STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) CASE NO. 91-6765GM
)
CITY OF POMPANO BEACH, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on March 11, 1992, in Pompano Beach, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Karen Brodeen, Esquire
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
For Respondent: Gordon Linn, Esquire
Assistant City Attorney
P. O. Drawer 1300
Pompano Beach, Florida 33061 STATEMENT OF THE ISSUE
The issue in this case is whether a comprehensive plan amendment, adopted by Respondent pursuant to Ordinance No. 91-77, is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
PRELIMINARY STATEMENT
On September 3, 1991, the City of Pompano Beach (the "City"), adopted Ordinance No. 91-77. Because the Ordinance changed the City's future traffic circulation map which was adopted as a part of the City's comprehensive plan in June of 1989, the City sent the Ordinance to the Department of Community Affairs ("DCA") for review pursuant to Section 163.3184, Florida Statutes. DCA reviewed the Ordinance and determined the Ordinance to be not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DCA published notice of its determination and, on October 24, 1991, timely filed a petition for formal hearing with the Division of Administrative Hearings ("DOAH") pursuant to Section 163.3184(10), Florida Statutes. DOAH noticed and conducted a hearing pursuant to that statute and Section 120.57, Florida Statutes.
DCA's Petition for Formal Hearing referred to two ordinances adopted by the City which were allegedly not in compliance: Ordinance No. 91-77 and Ordinance No. 91-78. At the commencement of the hearing, DCA advised that Ordinance No.
91-78 was "in compliance" and, therefore, the hearing dealt only with Ordinance No. 91-77. Ordinance No. 91-77 amended the Traffic Circulation Element of the City's Comprehensive Plan by removing a segment of a local right-of-way from the traffic circulation network.
At the final hearing, DCA presented the testimony of five witnesses: Lucia Dende-Gallio, the planning director for the City; Robert Pennock, the Chief of the Bureau of Local Planning for DCA who was accepted as an expert in the area of comprehensive planning and growth management under Chapter 163, Florida Statutes and Rule 9J-5, Florida Administrative Code; William Cross, a transportation planning engineer with the Florida Department of Transportation who was accepted as an expert in transportation planning; Anita Vanderbalk, a transportation planning engineer for the Florida Department of Transportation who was accepted as an expert in the area of transportation planning; and Robert Fox, a planner with the Bureau of Local Planning of DCA who was accepted as an expert in the area of comprehensive planning. DCA offered thirteen exhibits into evidence all of which were accepted.
The City presented the testimony of six witnesses: Horace Korn, the district administrator for survey and mapping with the Florida Department of Transportation; Lisa Lukes-McQuade, a senior planner with the South Florida Regional Planning Council; Martin Berger, who handles transportation issues for the Broward County Office of Planning; David Fradley, a licensed civil engineer; Andrew G. Sebo, a traffic engineer who was accepted as an expert in traffic engineering; and Walter Keller, Jr., a consulting engineer and planner who was accepted as an expert in engineering and planning. The City offered three exhibits into evidence all of which were accepted. Petitioner's relevancy objections to the City's Exhibits No. 2 and 3 were overruled. At the hearing, copies were not available of the complete applications that comprised the City's Exhibit No. 3. The City filed complete copies of the applications on March 18, 1992.
At Petitioner's request, Official Recognition has been taken of Chapters
163 and 187, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
A transcript of the hearing has been filed. Both parties timely submitted proposed recommended orders in accordance with the schedule established at the conclusion of the hearing. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:
The Parties and the Amendment
DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments. Final agency action with regard to plans and plan amendments found not "in compliance" by DCA is taken by the Governor and Cabinet, sitting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes.
The City is a municipality located in Broward County. As a municipality, it is required by Chapter 163, Part II, Florida Statutes, to adopt a comprehensive plan.
The City adopted its comprehensive plan (the "Comp Plan") in June of 1989. The two planning periods addressed in the Comp Plan are five year and ten year periods.
