STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MILDRED FALK and MIAMI BEACH ) HOMEOWNERS ASSOCIATION, )
)
Petitioner, )
)
vs. ) CASE NO. 89-6803GM
)
CITY OF MIAMI BEACH and ) DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on May 22 and 24, 1990, in Miami Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Michael A. Lipsky, Esquire
444 Brickell Avenue Suite 1010
Miami, Florida 33131
For Respondent: John Dellagloria, Esquire City of Miami Sandra Schneider, Esquire Beach City of Miami Beach
Office of the City Attorney 1700 Convention Center Drive Miami Beach, Florida 33319
For Respondent: Richard J. Grosso, Esquire Department of Department of Community Affairs Community 2740 Centerview Drive
Affairs Tallahassee, Florida 32399-2100
STATEMENT OF THE ISSUES
Whether Petitioners are "affected persons" entitled to pursue the instant challenge to the City of Miami Beach's Year 2000 Comprehensive Plan pursuant to Section 163.31B4(9), Florida Statutes?
If so, whether the City of Miami Beach's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by Petitioners?
PRELIMINARY STATEMENT
On November 30, 1989, following the issuance of the Department of Community Affairs' (Department's) notice of intent to find the City of Miami Beach's (City's) Year 2000 Comprehensive Plan "in compliance," Petitioners filed with the Department a petition disputing the Department's determination of compliance.
More specifically, in their petition they challenged that portion of the plan "involving the 'trade' [of] 3.87 acres of the City of Miami Beach Par 3 Golf Course for adjoining land owned by a religious institution, at 2524 Pine Tree Drive, Miami Beach, Florida." They alleged in their petition the following:
6. The portion of the plan challenged . . . is not in compliance with applicable
Florida Statutes and law as follows:
The transfer of said acreage
violates a deed restriction, whereby the golf property, pursuant to deed dated June 17, 1930, may only be used for a golf course. Said covenant, as the deed notes, runs with and binds the said land.
Rule 9J-5.007 is violated, which rule requires that land use "discourage the proliferation of urban sprawl."
Change of land use may also violate Florida Statute 163.3184, in that the Procedures required by the said statute may not have been followed herein.
The transfer of public land to a private religious organization may also violate the First Amendment of the United States Constitution as well as Section 3, Declaration of Rights of the Constitution of the State of Florida, by directly aiding a religious denomination. This position was also
presented to the Miami Beach Commission, as noted in the Commission minutes of September 7, 1989.
The transfer of the subject lands does not constitute a valid public purpose.
No effort was made by the City of Miami Beach Commission to attempt to appraise, evaluate, or equalize the value of property being exchanged, as is required in similar actions by the State of Florida. Florida Statute 253.42.
On January 10, 1990, the City filed a motion to dismiss Petitioners' petition. The Hearing Officer, on February 12, 1990, issued an order addressing the City's motion to dismiss in which he announced the following:
Accordingly, to the extent that the instant petition alleges that the City's Comprehensive Plan is not "in compliance" because the plan violates requirements other than those expressly mentioned in Section 163.3184(1)(b), Florida Statutes, the petition should be dismissed. No evidence will be taken regarding these allegations and the Hearing Officer will recommend the dismissal of these allegations in his Recommended Order. The only compliance issues framed by the petition that will be heard will be those that pertain to the plan's compliance with the provisions enumerated in Section 163.3184(1)(b), Florida Statutes.
In a footnote, the Hearing Officer made the following observation: Of the compliance issues raised by
Petitioners in paragraph 6 of their
petition, it appears that only the urban sprawl issue framed in subparagraph (b) is appropriate for consideration in this administrative proceeding.
On March 28, 1990, the Hearing Officer issued a subsequent order in which he modified his February 12, 1990, order as follows:
It appears to the Hearing Officer, upon further review of the matter in light of the amended final order issued by the Administration Commission in Austin v.
Department of Community Affairs, Case No. 89-31, that the issue raised by Petitioners in paragraph 6(c) of their petition may also be appropriate for consideration in the instant case.
Accordingly, the Hearing Officer hereby modifies his February 12, 1990, prehearing order to so reflect.
The parties, on May 16, 1990, submitted their prehearing stipulation. The stipulation included a recitation of those facts that were admitted and that would therefore require no proof at hearing, as well as the following statement concerning the scope of the issues to be litigated in the instant case:
The compliance issues which may be raised in the instant proceeding are limited to those stated in the definition of "in compliance" in Section 163.3184(1)(b), Florida Statutes.
Accordingly, of the issues raised in paragraph 6 of the instant Petition, only the urban sprawl issue stated in subparagraph (b) and the
issue in subparagraph (c) are appropriate for consideration in this proceeding. Petitioners have not waived the right to raise other issues stated in the Petition in another forum.
At hearing, the testimony of ten witnesses was presented: Judd Kerlancheek, the City's Planning and Zoning Director; Daniel Vaisman, a City resident who lives in the area surrounding the Par
3 Golf Course; Leo Levitt, a member of the Miami Beach Golf Advisory Board; Bruce Singer, a City Commissioner; James Steffes, the manager of the Par 3 Golf Course; Mildred Falk, one of the Petitioners in this cause; Elaine Baker, the City Clerk; Robert Swarthout, a professional planner; Ramon Alvarez, an engineering consultant; and Robert Nave, Chief of the Department's Bureau of Planning. In addition to the testimony of these witnesses, the
parties offered a total of fifteen exhibits into evidence. All but one of these exhibits were received into evidence by the Hearing Officer.
At the close of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their post- hearing submittals had to be filed no later than 30 days following the Hearing Officer's receipt of the transcript of the hearing.
The Hearing Officer received a copy of the hearing transcript on June 7, 1990. On July 2, 1990, the City filed a motion requesting that the deadline for the filing of post- hearing submittals be extended to July 16, 1990. By order issued July 5, 1990, the motion was granted. On July 13, 1990, the City filed a motion requesting that the deadline be further extended to July 20, 1990. The motion was granted by order issued July 16, 1990.
The Department and the City filed proposed recommended orders on July 18, 1990, and July 20, 1990, respectively. The proposed findings of fact set forth in these proposed recommended orders have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. Other than a letter received by the Hearing Officer on May 31, 1990, which was stricken at the request of the City by order dated July 6, 1990, Petitioners have not filed any post-hearing submittals.
FINDINGS OF FACT
Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made:
City of Miami Beach: An Overview
The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission.
The City consists of a main island and a number of smaller natural and man-made islands that lie to the east of the Dade County mainland. They are separated from the mainland by Biscayne Bay. To their east is the Atlantic Ocean.
The City is now, and has been for some time, virtually fully developed. Less than 2% of the land in the City is vacant. Those parcels that are vacant are generally small in size and they are scattered throughout the City.
The City is situated in the most intensely developed area in Dade County.
Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population
Tourism is the backbone of the City's economy.
Golf is among the activities visitors to the City are able to enjoy. There are two public 18-hole golf courses and one private 18-hole golf course in the City. The City also has a public 9-hole golf course, hereinafter referred to as the Par 3 Golf Course.
Par 3 Golf Course and Surrounding Area
The Par 3 Golf Course is owned by the City and leased to the American Golf Corporation, which operates the course.
