STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA REGIONAL PLANNING ) COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1653

)

CITY OF MIAMI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal administrative hearing was conducted in this matter on February 9, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Samuel S. Goren, Esquire

Susan Keil, Esquire Josias & Goren

3040 East Commercial Boulevard Fort Lauderdale, Florida 33308

For Respondent: Stuart L. Simon, Esquire

Lucia Allen, Esquire

Fine, Jacobson, Block, Klein, Colan & Simon, P.A.

Post Office Box 340800 Miami, Florida 33134

On or about April 22, 1982, the City of Miami issued its Resolution No. 82- 339, which included an amended development order. The resolution authorizes the City of Miami as the developer to construct an amusement theme park on Watson Island, located in Biscayne Bay in Miami, Florida. The South Florida Regional Planning Council (SFRPC) filed a notice of appeal and a petition with the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. SFRPC is contesting City of Miami Resolution No. 82-

339. The FLWAC forwarded the notice of appeal and petition to the Division of Administrative Hearings on June 18, 1982. Proceedings were conducted before the Division of Administrative Hearings in accordance with a schedule which was arranged with the concurrence of the parties.

The City of Miami filed a motion to dismiss the appeal. The motion was granted in part and denied in part by an order entered October 25, 1982. The order was received in evidence at the hearing as Hearing Officer's Exhibit 2. In accordance with Rule 28-5.205, Florida Administrative Code, the order is hereby incorporated into this Recommended Order. The final hearing was scheduled to be conducted as set out above by notice dated October 26, 1982.

At the final hearing, SFRPC called Sharyn Dodrill, the Assistant Director of SFRPC, as its only witness. The City of Miami rested its factual presentation upon the exhibits that were placed in evidence. Hearing Officer's Exhibits 1 and 2 and Joint Exhibits 1 through 43 were received into evidence.

The joint exhibits are identified in Exhibit "A" to the pre-hearing stipulation which was executed by the parties. The stipulation was received in evidence as Hearing Officer's Exhibit 1. A briefing schedule was arranged and extended at the request of the parties due to illness of one of the attorneys. The parties waived the requirement of Rule 28-5.402, Florida Administrative Code, that the recommended order be submitted within 30 days of the date of the hearing.

Several of the exhibits chat were identified at the hearing were filed late. The last of the exhibits was received in the office of the Division of Administrative Hearings on April 28, 1983.

ISSUES

The ultimate issue to be resolved in this proceeding is whether FLWAC should grant or deny permission to develop pursuant to the amended development order and, if granted, whether conditions and restrictions should be imposed. SFRPC contends: (1) that the City was without authority to enter an amended development order, (2) that the amended development order does not satisfy conditions which FLWAC previously imposed upon the development, (3) that prior orders of FLWAC are contrary to law, and (4) that a proposal respecting the placing of additional boat slips on the north side of Watson Island constitutes a substantial deviation from earlier development orders contrary to the City's findings in its amended development order. The City of Miami contends that FLWAC has already resolved the issues raised by SFRPC, that the appeal process is therefore improper, and that the placing of additional boat slips on the north side of the island does not constitute a substantial deviation from prior development orders.

FINDINGS OF FACT

1. The City of Miami is proposing to construct an amusement theme park on Watson Island. Watson Island is located in Biscayne Bay within the boundaries of the City of Miami. Watson Island is a spoil island which was formed by the dredging of various channels. It forms a portion of a causeway which connects the mainland with the City of Miami Beach. The theme park which the City proposes to construct would include specialty shops, restaurants, theaters, handicraft exhibits, amusement rides, and marina facilities.

   
   

2. On October 19, 1979, the City submitted its original application for development approval to the SFRPC. The SFRPC staff requested further data, and a second application was submitted on February 14, 1980. Ultimately, SFRPC prepared a report identifying what it considered to be various positive and negative impacts that would result from the proposed development. The report was submitted to the City. On July 10, 1980, the City adopted its Resolution No. 80-525. The resolution authorized issuance of a development order approving the proposed Watson Island development. SFRPC appealed the resolution and development order to the FLWAC. The matter was forwarded to the office of the Division of Administrative Hearings and given Case No. 80-1843. A hearing was conducted, and a Recommended Order was issued on June 3, 1981. The Hearing Officer recommended that the City's development order be overturned. Several adverse regional impacts of the proposed development were identified in the Recommended Order, and changes in the Application for Development Approval and the Development Order that would render the project KLIgible to receive a

   development permit were dKLIneated. The Recommended Order was forwarded to FLWAC. Both the SFRPC and the City filed exceptions.