Subsequent to adoption of the Comp Plan, the City has adopted at least two amendments which were found to be "in compliance" by DCA. A third amendment, which was adopted at the same time as the amendment at issue in this proceeding, was the subject of a "compliance agreement" at the time of the hearing in this case.
The amendment which is at issue in this case was adopted by the city on September 3, 1991 as Ordinance No. 91-77. (This amendment is hereinafter referred to as the "Amendment" or the "Plan Amendment"). The Amendment revised the Recommended Traffic Circulation Plan Map and the Future Functional Classification Map of the City's Comprehensive Plan to remove approximately
10.46 acres of Oaks Drive right-of-way, a local road, from the traffic circulation network. The portion involved was the northern segment located from Oaks Way to Oaks Terrace.
Prior to adoption of the Amendment, a draft of the proposal was reviewed by DCA which issued its objections, recommendations and comments in the form of a letter to the Mayor of the City dated July 5, 1991. (This letter is hereinafter referred to as the "ORC.") After receiving the ORC, the City adopted the Amendment. The adopted Amendment was not changed from the proposed amendment. Following the adoption of the Amendment, the City transmitted to DCA the following: a September 4, 1991 transmittal cover letter; Ordinance No. 91- 77; the Traffic Circulation Element goals, objectives and policies from the Comp Plan in place at the time of the Plan Amendment; the application for the Plan Amendment submitted by the developer to the City; a traffic circulation study prepared by Tinter Assoc. (the "Tinter Study") which was part of the application; and the City's Response to DCA's ORC. After receipt and review of the adopted Amendment and the other documents in the transmittal package, DCA initiated this proceeding.
The Site and the County Plan
The segment of road which is abandoned by the Amendment is adjacent to the "Oaks Tract", a 51.7 acre site within a development known as the Palm Aire Development. The Palm Aire Development lies to the west of Powerline Road, east of Florida's Turnpike, and south of Atlantic Boulevard. The Oaks Tract is part of the northern portion of the Development and is bordered by Broward County Water Management District No. 4 Canal on the west and South Florida Water Management District C-14 Canal on the north and east. Beyond the C-14 Canal to the north is Atlantic Boulevard. To the south of the site is a golf course and condominiums which are part of the Palm Aire Development.
The Comp Plan's data and analysis describes Atlantic Boulevard as the City's main arterial. It is a six lane road from Florida's Turnpike east to I-
95 and a four lane road from I-95 to its eastward terminus at the beach. The data and analysis notes that future plans along Atlantic Boulevard include the construction of an interchange at Florida's Turnpike. The Palm Aire Development
is one of the facilities which the data and analysis mentions as served by Atlantic Boulevard.
The segment of Atlantic Boulevard at issue in this proceeding is the portion of Atlantic Boulevard west of Powerline Road.
The plat for the Oaks Tract Subdivision, which is described as Palm Aire Oaks Course Estates Section 3, was approved by the Broward County Commission and recorded in 1980. At that time, the subdivision was planned for 1182 high-rise units. In 1986 or 1987, the County and owners of the subdivision entered into an agreement which resulted in an amendment to the subdivision's development level. Based on this revised agreement, the Oaks Tract Subdivision was planned for 1180 units of mixed types: single family detached units, townhouse units, garden apartments, and high-rise units. In other words, the development plan was no longer exclusively high-rise multi-family units.
Impact fees were assessed by the County when the plat was initially approved. Additional road impact fees were assessed at the time of the change in the development mix.
At the time of the original plat approval, the owners of Oaks Tract conveyed the Oaks Drive right-of-way to the City. As of the date of the hearing in this case, most of the Oaks Drive right-of-way was not paved. Only a small portion at the beginning and end of this segment had been paved.
When the original plat was approved and recorded in 1980, there was no segment of Atlantic Boulevard to the north of Oaks Tract. That portion of Atlantic Boulevard was not constructed until the mid-1980's.