The course consists of nine relatively short holes. The longest of these holes is 180 yards. The shortest is 100 yards. The remaining holes average 150 yards in
The course has been completely renovated and is currently in excellent condition. Since the renovation work, the number of players has increased significantly. Nonetheless, the course is still under-utilized.
The land upon which the golf course is built is not environmentally sensitive. There are, however, a number of large, mature trees on the property.
The Par 3 Golf Course is located on a 25 acre tract of land in the south central part of the City. It is bounded by 28th Street on the north, Dade Boulevard and Collins Canal on the south, Pine Tree Drive on the east, and Prairie Avenue on the west. All of these roadways are classified as "urban" by the Florida Department of Transportation
Pine Tree Drive is one of the major north-south thoroughfares in the City. It is part of the Dade County Road System and has been assigned a Level of Service of "D" by the County. That portion of the roadway which borders the golf course has four lanes of through traffic, plus two parking lanes, and is divided by a median strip.
The area surrounding the golf course is entirely developed. The development is primarily, but not exclusively, residential in nature. Residential structures are particularly predominant to the north and to the west of the golf course. Among the nonresidential structures found in the immediate vicinity of the golf course are: the Youth Center to the north; the Hebrew
Academy's elementary school building, Miami Beach High School, and a City fire station, maintenance yard and fuel facility to the south; and the Fana Holtz Building, a five story building, with a basement parking garage, which currently houses the Hebrew Academy's junior and senior high school program, to the east on the other side of Pine Tree Drive.
Parking is inadequate in the area of the golf course. The City is currently investigating ways to alleviate the parking problems in the area.
Option to Exchange Property
On June 7, 1989, at a regularly scheduled meeting, 1/ the City Commission voted to give the Hebrew Academy, a private educational institution, an option to purchase from the City a
3.87 acre portion of the Par 3 Golf Course located immediately adjacent to and north of the Hebrew Academy's elementary school building, in exchange for the Fana Holtz Building and the land on which it is situated.
The Hebrew Academy has plans to construct a new junior and senior high school building, which will be able accommodate more students than the existing facility, on the land it will acquire if it exercises its option.
The Hebrew Academy's acquisition of the land and its construction of a building on the site will disrupt the operations of the golf course. In addition, at least some of the large, mature trees that presently stand on the site will have to be removed.
The course's third and fourth holes now occupy the land that the Hebrew Academy has been given the option to purchase. The course therefore will have to be redesigned to eliminate or relocate these holes if the Hebrew Academy purchases the land and constructs a building on it.
Golfers playing the Par 3 Golf Course generally have the benefit of cool breezes that blow from the southeast. A multistory building situated on the land now occupied by the third and fourth holes will block some of these breezes that golfers playing other holes now enjoy.
If the City acquires the Fana Holtz Building, it may move the offices of several City departments into the building. Such a move, coupled with an increase in the size of the Hebrew Academy's enrollment, would create a need for additional parking spaces in an area where parking is already a problem.
Petitioners Falk and Miami Beach Homeowners Association
Mildred Falk is now, and has been for the past 53 years, a resident of the City of Miami Beach.
The Miami Beach Homeowners Association (Association) is a nonprofit organization of Miami Beach homeowners. Its primary purpose is to educate the public concerning matters of local interest in the City.
For the past 15 years, Falk has been the President of the Association.
Falk does not require formal permission from the Association's Board of Directors to address the City Commission on behalf of the Association. Falk has an understanding with the members of the Board that, if they take a position on an issue that will come before the City Commission, she will represent their collective views at the City Commission meeting in question without being formally requested to do so.
Falk regularly appears before the City Commission in her capacity as a representative of the Association. As a general rule, though, she does not expressly state during her presentations that she is representing the Association. She considers it unnecessary to provide such an advisement because the persons she is addressing already know of her role as a spokesperson for the Association.
On April 5, 1989, Falk Submitted a completed Lobbyist Registration Form to the City Clerk. On the completed form, Falk indicated that she had been employed by the Association to engage in lobbying activities with respect to a particular item, unrelated to the instant controversy, that was then before the City Commission.
On February 5, 1990, Falk submitted another completed Lobbyist Registration Form to the City Clerk. On this completed form, she indicated that she had been employed to lobby with respect to "[a]ll issues that affect Miami Beach before the City Commission, Authorities or Boards." There was no indication on the form, however, as to what person or entity had employed her to engage in such lobbying activity.
These are the only completed Lobbyist Registration Forms that Falk has filed with the City Clerk.
Adoption of the City's Comprehensive Plan
The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989.
Notice of these adoption proceedings was published in the "Neighbors" section of the Miami Herald. 2/
The Miami Herald is a newspaper of general paid circulation in Dade County.
The "Neighbors" section of the Miami Herald is circulated twice weekly along with other portions of the Herald in the following towns and municipalities: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village.
The "Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising.
At the close of the public hearing held on September 21, 1989, the City Commission unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Plan.
On the future land use map (FLUM), adopted by the City Commission as part of the plan, that portion of the Par 3 Golf Course which the Hebrew Academy has the option to purchase is designated PFE (Public Facility- Educational). The property that the City will receive if the Hebrew Academy exercises its option has a land use designation of PF (Public Facility- Fire, Police, Other) on the FLUM.
Policy l.2q. of the plan's future land use element contains the following discussion concerning the land use designation of these parcels of property:
On June 7, 1989, the City Commission approved an option with the Hebrew Academy to exchanged [sic] private land for a portion of the Par 3 Golf Course. At the exercise of the option, the affected portion of the Par 3 Golf Course shall automatically be designated
as Public Facilities [sic]- Educational.
The property that the City will obtain will be designated as Public Facility- Other. 3/
During the public hearings that culminated in the City Commission's adoption of the City's Year 2000 Comprehensive Plan, Falk made oral presentations to the City Commission. She criticized the decision that had been made to allow the Hebrew Academy to purchase, at its option, the "affected portion of the Par 3 Golf Course" referenced in Policy 1.2q. of the plan's future land use element. It was her contention that, in accordance with a restrictive covenant entered into between the City, the Alton Beach Realty Company and the Miami Beach Improvement Company on June 17, 1930, the City was prohibited from allowing any portion of the land on which the golf course was built "to be used for any purpose whatsoever, other than for a golf course and/or golf links."
At no time during her remarks did she contend that the plan ultimately adopted by the City Commission was contrary to any requirements dealing with the subject of urban sprawl. Nor did she argue that the notice of the adoption hearings that the City had provided was in any way deficient or inadequate.
Falk did not identify herself at the adoption hearings as a representative of the Association. 4/ Nonetheless, in presenting her remarks to the City Commission, she was expressing not only her own views, but those of the Association as well. Prior to these hearings, she had informally polled the members of the Association's Board of Directors and they had each indicated to her that they opposed the "land swap" between the City and the Hebrew Academy. While they did not formally request that she appear before the City Commission to voice their concerns, it is not their standard practice to issue such requests.
Neither Falk nor the Association submitted any written comments concerning the City's Year 2000 Comprehensive Plan during the City's review and adoption proceedings Urban Sprawl
In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements."
The memorandum defines "urban sprawl" a- "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or
more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development." These land use patterns are described in the memorandum as follows:
Leap frog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development
* * *
Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways.
* * *
Low-density, Single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas.
Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas should be protected from urban development.
