and concluded in the DCA's Final Order in Case No. 04-2754GM, which constitutes stare decisis, and collaterally estoppel as to these Petitioners, that only Objective PA-3.3 would require consideration.
Objective PA-3.3 reads as follows:
The City of Miami shall coordinate its Port of Miami River planning activities with those of ports facilities and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County's Port of Miami.
Petitioners failed to present any evidence concerning a lack of coordination activities relative to the FLUM
amendment. Coordination does not mean that adjacent local governments or other interested persons have veto power over the City's ability to enact plan amendments. City of West Palm Beach et al. v. Department of Community Affairs et al., 2005 Fla. ENV LEXIS 191 at *34, DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM (DOAH July 18, 2005, DCA Oct. 21, 2005). Rather,
the City needs only take into consideration input from interested persons. Id. at *35.
The City established that pursuant to its Resolution No. 00-320, before any resolution, ordinance, or issue affecting the Miami River is considered, the City Manager is required to inform the Miami River Commission (MRC) of that impending matter. The MRC serves as a clearinghouse for all interests of the Miami River, including residential, economic, and industrial interests, as well as the other entities listed in the Objective. See §§ 163.06 et seq., Fla. Stat. The evidence shows that the MRC was notified before the amendment was considered, and that it provided a recommendation to the Commission. The MRC's input consisted of a 5-5 vote on the issue whether the FLUM amendment was consistent with the UIP. There was no vote on whether the FLUM amendment was consistent with the City's Comprehensive Plan.
While ruled not relevant in Case No. 04-2754GM, Goal PA-3 states that the Port of Miami River "shall be encouraged to continue operation as a valued and economically viable component of the city's maritime industrial base."
Mr. Luft testified that the FLUM Amendment is inconsistent with the objectives of the Port of Miami River Sub- element that are directed at preserving and encouraging growth of the marine industry on the river because it impacts the “economic viability of the marine industries” by “invit[ing] speculation [on land] that makes it impossible for that industry to expand.”
Mr. Payne believes that the FLUM Amendment will negatively impact the marine industry on the Miami River, because the marine industry is growing, and there is a shortage of dockage space. Mr. Payne further testified that land is needed for expansion of the marine industry.
Despite this testimony, Petitioners presented no evidence demonstrating that the FLUM Amendment will negatively impact the viability of the maritime industry. Mr. Payne, who is not a land use expert, conducted no analysis of the needs of the neighborhood in the area of the Subject Property. Mr. Payne admitted that he does not know how many jobs were available when the Subject Property was used for marine businesses or how many
jobs will result from the FLUM Amendment. While Mr. Cafiero testified that typical marine port-related jobs usually are paid high salaries, he did not conduct any studies as to the number and types of jobs generated by the marine industry on the Miami River.
The evidence in fact reflects that the maritime industry is economically strong and is expanding. One of the older marine boatyards on the Miami River is undergoing a large expansion. A mega-yacht facility to be constructed on Watson Island will include high-density residential, a marina, office space, and a restaurant.
Mr. Payne’s tugboat company likewise has been expanding, and he has hired more employees to handle the additional business. Mr. Payne has even looked at properties to buy on the Miami River for expansion of his business.
Mr. Luft testified that the Master Plan identifies the Subject Property as one that was to be “preserved as marine industrial.” But the City has no policy of "land banking" (i.e., reserving land for future growth and expansion of a particular use), nor does the Comprehensive Plan include such a policy. The UIP advocates "land banking" of waterfront industrial lands by the marine industry. But there was no evidence that either Mr. Payne or MRMG sought to purchase the
Subject Property for that purpose. Indeed, Riverside purchased the Subject Property from a marine business called Coastal Tug and Barge, Inc.
If Goal PA-3 is relevant, the issue would be whether the FLUM Amendment is consistent with it. Internal consistency does not require that a local comprehensive plan provision "further"--i.e., take action in the direction of realizing-- every other goal, objective, and policy in the plan. Contrast
§ 163.3177(10)(a), Fla. Stat. (defining consistency of local comprehensive plan with regional and state comprehensive plans). It is enough if a plan provision is "compatible with"--i.e., does not conflict with--other goals, objectives, and policies in the plan. See Cooper v. City of St. Petersburg, ACC-92-004, DOAH Case No. 90-8189GM, 1992 Fla. ENV LEXIS 111, *51 (ACC July
21, 1992; DOAH RO Dec. 13, 1991). A fortiori, a FLUM amendment need not "further" comprehensive plan goals, and it was not proven that the FLUM Amendment in this case conflicts with Goal PA-3, even assuming the goal applies and is relevant.