At the time of original plat approval, neither the County nor the City analyzed or required concurrency. The City did not have any concurrency requirements until January 1, 1990, when such requirements first appeared in the City's land development regulations. The County first implemented concurrency requirements in 1989. Under the County's current regulations, a concurrency analysis is done prior to plat approval. While the current procedure for plat approval necessarily includes a determination that the traffic concurrency requirements of the regional road network have been met, such a determination was not required in 1980 when the plat for the Oaks Tract was approved.
The Broward County Comprehensive Plan (the "Broward Comp Plan") was adopted in March of 1989. In the Traffic Circulation Element of the Broward Comp Plan, the adequacy of the regional road network is addressed. The regional road network consists of state arterial and collector roads and all county collector roads.
FDOT Road Classifications And Level Of Service Standards
The Florida Department of Transportation ("FDOT") is responsible for classifying roadways into hierarchical categories based on overall function in the regional transportation system. FDOT has adopted a functional classification system which categorizes the various roadway systems as part of the State Highway System, the County Road System or the City Street System. The State Highway System is a network of regional roads whose primary purpose is to move and transport people and goods in an efficient and safe manner. The roads in this network serve intrastate, intra-regional and intra-urban area trips. They are not designed to provide access to or serve adjacent land, which is a function of local roads.
As noted above, the segment of Atlantic Boulevard at issue in this case is classified as a principal arterial road. It is part of the State Highway System. A principal arterial road is the highest level of road under the FDOT functional classification system. A principal arterial is a major highway serving regional activity centers and is designed primarily to move traffic, not provide access to adjacent land.
Under the FDOT Highway Capacity Manual, roads are rated from "A" to "F" to measure the quality of service of a road. This FDOT manual sets forth level of service standards based on the speed which an average driver can maintain over a section of road. A level of service of "A" is the highest rating and "F" is the lowest.
Under the FDOT Highway Capacity Manual, the level of service standard for an arterial road is "D" which reflects an average travel speed of 17 miles per hour. An arterial road which operates under capacity would reflect an average travel speed of under 17 miles per hour. The "E" level of service describes arterial roads with an average travel speed of between 13-16 miles per hour. If an arterial operates at less than 13 miles per hour, it is described as operating at a level of service of "F".
Several factors affect the average travel speed of a road. The primary factor which slows travel speed is signalized intersections. Other factors include whether the road is divided, the level of development adjacent to the road, the number of driveways, and the types of traffic.
FDOT rules relating to minimum level of service standards require principal arterials, such as Atlantic Boulevard, to operate at a level of service of "D". The comprehensive planning process seeks to insure that local land use decisions are consistent with these level of service standards. The type of analysis for arterial roads recognized and strongly recommended by FDOT to measure level of service is a peak hour analysis. Peak hour analysis is based on operating conditions of the 30th busiest hour in the year.
Level Of Service For Atlantic Boulevard
In order to assess whether the level of service for a road in the regional road network has been exceeded, Broward County developed and applies a "trips model." This "trips model" considers both trips generated by existing development and expected trips from committed development. Committed development is unbuilt development which has been vested or otherwise approved through development order for future development activity.
When the County determines that a property is vested, the traffic is considered as committed on the regional road network. The determination applies to a certain level of development and does not designate specific roads for which the trips are vested.
Around the time of the adoption of the Broward Comp Plan, the County made an assessment of the regional transportation network. The County determined that any road segment that was operating at level of service "D" or better just prior to the adoption of the Broward Comp Plan would be assigned a level of service standard of "D" in the Broward Comp Plan. The level of service standard adopted in the Broward Comp Plan in March of 1989 for the pertinent segment of Atlantic Boulevard is "D." This level of service standard has not been amended and remains in effect. To establish this standard, the County
applied the "trips model" to the portion of Atlantic Boulevard to the north of the Oaks Tract and determined that, based on existing and committed development, this portion of Atlantic Boulevard was operating at a level of service of "D" or better. This analysis took into consideration the Palm Aire Development, including the Oaks Tract. The County concluded that development of the Oaks Tract was vested and calculated 5300 vested trips per day for the Oaks Tract Subdivision.