The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners.
In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it is necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities per square mile:
Density Classification
0-200 Rural
201-500 Exurban
501-1000 Suburban
1001-2000 | Medium [Urban] Density |
2001-5000 | High [Urban] Density |
5000+ | Highest Urban Density |
Among the techniques recommended in the memorandum to curb "urban sprawl" is "[p]romoting urban infill development and redevelopment."
The construction of a multistory building on the Par 3 Golf Course and the conversion of the Fana Holtz Building to government use would not constitute any of the three types of development that the Department has indicated in its memorandum are characteristic of "urban sprawl." Rather, these activities would be in the nature of "infill development and redevelopment" inasmuch as they would occur, not in a "rural area" or on the "urban fringe," as those terms are used in the memorandum, 5/ but rather in the heart of an area of the "highest urban density."
CONCLUSIONS OF LAW
General Legal Principles
Counties and incorporated municipalities in the State of Florida are required, pursuant to Chapter 163, Part II, Florida Statutes, (otherwise known as the Local Government Comprehensive Planning and Land Development Regulation Act and referred to herein as the Act) to prepare and adopt comprehensive plans of the type and in the manner prescribed by the Act.
A local government's adopted comprehensive plan is subject to review by the Department of Community Affairs under the Act. The purpose of such review is to determine whether the plan is "in compliance." Section 163.3184(8), Fla. Stat.
"In compliance," as used in Section 163.3184, Florida Statutes, "means consistent with the requirements of ss. 163.3177, 163.3178 and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II." Section 163.3184(1)(b), Fla. Stat.
Section 163.3177, Florida Statutes, describes the "[r]equired and optional elements of comprehensive plan[s]" and the "studies and surveys" upon which they must be based.
Section 163.3178, Florida Statutes, prescribes the contents of the coastal management element, which is a required element for all counties and municipalities that, like the City of Miami Beach, abut "the Gulf of Mexico or the Atlantic Ocean, or which include or are contiguous to waters of the state where
marine species of vegetation listed by rule pursuant to s. 403.817 constitute the dominant plant community." Section 380.24, Florida Statutes.
Section 163.3191, Florida Statutes, imposes requirements relating to a local government's evaluation and appraisal of its comprehensive plan following the plan's adoption.
Chapter 9J-5 of the Florida Administrative Code contains the rule provisions adopted by the Department of Community Affairs pursuant to Section 163.3177(9), Florida Statutes, which set forth the "minimum criteria for review of comprehensive plans and determination of compliance."
The state comprehensive plan was adopted by the Legislature in accordance with the provisions of Section 186.008, Florida Statutes. It is found in Chapter 187, Florida Statutes. The plan is "a direction-setting document" that provides "long- range policy guidance for the orderly social, economic, and physical growth of the state." Section 187.101, Fla. Stat.
The appropriate regional policy plan in the instant case is the plan adopted by the South Florida Regional Planning Council pursuant to Section 186.508, Florida Statutes. The Council is responsible for regional planning activities in the South Florida region, which includes Broward, Dade and Monroe Counties.
The Legislature has mandated that the following guidelines be followed in determining whether a local government's comprehensive plan is consistent with the requirements of the state comprehensive plan and the applicable regional policy plan:
local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals and policies of the state or regional plan. For the purposes of determining consistency with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plan.
Section 163.3177(10)(a), Fla. Stat. Furthermore, there is no requirement that a local government address in its comprehensive plan state goals and policies that are not "relevant to the circumstances or conditions in its jurisdiction." Section 163.3177(10)(b), Fla. Stat.
If the Department of Community Affairs determines following its review of a local government's adopted comprehensive plan that the plan is consistent with the requirements of Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Chapter 9J-5, Florida Administrative Code the state comprehensive plan and the appropriate regional policy plan, it is required to issue and publish a notice of its intent to make such a finding. "[A]ny affected person, within 21 days after the publication of the notice, may file a petition with the [Department] pursuant to s. 120.57" challenging the proposed finding. Section 163.3184(9)(a), Fla. Stat. To ascertain whether a petitioner is an "affected person" entitled to participate as a party in the proceeding, the following definition set out in Section 163.3184(1)(a) Florida Statutes, must be applied:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review; and adjoining local governments that can demonstrate that adoption of the plan as proposed would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction. Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written objections during the local government review add adoption proceedings.
The burden is on the petitioner to establish that he qualifies as an "affected person" under this statutory definition. See Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414 (Fla. 4th DCA 1974) ("burden of proof is `on the party asserting the affirmative of an issue before an administrative tribunal'").
If a petition is filed with the Department by an "affected person," it must be transmitted to the Division of Administrative Hearings. Upon receipt of the petition, the Division of Administrative Hearings is responsible for assigning a hearing officer, who "shall hold [a] hearing in the affected local jurisdiction and submit a recommended order to the [Department]." The Department must issue "a final order within 30 days after receipt of the recommended order if [it] determines that the plan is in compliance. If [it] determines that the plan . . . is not in compliance, [it must] submit, within 30 days after receipt, the recommended order to the Administration Commission." Section 163.3184(9)(b), Fla. Stat.
In making its determination on the matter, the Department must take into account that the petitioner bears the burden of establishing that it is not even "fairly debatable" that the plan is "in compliance." Section 163.3184(9)(a), Fla. Stat. ("the local plan . . . shall be determined to be in compliance if the local government's determination of compliance is fairly debatable"). 6/ The burden is a "heavy" one. See Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 392 (Fla. 3d DCA 1980). To meet this burden, the petitioner must show that its position regarding the plan's noncompliance is not subject to reasonable debate or legitimate controversy. See City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953); Norwood-Norland Homeowner Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3d DCA 1987); Sarasota County v. Purser, 476 So.2d 1359, 1362 (Fla. 2d DCA 1985); Marrell v. Hardy, 450 So.2d 1207, 1209 (Fla. 4th DCA 1984). If an examination of the record developed at hearing reveals that the petitioner has not made such a showing, the Department must issue a final order sustaining "the local government's determination of compliance." Petitioners' Standing
The preponderance of the evidence establishes that Falk is a resident of the City of Miami Beach.
It further reflects that: the members of the Miami Beach Homeowners Association own property in the City of Miami Beach; the subject matter of the petition the Association filed in this case is within the general scope of its interest and activity; and the relief requested in the petition is of a type appropriate for it to receive on behalf of its members.
Accordingly, if they had "submitted oral or written objections during the local government and review proceedings," both Falk and the Association would qualify as "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to challenge the City's Year 2000 Comprehensive Plan pursuant to Section 163.3184(9), Florida Statutes, see Florida
Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982) (associational standing allowed in rule challenge cases under appropriate circumstances); Southwest Ranches Homeowners Association, Inc. v. Broward County,
502 So.2d 931, 934-35 (Fla. 4th DCA 1987) (association of owners of property adjoining challenged development had standing to challenge development order under Section 163.3215, Florida Statutes); Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So.2d 753, 754-55 (Fla. 1st DCA 1982) ("standing requirements for associations as set forth in Florida Home Builders should be extended to section 120.57(1) proceedings").