Data and analysis
Petitioners contend that the FLUM amendment in this case was not based on the best available, professional acceptable, data and analysis, as required by Florida Administrative Code Rule 9J-5.005 and Section 163.3177, Florida
Statutes. However, their evidence on the issue was limited to Mr. Luft's general conclusion that the requirements were not met and evidence as to certain data and analyses that were available to the City at the time the amendment was adopted. There was no testimony that any particular data or analyses were professionally acceptable, that they were the best available, or that the FLUM Amendment did not react appropriately to any particular data or analyses.
Petitioners contend that the City was required to conduct a housing and industrial needs assessment before adopting the FLUM amendment. The City did not conduct a formal, amendment-specific assessment of the need for residential or industrial lands, or specifically, of the need for housing. It was not required to do so because the Subject Property is located within the City's urban infill area. The DCA may require a housing needs assessment if the proposed FLUM amendment will result increased urban sprawl.
The City’s analysis did take into consideration that there is a need for work force housing, which is housing that is intended to serve middle income employees who currently live outside the City due to the lack of affordable housing. The City has seen an increased demand for housing over the past ten years, which is evidenced in part by the increased number of
applications for mixed-use projects. The goals, objectives, and policies of the land use and housing elements of the Comprehensive Plan directed at meeting the changing needs of the City are considered when reviewing a proposed FLUM amendment.
The City’s analysis of the FLUM Amendment included an evaluation of all permissible uses, the suitability of the land use change in the context of the Comprehensive Plan, and the property’s location and its proximity to a significant employment area. The City also determined that the FLUM Amendment was consistent with, among other things, the MRMP and the City’s urban infill ordinance.
The City found the FLUM Amendment to be consistent with its “vision for the middle river in creating a mixed-use atmosphere” in the context of the City’s urban infill objectives. The City also considered that water-dependent and water-related uses are allowed under both the Restricted Commercial and Industrial land use designations.
The City considered adequate data and analysis in its decision, including: documentation submitted by Riverside which consisted of its application, property survey, property deed, photographs of the property, and disclosure of property ownership; a future land use map of the area; a legal description of the property; City staff analysis of the proposed
land use change; the recommendation of the City’s LPA, the PAB; an aerial photograph of the area; proposed draft legislation amending the Comprehensive Plan; a school impact analysis; the recommendation of the Miami River Commission; and numerous petitions from individual citizens in support of the land use change.
Petitioners contend that evidence of various pieces of data--the City’s Large Scale Development Report 1995-Present (which includes all projects built, under construction, approved, applied-for, or even just in a preliminary phase since 1995), the City's approximate current population, and its annual growth rate from 1930 to 1985--proves that the FLUM Amendment is not based on data and analysis. Without other evidence, that information is insufficient to prove that the FLUM Amendment is not based on data and analysis.
Petitioners contend that several extensive consultants' economic analyses of the Miami River commissioned by and produced for the City proves that the FLUM Amendment is not based on data and analysis. But the analyses were not approved by the City, and there was no evidence that the analyses were prepared in a professionally acceptable manner, that they were relevant to the FLUM amendment, or that the FLUM Amendment does not react appropriately to them.
Petitioners also cite to the “Working Waterfronts, Report Number 2005-122” prepared by DCA for the Florida Senate in November 2004, which highlights a statewide concern about the loss of diversified waterfront industry (including marinas, mooring fields, and boat yards) in terms of jobs and economic output, as well as a 2005 legislative staff analysis and legislation establishing the “Waterfronts Florida Program” and amending Section 163.3177(6)(a), Florida Statutes, to require coastal counties to include in the future land use elements of their comprehensive plans "regulatory incentives and criteria that encourage the preservation of recreational and commercial working waterfronts as defined in s. 342.07." But there was no evidence that any of the analyses were prepared in a professionally acceptable manner, that they were relevant to the FLUM amendment, or that the FLUM Amendment does not react appropriately to them. (As to the legislation, it applies to counties, is not self-implementing, and adds nothing to the City's plan provisions. In addition, Restricted Commercial allows water-dependent and water-related uses, as defined by Section 342.07(2), Florida Statutes.)