In Broward County, municipal plans are required by the County to be at least as stringent on level of service standards as the County's plan. The City has adopted the County's standard for Atlantic Boulevard in the traffic circulation elements, goals and objectives of its Comp Plan.
In the data and analysis submitted by the City to DCA in support of its Comp Plan, a system overview and analysis of the existing roadway conditions for daily and peak hour periods is set forth. Based on this analysis, the City developed a travel demand modeling process to identify future traffic conditions for short-range (1994) and long-range (2010) planning periods.
The Comp Plan's data and analysis includes existing traffic volumes based on peak season and average daily traffic analysis. "Peak season" is considered to be the first quarter of the calendar year while average daily conditions reflect a year round situation based on the average of traffic counts performed in winter and summer seasons.
Traffic Circulation Policy 02.05.02 of the Comp Plan provides:
After January 1990, or when required by state statute, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS [level of service] "D" on all arterial and collector roadways where existing plus committed traffic allows and maintain traffic conditions on all other roadway segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City.
In Traffic Circulation Policy 02.05.02, the City establishes level of service standards for all arterial and collector roadways, where existing plus committed traffic allows, as "D" based on both daily and peak hour (not peak season) analyses. In order to be consistent with this policy, a level of service of "D" must be maintained under both daily and peak hour analysis.
Rule 9J-5.0055(1)(d), Florida Administrative Code, requires that, in analyzing and establishing level of service standards for roads, a local government must, to the maximum extent feasible, adopt level of service standards which are compatible with the level of service standards established by FDOT. In addition, the local government should insure that adopted level of service standards will be maintained prior to issuance of a development order.
Oaks Drive
The Oaks Drive right-of-way is designated a local collector road in the City's Comp Plan. This right-of-way is depicted on the Comp Plan's future traffic conditions map series. The Plan Amendment which is the subject of this proceeding would change two of the four maps in that series, the "Recommended Traffic Circulation Plan" and the "Future Functional Classifications" maps, to reflect the removal of this right-of-way.
The Oaks Drive right-of-way, as originally conveyed to the City, provided two access points into and out of the Oaks Tract Subdivision. Neither of those access points was directly connected to Atlantic Boulevard.
The Bridge To Atlantic Boulevard
In approximately May of 1989, the developer of Oaks Tract requested a roadway alteration permit from FDOT to build a bridge over the C-14 canal and connect the Oaks Tract Subdivision with Atlantic Boulevard. The application did not indicate, nor could it be gleaned from the information contained therein, that the Oaks Drive right-of-way would be abandoned at a future date. In order to receive the FDOT permit, neither the developer nor the City was required to demonstrate that the level of service on Atlantic Boulevard would be maintained.
The road alteration permit was issued in approximately September of 1989. At the time of the hearing in this case, the access road and bridge between Atlantic Boulevard and the Oaks Tract was completed and approximately
$450,000 had been expended on construction and engineering costs.
Subsequent to the issuance of the roadway alteration permit, the developer of Oaks Tract requested the City to abandon the Oaks Drive right-of- way. The City advised the applicant that the abandonment would require an amendment to the Comp Plan as well as an abandonment authorization. Three right-of-way vacation requests were submitted to the City by the owners of Oaks Tract on October 12, 1990, March 13, 1991 and April 23, 1991.
The right-of-way abandonment requests were forwarded to FDOT for approval. The requests did not reflect or reveal that, as a result of the abandonment, the only access to Oaks Tract would be across the new bridge spanning the C-14 canal to Atlantic Boulevard. This result was not clearly reflected in any information provided to FDOT prior to the initiation of this case. Because the right-of-way was not adjacent to a state road and the requests as written did not appear to affect a state road, FDOT did not raise any objection to the abandonments. At the hearing in this case, FDOT's representatives testified that the FDOT now objects to the vacation of the right-of-way because it would result in an exclusive access to Oaks Tract via the bridge to Atlantic Boulevard. FDOT is concerned that, by creating an exclusive access, all of the traffic generated by the development would be routed to Atlantic Boulevard thereby lowering the level of service on Atlantic Boulevard.