The only remarks Falk or the Association directed to the City Commission during the review and adoption proceedings were those made by Falk during her oral presentations at the September
7 and 21, 1989, public hearings held by the City Commission. 7/ The City contends that these remarks did not constitute "objections," as that term is used in Section 163.3184(1)(a), Florida Statutes, and that therefore neither Falk nor the Association qualify as an "affected person" under that statutory provision. The City's argument is a persuasive one.
Chapter 163, Part II, Florida Statutes, does not contain a definition of the term "objection." The Department of Community of Affairs, however, in Florida Administrative Code Rule 9J- 11.002(6) has defined the term as follows:
"Objection" means a statement which identifies a portion of a
plan or plan amendment that is not consistent with one or more provisions of Section 163.3177, 163.3178, 163.3“91,
Florida Statutes, the state comprehensive plan, the appropriate comprehensive regional policy plan, or Chapter 9J-5, Florida Administrative Code.
The Department's definition is not clearly unauthorized or erroneous. To the contrary, it is consistent with the apparent intent of the Legislature that, in order to preserve their right to challenge a local government's adopted comprehensive plan on the grounds that it is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, property owners, residents, business owners and business operators must, if given a reasonable opportunity to do so, 8/ raise these grounds during the review and adoption proceedings so that the local governing body will have the chance to address their concerns before the plan is adopted. 9/ Accordingly, the Department's definition of the term "objection" should be utilized in construing the
provisions of Section 163.3184(1)(a), Florida Statutes, and determining whether Falk and the Association are "affected persons" entitled to administratively challenge the City's Year 2000 Comprehensive Plan on the grounds that it is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. See PW Ventures, Inc. v. Nichols 533 So.2d 281, 283 (Fla. 1988) ("[T]he contemporaneous construction of a statute by the agency charged with its enforcement and interpretation is entitled to great weight" and may not be rejected "unless it is clearly unauthorized or erroneous").
Although they had the opportunity to do so, at no time during the City's review and adoption proceedings did either Falk or the Association raise any compliance issue. Their sole complaint was that, to the extent that the plan would permit the Par 3 Golf Course to be used for other than golfing activities, it would violate a restrictive covenant that the City had entered into in 1930, an argument unrelated to the urban sprawl and notice issues that they have raised in the instant case.
Because they failed to take advantage of the opportunity afforded them to complain to the City Commission during the review and adoption proceedings that the City's Year 2000 Comprehensive Plan, if adopted as proposed, would not be "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, Falk and the Association do not qualify as "affected persons" entitled to challenge the plan pursuant to Section 163.3184(9), Florida Statutes. Their petition should therefore be dismissed.
Compliance Issues
The compliance issues presented in the instant case are framed by the prehearing stipulation filed by the parties in this matter. See Nest v. Department of Professional Regulation, 490 So.2d 987, 989 (Fla. 1st DCA 1986); Manatee County v. Florida Public Employees Relations 387 So.2d 446, 449 (Fla. 1st DCA 1980) ("It is necessary, therefore, for the administrative agency to take into account due process considerations when dealing with stipulations or agreements of the adversarial parties submitted during the course of administrative hearings"); Gandy v. Department of Offender Rehabilitation, 351 So.2d 1133, 1134 (Fla. 1st DCA 1977) ("[W]hen the issues have been narrowed by stipulation and a party thereby lulled into responding to evidence adduced over his objections outside the issues, such evidence may not be used to his detriment")
These issues, as recited in the prehearing stipulation, are as follows:
Whether the City's Future Land Use Element Policy 1.2q. (land exchange with Hebrew Academy) and FLUM designations for the subject properties constitute proliferation of urban sprawl.
Whether the City's publication of notice of its Plan adoption proceedings in the "Neighbors" Section of the Miami Herald fulfilled the requirements of Section 163.3184(15)(c)
Urban Sprawl
In the prehearing stipulation, Falk and the Association state their position on the urban sprawl issue as follows:
The designations on the Future Land Use Map (FLUM) of a portion of what is currently the Par Three Golf Course as "Public Facility Educational" and the designation of the land located at 2425 Pine Tree Drive currently used as a junior-senior high school by the Hebrew Academy as "Public Facility Other" and Policy 1.2q. of the Future Land Use Element of the City's Plan relating to a proposed exchange of these properties by the City and the Hebrew Academy do not comply with Rule 9J-5.006(3)(b)7, Florida Administrative Code, which rule requires that the plan discourage the proliferation of urban sprawl, inasmuch as they would permit construction of a school building on the Golf Course bite and use of the junior-senior high school building by the City as a facility.
Florida Administrative Code Rule 9J-5.006(3)(b)7, a rule provision adopted by the Department of Community Affairs, provides as follows:
The [future land use element] shall contain one or more specific objectives for each goal statement which address the requirements of
163.3177(6)(a), Florida Statutes, and which:
Discourage the proliferation of urban sprawl.
The Department, in its Technical Memorandum Volume IV, Number 4, has explained what it meant by "urban sprawl" when it made reference to that condition in Rule 9J-5.006(3)(b)7.
The definition of "urban sprawl" set forth in the memorandum is consistent with that generally relied upon by those in the professional planning community. Accordingly, it should be used in evaluating Petitioners' claim that the City's Year 2000 Comprehensive Plan does not comply with the requirement of Rule
9J-5.006(3)(b)7 that "urban sprawl" be discouraged. See Reedy Creek Improvement District v. State Department of Environmental Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986) ("an agency's interpretation of its own rules . . . Is entitled to great deference"); Franklin Ambulance Service v. Department of Health and Rehabilitative Services, 450 So.2d 580, 581 (Fla. 1st DCA 1984) ("An administrative interpretation of an agency's own rule is entitled to great weight" and Should be accepted where it "comports with the plain meaning of the rule") 10/
Because of the extent of the intense urban development that has already taken place in the City of Miami Beach, no part of the City, including the area in which the Par 3 Golf Course and the Fana Holtz Building are located, is susceptible to "urban sprawl," as defined by the Department in Technical Memorandum Volume IV, Number 4. Any new development or redevelopment that occurs in the City will be of the infill variety. Infill development/redevelopment, while it may result in a degradation of the level of service provided by the community's public facilities, 11/ is the antithesis of "urban sprawl."
Inasmuch as Petitioners' allegation that the City's Year 2000 Comprehensive Plan does not comply with Rule 9J-5.006(3)(b)7 is based upon the erroneous premise that the construction of a school building on the Par 3 Golf Course and the conversion of the Fana Holtz Building to a public facility would result in "urban sprawl," this allegation of noncompliance is without merit.
Notice
In the prehearing stipulation, Petitioners state their position on the notice issue as follows:
The Plan was not adopted in accordance with the notice requirements of section 163.3184(15)(c) in that notice of the adoption hearings was published in tide Neighbors Section of the Miami Herald.
Section 163.3184(l5)(c), Florida Statutes, which is incorporated by reference in Florida Administrative Code Rule 9J- 5.005(8), provides in pertinent part as follows:
If the proposed comprehensive plan or plan amendment changes the permitted uses of land or changes 1and-use categories, the required advertisement shall be no less than one-quarter page in a standard size or a tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point. The advertisement shall not be placed in that portion of the newspaper where legal notices and classified advertisements appear. The advertisement shall be published in a newspaper of general paid circulation in the county and of general interest and readership in the community, not one of limited subject matter, pursuant to chapter 50. Whenever possible, the advertisement shall appear in a newspaper that is published at least 5 days a week, unless that only newspaper in the community is published less than
5 days a week.