   
   

3. On September 1, 1981, FLWAC met and considered the Recommended Order. On September 29, 1981, FLWAC entered its Final Order. The Findings of Fact and Conclusions of Law in the Recommended Order were substantially adopted, except that FLWAC dKLIneated an additional potential adverse regional impact. Rather than overturning the City's development order, however, FLWAC granted permission to the City of Miami to develop Watson Island as provided in the application subject to five conditions. The conditions are, as follows: (1) that no dredging or filling would be undertaken except in connection with installation of sewage pipes and marine pilings; (2) that the proposed marina on the west side of the island would be KLIminated or relocated so that it would not interfere with the existing turning basin of the Port of Miami; (3) that the Florida Department of Transportation would conduct an analysis of capacities of impacted roadways in order to determine improvements that might be required as a result of the development; (4) that the City would, through an independent firm, prepare a new economic feasibility report respecting the development; and (5) that the City would prepare plans for public transportation facilities to transport visitors to the proposed amusement theme park.

   
   

4. In order to ensure that the conditions were met, FLWAC established a schedule and a procedure to be followed. All of the conditions were to be met on or before March 1, 1982. As to the marina on the west side of the island, the City was to devise specific plans which would be submitted to the SFSPC for review. The SFRPC was required to provide comments to the City within 60 days. The City was thereafter to review the comments and make modifications deemed appropriate. The City's plans for removal or relocation of the west side marina were to become an integral part of the application for development approval. As to the transportation analysis, the Department of Transportation study was to be submitted to the SFRPC, which could review and provide comments to the Department of Transportation within 60 days. The Department was thereafter to consider the comments and make such modifications as it deemed appropriate. The City was thereafter required to either make improvements or agree to pay the cost of improvements which were identified in the Department of Transportation's analysis. As to the economic feasibility analysis, the City was to submit the report to the SFRPC, which could review it and provide comments to the Department of Community Affairs within 60 days. The Department of Community Affairs was thereafter to consider the report and the comments of SFRPC, and to assure itself of the overall fiscal solvency of the City. As to public transportation plans, the City was required to submit its plans to the SFRPC. The SFRPC was to review the plans and provide comments to the Department of Transportation within 60 days. The Department of Transportation was thereafter required to consider the plans and comments of the SFRPC, and assure itself of the viability of the public transportation component of the plan.

   
   

5. On February 11, 1982, the City of Miami requested an extension of time to comply with the conditions. FLWAC granted the extension by order dated March 10, 1982. Under this order, the City was to present satisfactory evidence of compliance with Conditions 1, 2, 3, and 5 on or before May 18, 1982. Satisfactory evidence of compliance with Condition 4 was to be submitted 120 days after the date of the next regularly scheduled election in the City of Miami.

   
   

6. In accordance with the mandate of FLWAC, reports were submitted to the SFRPC by the City of Miami and by the Department of Transportation for review and comment. The SFRPC reviewed and commented upon the reports. On April 22,

   1982, the City Commission of the City of Miami met and issued its Resolution No. 82-339. The purpose of the resolution, which includes an amended development order, was to establish compliance with Conditions 1, 2, 3, and 5 of the September 29, 1981, order. FLWAC met on May 18, 1982, to consider whether the resolution and amended development order met the conditions. On a vote of five to two, FLWAC accepted the resolution and amended development order as constituting satisfactory compliance with the conditions. On August 13, 1982, FLWAC entered an order which provided, as follows:

   
   

   This cause came before the Florida Land and Water Adjudicatory Commission on May 18, 1982, for presentation

   of evidence by the Respondent, City of Miami, regarding satisfactory compliance with Conditions 1, 2, 3 and 5 of

   the Final Order of this Commission dated September 29, 1982.

   
   

   Based upon our review of the evidence submitted, consideration of the record, and the arguments of counsel and parties, the Commission finds that the Respondent,

   City of Miami, has presented evidence of satisfactory compliance with Conditions 1, 2, 3 and 5 of the Final Order.