DCA Review Of The Amendment
The City approved the right-of-way abandonment requests submitted by the developer. Ultimately, the City also adopted the Plan Amendment to modify the Comp Plan to reflect the removal of Oaks Drive from the traffic circulation network. As noted above, prior to adopting the Amendment, the City sent the
proposed Amendment to DCA for review as required by Section 163.3184, Florida Statutes, and Rule 9J-11.006(1), Florida Administrative Code.
The documentation submitted to DCA included the Tinter Study. This Study is a "build-out" study which assesses traffic circulation patterns after the Oaks Tract development is completed. The time frame for build-out was estimated to be three years. Therefore, the Study addresses a projected three year period in the future. The Tinter Study was designed to support the right- of-way abandonment request, not the Comp Plan amendment.
The Tinter Study is insufficient to support an amendment to the Comp Plan because its focus is too limited. The Study is concerned only with the impact of development from the Oaks Tract subdivision. To support a future traffic conditions map amendment, the impacts of other development which may occur in the area throughout the entire planning period (through year 2010), not just the impacts of the Oaks Tract subdivision over the next three years, should have been analyzed in order to properly evaluate whether the level of service will be maintained on Atlantic Boulevard. For example, the impact of the nearby Arvida Pompano Beach DRI was not considered in the Tinter Study even though that development will certainly affect the traffic on Atlantic Boulevard.
The Tinter Study also failed to address the need for a traffic signal at the new access onto Atlantic Boulevard and/or at the future Florida's Turnpike interchange. A proper study of future impacts to Atlantic Boulevard would have addressed the need for and/or possibility of two additional traffic signals at these locations. Consideration of the need for these signals could alter the analysis of the capacity and the level of service of Atlantic Boulevard. Under the FDOT Level of Service Manual, if two new signals were added, the applicable classification of the road based on signalization would drop from Group "C" to Group "D," resulting in a lowering of the operating level of service to "F."
Because it was designed as a "build-out" study to support a vacation of the right-of-way, the Tinter Study did not explore alternative traffic patterns such as leaving open access points on Oaks Drive leading to roads other than Atlantic Boulevard. Other access points could possibly mitigate impacts on the level of service of Atlantic Boulevard.
The Tinter Study includes the following conclusion: [D]evelopment of the site based on the
proposed Traffic Circulation Plan would result in a decrease in operating Level of Service on Atlantic Boulevard from Powerline
Road to the proposed site access location from 'D', the maximum acceptable standard, to 'E'.
The Study also concludes that, if the change was not made and the existing Traffic Circulation Plan remained in effect, at least three local collector roadways would exceed the City's minimum standards as a result of the development of Oaks Tract.
As noted above, DCA issued its ORC in the form of a letter to the Mayor of the City dated July 5, 1991. That letter set forth DCA's position that the proposed Amendment was not supported by adequate and relevant data and analysis. Specifically, DCA expressed concern that creating a single access to
the site from Atlantic Boulevard could result in a lowering of the level of service for this segment of Atlantic Boulevard from "D" to "F".
As indicated above, after receiving the ORC, the City adopted the Plan Amendment with no significant modifications. When the City transmitted the adopted Plan Amendment to DCA, it included a "Response to DCA Objections, Recommendations and Comments Re: Traffic Circulation Element Amendment 91-03 Oaks Drive" (the "Response") attached to which was a letter dated August 22, 1991 from Walter H. Keller, Jr., a traffic planning engineer. The City's Response disputed DCA's conclusion that the level of service for the segment of Atlantic Boulevard would decrease from "D" to "F". The City contended that the Tinter Study's conclusion reflecting a decrease in level of service from "D" to "E" was based on a worst-case, peak season condition scenario. According to the City, average annual operating conditions for all the studied roadways would not be affected by the Amendment. The City cited to the letter from Mr. Keller to support this conclusion. That letter stated that
...[t]he proposed amendment will not impact adopted LOS standards. Furthermore, the proposed revised network will provide relief for the over capacity link on Powerline Road between Atlantic Boulevard and Palm Aire Drive North.