A "newspaper of general circulation" is defined in Section 163.3164(14), Florida Statutes, as follows:
A "newspaper of general circulation" means a newspaper published at least on a weekly basis and printed in the language most commonly spoken in the area within which it circulates, but does not include a newspaper intended primarily for members of a particular
professional or occupational group, a newspaper whose primary function is to carry legal notices, or a newspaper that is given away primarily to distribute advertising.
Chapter 50, Florida Statutes, which is referred to in Section 163.3184(15)(c), Florida Statutes, requires that all legal notices and advertisements be published in newspapers which are "printed and published periodically once a week or oftener" and which are "for sale to the public generally, available to the public generally for the publication of official or other notices and customarily containing information of a public character or of interest or of value to the residents or owners of property in the county where published, or of interest or of value to the general public." Section 50.011, Florida Statutes.
Petitioners have not shown that the City failed to comply with the foregoing notice requirements in adopting its Year 2000 Comprehensive Plan. Notice of the plan adoption hearings was published in the Miami Herald, albeit in the "Neighbors" section of the newspaper. See Paducah Automotive Trades Association v. City of Paducah, 307 Ky. 524, 211 S.W.2d 660, 663-64 (Ky. App. 1948) (notice of a city ordinance published in a special tabloid section of the city's official newspaper was considered to be published in the official newspaper for purposes of determining compliance with statutory notice requirements). No showing has been made that the Miami Herald is not a "newspaper" of the type in which such a notice must be published pursuant to Section 163.3184(15)(c), Florida Statutes.
Petitioners have not offered any rationale in support of their position that the City's publication of notice of the adoption hearings in the "Neighbors" section of the Miami Herald was legally insufficient. The Hearing Officer surmises, however, based upon the factual stipulations set forth in the prehearing stipulation, that Petitioners view such publication as inadequate because the "Neighbors" section is included in the Miami Herald only twice a week and it is not distributed in every area of Dade County.
That the "Neighbors" section comes out only twice weekly is not a basis upon which to find that the notice given by the City in the instant case did not comply with the requirements Section 163.3184(15)(c), Florida Statutes. While a local government, in accordance with these requirements, must as a general rule place its advertisement in a newspaper which is published at least five days a week, there is no requirement that the advertisement appear in a section of the paper that comes out with such regularity.
Furthermore, under the statutory scheme, an incorporated municipality, such as the City of Miami Beach, is not required to advertise its public hearings in a publication that is distributed in every part of the county in which it is located. While the advertisement must be "published in a newspaper of general paid circulation in the county," this particular requirement is met if the municipality's advertisement appears in a "newspaper of general paid circulation" that is published in (but not necessarily throughout) the country. As the definitional provisions of Section 163.3164(14), Florida Statutes, reflect, "general . . . circulation" refers primarily to the contents of the publication, not its geographical distribution. Cf. Johnson
v. Taggart, 92 So.2d 606, 607-08 (Fla. 1957) (statutory requirement that "the notice for a county tax deed be published in a newspaper which has been published in the county for a period of one year and entered as second-class mail in a post office in the county" was met, notwithstanding that the newspaper containing the notice had no circulation in certain parts of the county; newspaper must "be one of general circulation although it is not required that it "be read by everyone in the county so long as it is available to the general public"); People ex rel. Toman v. 110 South Dearborn Street Building Corporation, 372 Ill. 459, 24 N.E. 2d 373 (Ill. 1939) (statute providing that notice be given in a secular newspaper of general circulation published in the district does not require that the newspaper in which the notice is placed have a general circulation "throughout" the district); Delta & Pine Land Company of Mississippi v. Board of Supervisors of Bolivar County, 228 So.2d 893 (Miss. 1969) (statutory requirement that notice be published "in a newspaper published in said county" was met even though the newspaper carrying the notice was not published in that part of the county where the subject property was located); Great Southern Media Inc. v. McDoweli. County, 284 S.E.2d 457 (N.C. 1981).
The purpose of statutory provisions, such as those found in Chapters 50 and 163, Florida Statutes, which limit the publication of legal notices and advertisements to newspapers meeting certain standards is to ensure that the published material will come to the attention of a substantial number of persons in the affected area. See In re Norwalk Call 41 Cal. Rpt. 666, 397 P.2d 426 (Cal. 1964); Butler v. Lahontan Valley News, 537 P.2d 320, 321 (Nev. 1975). There is no indication in the record that this purpose was thwarted by the City's publication of notice in the "Neighbors" section of the Miami Herald, which is distributed not only in the City of Miami Beach, but in surrounding areas as well.
In view of the foregoing, Petitioners' contention that the City did not comply with the notice requirements of Section 163.3184(15)(c), Florida Statutes, is without merit.
Inasmuch as Petitioners have failed to make a sufficient showing, in support of their allegations, that the City's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3l84(1)(b), Florida Statutes, even if they had standing to advance such allegations in the instant case, the City's determination of compliance, with respect to those matters raised herein by Petitioners, would nonetheless have to be sustained.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1990.
STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13 day of August, 1990.
ENDNOTES
1/ This meeting was not one dealing with the City's proposed Year 2000 Comprehensive Plan, which at the time was still in the process of being prepared. A hearing on the transmittal of this proposed plan was held more than a month later, on July 13, 1989.
2/ The Department of Community Affairs also used the Neighbors section of-the Miami Herald to publish notice of its intent to find the City's Year 2000 Comprehensive Plan "in compliance."
3/ To the extent that Policy 1.2q. may be construed to mean that, until such time as the Hebrew Academy exercises its option, the parcels of property referenced in the policy will have land use designations other than PFE and PF, its provisions are arguably inconsistent with the FLUM, which appears to provide the contrary. Whether such internal inconsistency exists in the plan, however, is a matter that need not be resolved because it was not alleged in Petitioners' petition as a basis upon which the City's Year 2000 Comprehensive Plan should be found not "in compliance." Cf.
Atlantic Coast Line R. Co. v. Johnson 40 So.2d 892, 895 (Fla. 1949)("Regardless of what is disclosed by the evidence the plaintiff must recover, if at all, on the case made by his declaration").
4/ No other speaker at these hearings Purported to be making a presentation on behalf of the Association.
5/ Indeed, no area in the City may be described as "rural" or on the "urban fringe."
6/ Where an administrative proceeding involves a challenge to action of a legislative or quasi-legislation nature such as in the instant case, unless the statute in question provides otherwise, it is the challenger that bears the ultimate burden of persuasion, notwithstanding that the challenger may not be asserting the affirmative on the issue before the tribunal. See Rinker Materials Corporation v. Metropolitan Dade County, 528 So.2d 904, 906 (Fla. 3d DCA 1987) ("In enacting the ordinance amending the Dade County Comprehensive Development Master Plan the county commission was performing a legislative function"); Florida Department of Transportation v J.W.C. Company, Inc., 396 So.2d 778, 787-88 (Fla. 1st DCA 1981) (while, as a general rule, the burden of persuasion is on the party asserting the affirmative of an issue in an administrative proceeding, because rule-making is a "quasi-legislation action" deserving of deference, the burden of persuasion is upon those attacking rule-making action to show that it is an invalid exercise of authority).