   
   

7. The SFRPC filed the instant notice of appeal and petition with FLWAC. The appeal purports to have been taken in accordance with the provisions of Section 380.07, Florida Statutes. The SFRPC is seeking to appeal the City's Resolution No. 82-339, including the development order. The Secretary of FLWAC forwarded the notice of appeal and petition to the office of the Division of Administrative Hearings with the request that a Hearing Officer be assigned and that further proceedings be conducted. SFRPC contends that the City has failed to meet the conditions imposed by FLWAC in its September 29, 1981, order; that the procedures established by the FLWAC are contrary to law; that the proposed marina relocation constitutes a substantial deviation from the original development order; and that the amended development order was not entered in accordance with requirements relating to amendments which constitute a substantial deviation. The City of Miami filed a motion to dismiss the appeal on the grounds that FUC had already considered and resolved the issues of whether the conditions had been met; that the procedures followed by the FUC were proper; and that the marina relocation could not, as a matter of law, constitute a substantial deviation from the original development order. Resolution of the motion to dismiss was delayed until after FLWAC entered its August 13, 1982, order. The motion was granted in part by order entered October 25, 1982. The motion was denied insofar as it related to whether the marina relocation constitutes a substantial deviation from the original development order.

   
   

8. Watson Island development plans as provided in the application for development approval and in the original development order issued by the City of Miami provided for marina facilities on the west side and north side of the island. The west side facilities were to include 165 boat slips. The north side facilities were to include 198 boat slips. In the Recommended Order issued on June 3, 1981, it was factually and legally concluded that the proposed west side marina would interfere with the existing turning basin of the Port of

   Miami, or with proposed expansion of the turning basin. This interference was determined to be an adverse impact upon a significant regional transportation facility. These findings and conclusions were adopted by FLWAC in its Final Order entered September 29, 1981. FLWAC directed as the second condition of development approval that the City KLIminate or relocate the west side marina so that it would not interfere with the turning basin of the Port of Miami. In its amended development order, the City has proposed to reduce the west side marina from 165 to 101 boat slips, a reduction of 64 slips. The City has proposed to add 69 slips to the north side marina, increasing it to a total of 267 slips.

   FLWAC has determined that this relocation satisfies the second condition set out in its September 29, 1981, order.

   
   

9. In its resolution and amended development order, the City determined that removing 64 boat slips from the west side marina does not constitute a substantial deviation from the original development order. Accordingly, the amendment was not subjected to further review by the SFBPC nor to other review requirements set out in Section 380.06, Florida Statutes.

   
   

10. The addition of 69 boat slips to the north side marina at the proposed Watson Island development creates a reasonable likKLIhood of additional adverse regional impacts from the proposed project. While there is a total of only five additional boat slips, an increase which in itself is insignificant, the placing of the slips on the north side the island is likely to have different adverse impacts upon the environment of the region and upon regional transportation facilities. These likely adverse impacts have not been previously subjected to the review requirements of Section 380.06, Florida Statutes.

    
    

11. The proposed north side marina lies in an area which is presently relatively shallow. Sea grasses are abundant. The area provides significant habitat and water quality functions within Biscayne Bay, which is an aquatic preserve and a regionally significant water body. While the evidence does not establish that locating an additional 69 boat slips at the north side marina would necessarily have any additional adverse environmental impacts given the reduction of boat slips at the west side marina by 64, it does appear that the precise nature of the impacts has not been subject to review in accordance with Section 380.06, Florida Statutes.

    
    

12. The proposed north side marina extends into a water body which separates Watson Island from Biscayne Island. Biscayne Island forms a part of the Venetian Causeway. The channel through the waterway provides the primary access by water for many persons who reside outside of the limits of the City of Miami to the Intracoastal Waterway. The addition of 69 additional slips at the north side marina constricts this access significantly more than the original proposal. Furthermore, boaters who use the north side marina will have access to recreational waterways only through drawbridges on the MacArthur and Venetian Causeways. The potential impacts that expansion of the north side marina will have on the waterway between Watson Island and Biscayne Inland and upon the MacArthur and Venetian Causeways have not been subjected to the review requirements of Section 380.06, Florida Statutes. It is reasonably likely that the impacts will be substantially greater than impacts from the marina configuration originally proposed.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 380.07, Florida Statutes.