Pompano Beach traffic circulation standards require LOS "D" to be maintained on an average daily basis. The amendment will not cause average conditions to exceed LOS Standards.
This condition is based on the traffic circulation study performed for the proposal and the seasonal traffic analysis included in the City's traffic circulation element. In addition, the proposed network resulting from the Amendment will decrease traffic on Powerline Road between Atlantic Boulevard and Palm Aire Drive North by approximately 1800 trips per day.
The City's Response to DCA's ORC also noted that FDOT had issued the permits for the access bridge to Atlantic Boulevard and that the bridge was under construction. The Response pointed out that
The subject property is platted and vested for the trips expected to be generated by the proposed development. Based on this information, the proposed amendment satisfies transportation concurrency requirements for the City of Pompano Beach Comprehensive Plan.
The documentation submitted by the City with the adopted Amendment did not alleviate DCA's concerns regarding the Amendment. In particular, DCA noted that Figure 6B of the Tinter Study and its accompanying chart show projected daily peak-season traffic volumes on Atlantic Boulevard at build-out. The portion of Atlantic Boulevard between Powerline Road and the new access to Oaks Tract is projected to serve 50,256 trips at a level of service of "E" and the portion of Atlantic Boulevard west of the new access to Lyons Road is projected to serve 45,943 trips at a level of service of "D." Thus, despite the
conclusory language in the Response and in Mr. Keller's letter, the Tinter Study clearly shows that there will be some increased traffic on Atlantic Boulevard as a result of the Amendment. DCA noted with concern the Study's conclusion that:
The only impact expected from the development of the site given the proposed Traffic Circulation Plan would be a decrease in the operating Level of Service from "C" to "E" for the link of Atlantic Boulevard from the site to Powerline Road. As mentioned, considering the existing plan, the link would decrease from Level of Service "C" to "D".
Explaining The Tinter Study
The Tinter Study includes the conclusion that:
The development of the property based on the proposed Traffic Circulation Plan would create a negligible impact upon the roadway network in comparison with development of the property based on the Existing Traffic Circulation Plan.
Unfortunately, The Tinter Study did not attempt to analyze the expected impact of the Plan Amendment by utilizing a methodology that could be easily compared to the calculation of the level of service standard set forth in the Broward County Plan. Instead, the Tinter Study was based upon existing operating level of service data to which was added the projected increase in average daily traffic and peak-season volume expected as a result of the buildout. Under these circumstances, comparing the conclusions of the Tinter Study to the policies and goals of the Comp Plan is very confusing and can be the functional equivalent of comparing apples to oranges.
At the hearing, Andrew Sebo, the traffic engineer who prepared the Tinter Study, testified and attempted to explain certain of the conclusions set forth in the Study. He contended that the level of service for average daily traffic conditions on Atlantic Boulevard would not increase as a result of the Amendment. To support this conclusion, he presented revised calculations applying the Group C figures of the FDOT Manual to the data from the Tinter Study. These calculations are of questionable value since they, like the Tinter Study, apparently fail to take into account the possible addition of traffic lights on the relevant portion of Atlantic Boulevard.
Mr. Sebo also testified that there would be no increase in level of service on a peak-hour basis for Atlantic Boulevard as a result of the Plan Amendment. He claimed that the calculations in the Tinter Study used a peak- season analysis which resulted in a much higher traffic volume than average annual daily traffic volume or peak hour measurements. He pointed out that the Study assumed that there would be a 15% growth in traffic over the three years of the study. This assumption of a 5% annual growth in traffic consisted of a 3% projection attributable to traffic growth with the remaining 2% coming from "committed development" traffic. Since the committed development traffic was factored into the Comp Plan's level of service determinations, Mr. Sebo contends that this 2% was double-counted in determining whether the Plan Amendment will result in a degradation of the level of service on Atlantic Boulevard. He also contends that the assumption of an annual 3% growth in traffic was probably
overstated since the actual growth over the proceeding three years was much less than that. Mr. Keller confirmed some of these contentions. However, neither of these witnesses specifically addressed the increase in traffic on Atlantic Boulevard throughout the applicable planning periods set forth in the City's Comp Plan. Furthermore, it does not appear that either witness considered the possible need for a new traffic signal.