7/ The City argues that, in making these remarks Falk was acting only on her own behalf and not also as a representative of the Association. The preponderance of the evidence, however, shows otherwise. While the Association's Board of Directors may not have specifically directed Falk to represent the Association at these public hearings, in speaking on behalf of the Association she was acting within the scope of her authority. (Cf. American Ladder & Scaffold Co. v. Miami Ventilated Awninq Mfg. Co., 161
So.2d 699, 700 (Fla. 3d DCA 1964) ("An agent's authority need not be conferred in express terms, but may be implied or apparent under justifying circumstances").
8/ A local government, however, is estopped from contending that a challenger to its adopted comprehensive plan failed to make the requisite pre-adoption objections if the local government wrongfully denied the challenger the opportunity to submit such objections. Cf. Carter v. Carter, 88 So.2d 1-93, 157 (Fla. 1956) ("It is an axiom of the common law, supported by admirable concepts of common justice, that no person should be permitted to benefit from his own wrong. It is offensive to our sense of right that a wrongdoer be allowed to exploit His wrongs to the injury of another and to the profit of himself").
9/ This prerequisite to the filing of a petition pursuant to Section 163.3184(9), Florida Statutes, is not unlike the exhaustion requirement imposed upon those seeking circuit court certiorari review of zoning decisions. See First City Savings Corporation of Texas v. S & B Partners, 548 So.2d 1156, 1158 (Fla. 5th DCA 1989)("As long as due process is afforded, the circuit court in a certiorari proceeding should not fault the zoning authority for refusing to consider issues which were not properly presented before it at the public hearing;" opponents of rezoning application approved by the counts commission, who had appeared before the county commission and objected to the requested rezoning, were not able to raise issues on certiorari that they had not submitted to the county commission for its consideration).
10/ An agency, however, may not "place a construction on a rule which is clearly contradictory to the unambiguous language of the rule." See Kearse v. Department of Health and Rehabilitative Services, 474 So.2d 819, 820 (Fla. 1st DCA 1985). In issuing Technical Memorandum Volume IV, Number 4, the Department has not run afoul of this prohibition.
11/ The City's Year 2000 Comprehensive Plan has provisions designed to limit the extent of degradation that will be permitted. For instance, Objective 2 of the Capital Improvement Program Element provides as follows:
The City, as of 1990, shall not issue any building permits or development orders for new developments or redevelopments unless the existing infrastructure (i.e water, sanitary sewer, transportation and solid waste) meets or is upgraded to meet the permitted level of service to support the increase in demand by the proposed development.
Likewise, Objective 7 of that same element contains the following provisions:
Starting January 1, 1990, no new development, except those for which a building permit was issued by the City prior to the effective date of the ordinance adopting the Miami Beach Comprehensive Plan, shall begin construction unless the public facilities needed to support the development are at the permitted level of service standards adopted in the plan and land use decisions will be coordinated with available projected
fiscal resources with a C.I.P. schedule.
Accordingly, to the extent that Petitioners suggest that the City's Year 2000 Comprehensive Plan permits the Hebrew Academy to construct a school building on the Par 3 Golf Course and the City to convert the Fana Holtz Building to government use regardless of the impact these activities will have on the public facilities referenced in the foregoing plan provisions, they are wrong.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6803GM
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the City and the Department: The City's Proposed Findings of Fact
1.1-1.3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
1.4-1.5. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
1.6-1.8. Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
Rejected because it would add only unnecessary detail.
1. 14. Accepted and incorporated in substance. 2.1-2.18. Accepted and incorporated in substance.
2.19-2.20. Rejected because they would add only unnecessary detail.
2.21-2.28. Accepted and incorporated in substance.
2.29-2.30. Rejected because they would add only unnecessary detail.
2.31-2.33. Accepted and incorporated in substance.
2.34-2.36. Rejected because they would add only unnecessary detail.
2.37-2.40. Accepted and incorporated in substance.
2.41-2.44. Rejected because they would add only unnecessary detail.
2.45-2.46. Accepted and incorporated in substance.
2.47. Rejected because it would add only unnecessary detail. 2.48-2.49. Accepted and incorporated in substance.
2.50. Rejected because it would add only unnecessary detail. C.1-5. Accepted and incorporated in substance. The
Department's Proposed Findings of Fact
1-7. Accepted and incorporated in substance.
8. Rejected because it is not supported by persuasive competent substantial evidence.
9-11. Accepted and incorporated in substance.
12. Rejected because it would add only unnecessary detail. 13-15. Accepted and incorporated in substance.
16-17. Rejected because they would add only unnecessary detail.
18. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it would add only unnecessary detail.
19-21. Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent substantial evidence.
Accepted and incorporated in substance.
COPIES FURNISHED:
Richard J. Grosso, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Michael A. Lipsky, Esquire
444 Brickell Avenue Suite 1010
Miami, Florida 33131
John Dellagloria, Esquire Sandra W. Schneider, Esquire Office of the City Attorney City of Miami Beach
1700 Convention Center Drive Miami Beach, Florida 33319
Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
G. Steven Pfeiffer, Esquire General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
MILDRED FALK and MIAMI BEACH HOMEOWNERS ASSOCIATION,
Petitioners,
vs. DOAH CASE NO. 89-6803GM
CITY OF MIAMI BEACH and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
/
FINAL ORDER
On August 13, 1990, a Hearing Officer of the Division of Administrative Hearings entered his Recommended Order in this proceeding. The Recommended Order was received by the Department of Community Affairs ("Department" hereafter) on August 14, 1990. A copy is attached to this Order as Exhibit A.
BACKGROUND
This is a proceeding in which the Petitioners, Mildred Falk and Miami Beach Homeowners Association, have challenged the comprehensive plan adopted by the City of Miami Beach ("City" hereafter) in accordance with the Local Government Comprehensive
Planning and Land Development Regulation Act, Ch. 163, Part II, Fla. Stat. ("Act" hereafter). The Department issued its Notice of Intent to find the comprehensive plan in compliance with the Act. Petitioners filed a petition in accordance with Sec. 163.3184(9), Fla. Stat., alleging that the plan was not in compliance with the Act for reasons that are summarized below. The Department forwarded the petition to the Division of Administrative Hearings. A Hearing Officer was assigned, and the final hearing was conducted on May 22 and 24, 1990, in Miami Beach. Another petition challenging the City's Comprehensive Plan was filed by different parties. That petition was also forwarded to the Division of Administrative Hearings, where it was given Case No.
89-6804GM. Issues raised in the two proceedings were distinct, and the proceedings were not consolidated. The hearing in Case No. 89-6804GM was conducted immediately following the hearing in the instant proceeding. The Hearing Officer has not yet entered a recommended order in Case No. 89-6804GM.
In his Recommended Order in this proceeding, the Hearing Officer made detailed findings of fact and conclusions of law. He determined that the comprehensive plan was in compliance with the Act, and recommended that the Department enter a final order finding the plan in compliance. Petitioners and the Department have filed exceptions to the Recommended Order. The City has filed a response to the Department's exceptions.
RULINGS ON EXCEPTIONS
PETITIONERS' EXCEPTIONS Petitioners' Exception 1
Petitioners' first exception states: "The Findings of Fact and Conclusions of Law are contrary to the facts and/or the law."