14. The SFRPC has contended that the City of Miami is without jurisdiction to enter an amended development order because FLWAC has retained jurisdiction over the matter to consider whether the conditions it imposed have been met. This contention is without merit. While FLWAC has retained jurisdiction with respect to the conditions it imposed, the very purpose of the amended development order is to meet the conditions. Entry of an amended development order by the City has served as a vehicle to establish compliance with the conditions. Entry of the amended development order has not served to interfere with FLWAC's continued jurisdiction over the matter.

    
    

15. The SFRPC contends that the City has not met the conditions imposed by FLWAC in its September 29, 1981, order. This contention was rejected in the order which granted in part the motion to dismiss filed by the City of Miami. The order, which is Hearing Officer's Exhibit 2, has been incorporated into this Recommended Order. The issues of whether the City has complied with Conditions 1, 2, 3, and 5 imposed by FLWAC in its order of September 29, 1981, have been resolved by FLWAC in its order dated August 13, 1982. It is apparent from the record of the FLWAC meeting and from the order which it entered that the FLWAC considered the facts presented by the City, the Department of Transportation, and other sources; evaluated the evidence; and found that the City had complied with the conditions. Nothing in the record of proceedings before the FLWAC on September 1, 1981; the FLWAC order of September 29, 1981; the record of proceedings before the FLWAC on May 18, 1982; or the FLWAC order of August 13, 1982, reveals any intent to refer resolution of factual issues relating to compliance with the conditions to a proceeding before a Hearing Officer of the Division of Administrative Hearings. Instead, it appears that FLWAC determined to resolve these issues itself and has done that.

    
    

16. In view of the recent First District Court of Appeal decision in Fox

    v. Treasure Coast Regional Planning Council, Cases No. VV-338 and WW339, So.2d (1 DCA Fla., Opinion filed March 22, 1983), the procedure established by FLWAC, which included reviewing additional evidence subsequent to a hearing conducted by a Hearing Officer of the Division of Administrative Hearings, is subject to question. FLWAC did not have the benefit of the Fox decision when it established the procedures and considered whether compliance had been established. Nevertheless, it is not the role of a Hearing Officer from the Division of Administrative Hearings to review in a collateral proceeding action that has been taken by an agency. The review role has been lodged in the appropriate district court of appeal. Section 120.68, Florida Statutes.

    
    

17. The SFRPC has contended that the location of 69 additional boat slips at the proposed north side marina of Watson Island constitutes a substantial deviation from prior development orders. It does not appear that this issue has been previously reviewed or resolved by FLWAC. Section 380.06(17)(a), Florida Statutes, provides:

    
    

    A developer shall submit proposed changes to a development of regional impact previously approved pursuant

    to this section to the local government for a substantial deviation determination. The local government shall review the proposed changes pursuant to the criteria enumerated

    in this subsection and shall make a substantial deviation determination.

    The local government shall, at the conclusion of local review, modify the development order to reflect approved changes to the development and shall notify the regional planning agency and the state land planning agency of the changes to the development order, with the

    findings subject to the appeal provisions of Section 380.07. If the proposed changes are found to be a substantial deviation, the development shall be subject to further review pursuant to this section . . . As used in this section "substantial deviation" means

    any change to the previously approved development of regional impact which creates a reasonable likKLIhood of additional adverse regional impacts, or any other regional impacts created by the change not previously reviewed by the regional planning agency.

    
    

    The City of Miami determined in its resolution and amended development order that the relocation of slips from the west side to the north side marina did not constitute a substantial deviation from the prior development order. Unless the SFRPC took an immediate appeal to the FLWAC in accordance with Section 380.07, Florida Statutes, the issue of whether the amendment constituted a substantial deviation would not have been subject to further review. The evidence establishes that locating 69 additional boat slips at the north side marina creates regional impacts that have not previously been reviewed by the SFRPC. The evidence also establishes that the location of the additional boat slips creates a reasonable likKLIhood of additional adverse regional impacts to the environment and to regional transportation facilities beyond and different than those that would have occurred under the original development order. While a total of only five additional boat slips would result, the consequences of the slips at the specific north side location have not been subject to review in the manner required by Section 380.06, Florida Statutes. It is therefore appropriate that FLWAC enter an order overturning that portion of the resolution and amended development order issued by the City of Miami that determined that the location of 69 additional boat slips at the proposed north side marina on Watson Island does not constitute a substantial deviation from the original development order and remanding the matter to the City of Miami for further proceedings in accordance with Section 380.06, Florida Statutes.