As indicated, Petitioners also contend that the City ignored certain data which shows that the FLUM Amendment disrupts an existing land use pattern supporting water-dependent
uses. However, as also noted above, the City performed an extensive land use study to consider, among other things, these very concerns and concluded that the new land use designation is compatible with adjacent properties and consistent with the Plan.
For the foregoing reasons, Petitioners failed to prove that the FLUM Amendment is not supported by professionally acceptable data and analysis, or that the City failed to react to data and analysis in an appropriate manner.
CONCLUSIONS OF LAW
Since this is a small-scale amendment, Section 163.3187(3)(a), Florida Statutes, applies and provides:
In the proceeding, the local government’s determination that the small scale development amendment 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.
See Denig v. Town of Pomona Park, DOAH Case No. 01-4845GM, 2002 Fla. ENV LEXIS 220 at *7-8 (DOAH June 18, 2002; Admin. Comm.
Oct. 23, 2002). This statutory burden of proof has been applied in this proceeding.
Relevant here, “in compliance” means consistent with the requirements of Sections 163.3177, 163.3178, and 163.3180, Florida Statutes and Chapter 9J-5, Florida Administrative Code.
Because it neither owns nor operates a business within the City of Miami, DPNA failed to establish that it has standing to participate in the instant proceeding. See § 163.3184(1)(a), Fla. Stat. However, the other Petitioners have standing because they own or operate a business within the City of Miami and submitted oral or written comments, recommendations, or objections to the local government during the appropriate comment time period. Riverside also has standing.
The City and Riverside contend that Payne does not have standing because he did not comment during the appropriate time period. Section 163.3184(1)(a), Florida Statutes, states that the comment period is "during the time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment." But there is no transmittal hearing for a small-scale amendment. In Monkus, DOAH Case No 04-1080GM, it was found that comment period for that small-scale amendment case was between the date on which the application for the FLUM Amendment was first presented to the Miami City Commission at a public hearing (the “First
Reading”) (in this case, July 28, 2005) and the date when the FLUM Amendment was adopted by the City of Miami. But even if Payne's comments at the PAB meeting on the FLUM Amendment preceded the comment period, Payne's comments before the MRC were part of the MRC minutes that were presented to the City Commission during the adoption hearing. For that reason, Payne made written comments during the comment period.
As described in the Findings of Fact, Petitioners failed to prove by a preponderance of the evidence that the FLUM Amendment either is inconsistent with the City's Comprehensive Plan, as prohibited by Section 163.3187(2), Florida Statutes; or is not based upon adequate data and analysis, as prohibited by Florida Administrative Code Rule 9J-5.005(2) and Section 163.3177(8), Florida Statutes. For that reason, it is concluded that the City's determination that the FLUM Amendment is in compliance must be sustained. See Denig, supra.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Community Affairs enter a final order determining that the small scale development plan amendment adopted by Ordinance No. 12761 is in compliance.
DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006.
ENDNOTE
1/ All statutory references are to Florida Statutes (2005).
COPIES FURNISHED:
Thaddeus Cohen, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
David L. Jordan, Acting General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
Andrew W. J. Dickman, Esquire
Law Office of Andrew Dickman, P.A. Post Office Box 771390
Naples, Florida 34107-1390
David C. Ashburn, Esquire Greenberg Traurig, P.A. Post Office Box 1808
Tallahassee, Florida 32302-1808
Paul R. Lipton, Esquire Greenberg Traurig, P.A. 1221 Brickell Avenue
Miami, Florida 33131-3224
Rafael Suarez-Rivas, Esquire Assistant City Attorney
444 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130-1910
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 31, 2006 | Agency Final Order | |
| Aug. 02, 2006 | Recommended Order | Petitioners did not prove that the City`s future land use map amendment in the Miami River corridor from Industrial to Restricted Commercial was inconsistent with the City Comprehensive plan, or not supported by data and analysis. |