The Department's Rule 9J-11.012 (8) (g), Fla. Admin. Code provides that exceptions must state with particularity the basis for asserting that the Hearing Officer erred in making or omitting specific findings of fact, conclusions of law, or recommendations. Petitioner's first exception falls far short of this requirement.
The Department can reject findings of fact in the Recommended Order only if it determines from a review of the complete record that findings are not supported by competent substantial evidence, or that the proceedings departed from essential requirements of law. Sec. 120.57 (1) (b) 10, Fla. Stat. Petitioners have not demonstrated that the findings of fact in the Recommended Order are not supported by competent substantial evidence in the record. There is nothing in the record or in Petitioner's exceptions that suggests that the proceedings were conducted other than in
accordance with legal requirements. While the Department can reject or modify conclusions of law, and has done so in this proceeding as set out below, this exception provides no guidance as to what conclusions Petitioners contend are contrary to law.
Petitioners' first exception is rejected.
Petitioners' Exception 2
Petitioners contend that the Hearing Officer failed to consider that Petitioner Mildred Falk is known to the City to represent both herself and the Petitioner Homeowners Association.
In order to demonstrate the requisite interest to establish standing to challenge a local government comprehensive plan, an affected person must have submitted oral or written objections during the local government's review and adoption proceedings.
Sec. 163.3184 (1) (a), Fla. Stat. In this instance, both Ms. Falk and the Association have established that they own property within the City. They are therefore "affected persons" within the meaning of the Act. The City raised an issue as to whether Ms.
Falk's statements in public hearings constituted statements of the Association because she did not expressly identify herself as speaking for the Association.
Petitioners' exception to the Hearing Officer's conclusions in this respect is misplaced. The Hearing Officer expressly concluded in Footnote 7 to Paragraph 17 of his Conclusions of Law that Falk's statements were made on her own behalf and on behalf of the Association. He based this conclusion on the facts that Ms. Falk regularly appeared before the City Commission representing the Association, that she was well known to appear in that capacity, that she was registered with the City as a lobbyist for the Association, and that she had been authorized by the Association to appear in that capacity.
The Hearing Officer concluded that both Petitioners lacked standing because objections made by Ms. Falk were not adequate to constitute objections within the meaning of the Act. While these conclusions have been rejected in this Order, the conclusion that Ms. Falk appeared on behalf of the Association is not rejected.
Petitioners' second exception is rejected.
Petitioners' Exception 3
Petitioners contend that the Hearing Officer failed to consider that objections raised by Ms. Falk included an objection to "green space." Presumably, it is their position that since Ms. Falk mentioned green space she therefore raised issues regarding
urban sprawl, and her objections should have been found sufficient by the Hearing Officer. The Department has rejected the Hearing Officer's conclusions that Ms. Falk's objections were not sufficient to constitute objections within the meaning of the Act. Therefore whether her saying "green space" constitutes an objection raising issues relating to urban sprawl does not need to be addressed.
Petitioner's third exception is rejected.
Petitioners' Exceptions 4, 5 and 7
Petitioners contend that the Hearing Officer failed to consider that the "Neighbors" section of the Miami Herald is not distributed throughout Dade County, and that because the City is a tourist area, notice requirements dictate notice throughout the County. The City published its notices of public hearings regarding adoption of its comprehensive plan in a section of the Miami Herald that is published twice weekly and distributed in Miami Beach and other municipalities in eastern Dade County, but not throughout Dade County. This is the "Neighbors" section. For the reasons stated by the Hearing Officer in paragraphs 29- 38 of his conclusions of law, the Department has determined that this publication meets the notice requirements of the Act.
Petitioners fourth, fifth and seventh exceptions are rejected.
Petitioners' Exception 6
Petitioners' challenge to the City's comprehensive plan relates to provisions of the plan that recognize action previously taken by the City to trade a portion of a Par-3 Golf Course owned by the City for adjoining property and a building that is owned by a religious institution. The institution plans to use the golf course land to expand a school which it operates. The City intends to use the building it is obtaining to house various government offices. The golf course will be maintained, but it will be diminished in size, and undoubtedly will be less desirable a golf course than it is now.
Petitioners contend that the Hearing Officer failed to consider proposed use of part of a golf course for office purposes as constituting urban sprawl. A golf course is an urban use, and in the case of the golf course in this proceeding, it is an urban use in an otherwise heavily urban area. The Department's rules require that local government comprehensive plans discourage proliferation of urban sprawl. Rule 9J-5.006 (3) (b) 7, Fla.
Admin. Code. Failure to meet this requirement constitutes grounds for finding a plan not in compliance with the Act. Charlotte
County v. Department of Community Affairs, ER FALR 90:130 (Administration Commission 1990). However, transferring an urban use such as a golf course to another urban use such as an office building in an area that is already urban does not constitute urban sprawl.
Petitioner's sixth exception is rejected.
Petitioners' Exceptions 8 10 and 11
Petitioners contend that the Hearing Officer overlooked the adverse impacts upon the golf course, and did not consider effects on wildlife. The Hearing Officer's findings of fact regarding the golf course are supported by competent substantial evidence in the record. While it can be argued that diminishing the golf course is less desirable than obtaining office space, Petitioners have failed to demonstrate that the policy choice renders the City's plan not in compliance with the Act.
Petitioners' eighth, tenth and eleventh exceptions are rejected.
Petitioners' Exception 9
The grounds for the challenge set out in the petition are that the property transfer violates deed restrictions, fails to discourage urban sprawl, may violate State and Federal Constitutional provisions related to establishment of a religion, was not done for a valid public purpose, and was done without any appraisal designed to assure equalization of the value of property being exchanged. The Hearing Officer granted a motion to dismiss filed by the City, and declined to consider issues other than those related to urban sprawl and procedural irregularities.
Petitioners contend that the Hearing Officer should have addressed the other issues. Their contention is rejected. The issue in this proceeding is whether the City's adopted comprehensive plan is in compliance with the Act. "In compliance" is defined at Sec. 163.3184 (1) (b), Fla. Stat. to mean consistent with provisions of the Act, the State Comprehensive Plan, the appropriate regional policy plan, and the Department's rules set out at Ch. 9J-5, Fla. Admin. Code. Constitutional and contractual issues raised by Petitioners may or may not be subject to resolution in some other proceeding by some other forum, but they do not relate to whether the City's plan is in compliance with the Act.
Petitioners ninth exception is rejected.
DEPARTMENT'S EXCEPTIONS
The Department takes exception to conclusions of law set out in Paragraphs 17, 18, and 19 of the Conclusions of Law in the Recommended Order. The Hearing Officer equated the meaning of the term "objection" that is defined in the Department's rules relating to review of local government comprehensive plans by the Department (Ch. 9J-11, Fla. Admin. Code) with the meaning of the term "objection" as it is used with regard to the requirement that affected persons make objections during review and adoption proceedings in order to secure standing. The definition in the rule requires some detail on the part of the Department when it submits its "Objections, Recommendations and Comments Report" to the local government. Imposing the same level of detail on private citizens making objections in order to secure standing would severely limit the sort of public comment that would confer standing.
The Department has rejected the Hearing Officer's conclusions set out in paragraphs 17, 18, 19, and 20 of the Conclusions of Law in the Recommended Order for the reasons set out below. The Department's exceptions are therefore granted.