    
    

18. The SFRPC has raised several additional issues in its pleadings. These additional issues all relate to the validity of actions already taken by FLWAC. This proceeding is an inappropriate vehicle to test the propriety of those actions. Section 120.68, Florida Statutes.

RECOMMENDED ORDER

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

RECOMMENDED:

That an order be entered by the Florida Land and Water Adjudicatory Commission overturning that portion of Resolution No. 82-339 and the amended development order issued by the City of Miami which determined that the location of 69 additional boat slips at the proposed north side marina of Watson Island does not constitute a substantial deviation from the prior development order and remanding this proceeding to the City of Miami so that the regional impacts of the proposed additional boat slips can be reviewed in the manner specified in Section 380.06, Florida Statutes.

RECOMMENDED this 17th day of May, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1983.

COPIES FURNISHED:

Samuel S. Goren, Esquire Susan Keil, Esquire Josias & Goren

3040 East Commercial Boulevard Fort Lauderdale, Florida 33308

Stuart L. Simon, Esquire Lucia Allen, Esquire

Fine, Jacobson, Block, Klein, Colan & Simon, P.A.

Post Office Box 340800 Miami, Florida 33134

Mr. John T. Herndon Secretary

Florida Land and Water Adjudicatory Commission

Office of the Governor The Capitol

Tallahassee, Florida 32301

Linda Loomis Shelley, Esquire Office of General Counsel Office of the Governor

The Capitol

Tallahassee, Florida 32301

The Honorable Bob Graham Governor, State of Florida The Capitol

Tallahassee, Florida 32301

The Honorable Jim Smith Attorney General

State of Florida The Capitol

Tallahassee, Florida 32301

The Honorable Ralph D. Turlington Commissioner of Education

State of Florida The Capitol

Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

State of Florida The Capitol

Tallahassee, Florida 32301

The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32301

The Honorable Doyle Conner Commissioner of Agriculture State of Florida

The Capitol

Tallahassee, Florida 32301

The Honorable Bill Gunter

Treasurer and Insurance Commissioner State of Florida

The Capitol

Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA REGIONAL PLANNING ) COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1653

)

CITY OF MIAMI, )

)

Respondent. )

)

APPENDIX I TO RECOMMENDED ORDER RECORD BASIS FOR FINDINGS OF FACT

1. The Findings of Fact set out in Paragraph 1 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibit 11.

   
   

2. The Findings of Fact set out in Paragraph 2 of the Recommended Order are based upon the petition filed by the South Florida Regional Planning Council, the answer filed by the City of Miami, Hearing Officer's Exhibit 1, and Joint Exhibits 1 through 13.

   
   

3. The Findings of Fact set out in Paragraph 3 of the Recommended Order are based upon Joint Exhibits 16, 17 and 19.

   
   

4. The Findings of Fact set out in Paragraph 4 of the Recommended Order are based upon Joint Exhibit 19.

   
   

5. The Findings of Fact set out in Paragraph 5 of the Recommended Order are based upon Joint Exhibits 25, 26, 27 and 28.

   
   

6. The Findings of Fact set out in Paragraph 6 of the Recommended Order are based upon Joint Exhibits 29 through 33, 36 through 40, and 43.

   
   

7. The Findings of Fact set out in Paragraph 7 of the Recommended Order are based upon the petition filed by the South Florida Regional Planning Council, the answer filed by the City of Miami, and Hearing Officer's Exhibits 1 and 2.

   
   

8. The Findings of Fact set out in Paragraph 8 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibits 11, 19, 32 and 43.

   
   

9. The Findings of Fact set out in Paragraph 9 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibit 32.

   
   

10. The Findings of Fact set out in Paragraph 10 of the Recommended Order are based upon the testimony of the witness Dodrill; Hearing Officer's Exhibit 1; and Joint Exhibits 1, 14, 24, 29, 34 and 36.

ENTERED this 17th day of May, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1983.

COPIES FURNISHED:

All parties of record.

Docket for Case No: 82-001653

Orders for Case No: 82-001653