FINDINGS OF FACT
The Findings of Fact set out in the Hearing Officer's Recommended Order are hereby adopted, and are incorporated herein by reference.
CONCLUSIONS OF LAW
Conclusions of Law 1-16, and 21-39 set out in the Hearing Officer's Recommended Order are hereby adopted, and are incorporated herein by reference.
Conclusions of Law 17, 18, 19, and 20 set out in the Hearing Officer's Recommended Order, and footnotes to these conclusions are hereby rejected. The following conclusions of law are substituted for the rejected conclusions.
Both Petitioners established that they are "affected persons" within the meaning of the Act. In order to demonstrate their standing to challenge the City's comprehensive plan, Petitioners must also demonstrate that they made objections during review and adoption proceedings conducted by the City after the Department issued its "Objections, Recommendations and Comments Report" and before the City adopted the plan. Sec. 163.3184 (1) (a), Fla. Stat.; Austin v. Department of Community Affairs, ER FALR 89: 0128 (Administration Commission, 1989). The only
remarks Petitioner Falk or the Petitioner Association directed to the City Commission during the review and adoption proceedings were those made by Falk during her oral presentations at the September 7 and 21, 1989, public hearings held by the City Commission. The City contends that these remarks did not constitute "objections," as that term is used in Sec. 163.3184 (1) (a), Fla. Stat., and that therefore neither Falk nor the Association have standing to challenge the City's plan. The City's contention is rejected.
The Act does not contain a definition of the term "objection." A definition of the word does appear in rules of the Department that establish procedures for review of local government comprehensive plans. Rule 9J-11.002 (6),
Fla. Admin. Code provides:
"Objection" means a statement which identifies a portion of a comprehensive plan or plan amendment that is not consistent with one or more provisions of Section 163.3177, 163.3178, 163.3191, Florida Statutes, the state comprehensive plan, the appropriate comprehensive regional policy plan, or Chapter 9J-5, Florida Administrative Code.
This definition applies throughout Ch. 9J-11, Fla. Admin. Code. Nothing in the Chapter, however, purports to set standards for "objections" that are made by affected persons during a local government's review and adoption proceedings. The term "objection" is used in Ch. 9J-11, only to describe objections that are made by the Department in connection with its review of a proposed plan, and by other agencies that provide reports to the Department to assist in the Department's review of proposed plans. Rules 9J-11.008 (5); 9J-11.009 (5); 9J-11.010 (2), (3); 9J-11.011 (3) (c); 9J-
11.012 (2), Fla. Admin. Code. The only reference in the rule to objections by affected persons relate to allegations that must be included in a petition challenging a local government comprehensive plan in the event that the Department issues a notice of intent to find the plan in compliance with the Act. Rule 9J-11.012 (8) (a) 5, Fla. Admin. Code.
These rules are not intended to impose the strict requirements for making objections on private persons that the Department has imposed on itself. To do that would limit the ability of members of the public to perfect their standing to challenge local government comprehensive plans. The intent of the Legislature to promote public participation in the process is clearly stated in the Act.
Section 163.3181, Fla. Stat. provides:
It is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible. Towards this end, local planning agencies and local governmental units are directed to adopt procedures designed to provide effective public participation in the comprehensive planning process and to provide real property owners with notice of all official actions which will regulate the use of their property. The provisions and procedures required in this act are set out as the minimum requirements towards this end.
During consideration of the proposed plan or amendments thereto by the local planning agency or by the local governing body, the procedures shall provide for broad dissemination of the proposals and alternatives, opportunity for written comments, public hearings as provided herein, provisions for open discussion, communications programs, information services and consideration of and response to public comments.
This clear intention to open the planning process to the fullest possible public participation was carried over in the Act to very liberal provisions governing who has standing to intervene in formal proceedings related to whether a plan is in compliance with the Act, or to initiate such proceedings. "Affected persons" have these rights. To be an affected person, one need only own property, reside, or own or operate a business within the boundaries of the local government whose plan is the subject of review. Sec. 163.3184 (1) (a), Fla. Stat. This list of "affected persons" is not even exclusive. The definition "includes" the designated interests, and, properly construed, would confer standing on persons whose interests are similar to those enumerated.
It would be contrary to the Legislative prescription to open the process if, in order to secure standing, private citizens were required to make objections that meet technical requirements for sufficiency that are properly imposed upon agencies whose responsibilities include developing expertise in reviewing local government comprehensive plans. Such a construction would mean that persons who support provisions of comprehensive plans could never gain standing to intervene in plan review proceedings
in support of local governments. Such parties have been allowed to participate in numerous plan review proceedings, and their participation has been found appropriate in final orders issued by the Administration Commission and by the Department. Charlotte County v. Department of Community Affairs, ER FALR 90: 130 (Administration Commission, 1990); Sunshine Ranches Homeowner's Association. Inc. v. Broward County, ER FALR 90: 157 (Department of Community Affairs, 1990).
The comments made by Ms. Falk at public hearings conducted by the City may not have artfully identified how provisions of the plan to which she clearly had objections failed to meet requirements of the Act. It had to be perfectly clear to everyone, however, that she objected to the plan, and her objections related to provisions dealing with diminishing the size of the golf course. Her statements at the public hearings were sufficient to constitute objections under Sec. 163.3184 (1) (a), Fla. Stat.
The City has contended that when Ms. Falk made statements at the public hearing she was acting only on her own behalf and not also as a representative of the Association. Findings of Fact in the Recommended Order, which are supported by competent substantial evidence show otherwise. While the Association's Board of Directors may not have specifically directed Ms. Falk to represent the Association at these public hearings, in speaking on behalf of the Association she was acting within the scope of her authority.
Petitioners, Mildred Falk and Miami Beach Homeowners Association, are affected persons within the meaning of the Act. They made objections to the plan during review and adoption proceedings conducted by the City. Petitioners have standing to challenge the plan in accordance with Sec. 163.3184 (9), Fla. Stat.
This order does not finally resolve all issues regarding whether the City's plan is in compliance with the Act. Another challenge to the plan remains pending at the Division of Administrative Hearing as Case No. 89-6804GM.
ORDER
The Comprehensive Plan adopted by the City of Miami Beach is determined to be in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act as against the challenge filed by Petitioners Mildred Falk and Miami Beach Homeowner's Association.
NOTICE OF RIGHTS
The parties to this proceeding are hereby advised of their right to seek judicial review of this Final Order pursuant to Section 120.68, Fla. Stat., and Florida Rules of Appellate Procedure 9.030 (1) c and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Rhyne Building, 2740 Centerview Drive, Tallahassee, Florida 32399-2100, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. A Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22 (3), Fla. Stat.
DONE and ORDERED this 12th day of September, 1990.
Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Copies Furnished:
Michael A. Lipsky, Esquire
444 Brickell Avenue Suite 1010
Miami, Florida 33131
John Dellagloria, Esquire Sandra W. Schneider, Esquire Office of the City Attorney City of Miami Beach
1700 Convention Center Drive Miami Beach, Florida 33319
Stephenie Gehres, Esquire Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Stuart M. Lerner, Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Aug. 13, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 12, 1990 | Agency Final Order | |
| Aug. 13, 1990 | Recommended Order | Contention that plan did not comply with rule re: urban sprawl and that it was adopted in violation of statutory notice requirements rejected. |