Even with the clarifications provided by Mr. Sebo, there are some unexplained inconsistencies and/or ambiguities regarding the Tinter Study. For example, the Study assumes 5.92 trips per day per unit for the Oaks Tract development. Utilizing a formula set forth in the Institute of Transportation Engineer's Manual (the "ITE Manual"), this assumption would result in 7,131 trips per day. (7,131 = 1,196 x 5.92 + 51). Mr. Keller contends that 5.92 trips was probably excessive for a development like Oaks Tract. However, the ITE Manual sets forth the following trip generation projections: high-rise-4 trips per day per unit; garden apartments-6.8 trips per day per unit; townhouses-7.8 trips per day per unit; single family-10 trips per day per unit. As noted above, Oaks Tract, changed in 1986 or 1987 from all high-rise units to a mixed type of development comprised of single family detached homes, townhouses, garden apartments and high-rises. The Study's premise that the
"[Apartment] category was selected as it has the highest trip generation rate of the various multi-family residential development categories listed in the [ITE] report" is apparently incorrect because townhouses are higher trip generators than apartments in the multi-family classification. Moreover, single family units, which are the highest trip generators of all, were not included in the analysis even though they will be part of the development. Thus, the Study arguably underestimated the number of trips. It should be noted that the county in its Comp Plan only considered 5,300 trips per day in calculating the committed traffic for Atlantic Boulevard from Oaks Tract. While the discrepancy between this figure and the calculations in the Study may be the result of the elimination of other access points, no clear explanation has been provided.
The Study notes that peak hour traffic volumes were collected for the Study. However, no peak hour analysis was done for future traffic conditions. No explanation was provided in the Study as to why peak hour analysis was not done in accordance with Traffic Circulation Policy 02.05.2. As indicated above, at the hearing Mr. Sebo attempted to extrapolate a peak hour analysis from the information in the Study. This testimony was not persuasive because it did not take into account the possible addition of a new signal at the access point and/or at the turnpike interchange. Moreover, this testimony was not correlated with the evidence presented regarding the existing operating level of service for Atlantic Boulevard as calculated in accordance with the "trips model."
At the hearing, DCA presented evidence that, subsequent to the adoption of the Broward Comp Plan, the operating level of service of Atlantic Boulevard as measured by the "trips model" has degraded from "D" to "E." This determination includes existing plus committed traffic. As noted above, under the "trips model", only 5300 trips per day from the Oaks Tract Subdivision were included as part of the committed traffic volumes. An addition of 1831 trips would further burden Atlantic Boulevard, which according to the evidence presented by DCA, is currently overcapacity and operating below its established level of service standard of "D." Neither Mr. Sebo's testimony nor any other evidence presented by the City specifically addresses this issue.
In sum, because the Tinter Study did not adequately take into account impacts of adjacent development over the remainder of the planning period and did not analyze the impact of the Amendment in the context of the City and
County's Comp Plans, it is not adequate to support the Amendment. The City's Response to the OCR did not adequately clarify the many questions raised by the Tinter Study. While the evidence at the hearing provided some elucidation, it still did not resolve all the issues.
Consistency Issues
DCA argues that the Amendment is internally inconsistent with several policies set forth in the City's Comp Plan. 1/ For example, DCA contends that the Plan Amendment is internally inconsistent with Traffic Circulation Policy
02.05.2 of the Comp Plan because the Tinter Study indicates that the change in the Traffic Circulation Network would lower the level of service of a portion of Atlantic Boulevard, an arterial road, to below the level of service standard of "D" adopted by that policy. As discussed above, the Tinter Study's reference to a deterioration in level of service was not predicated on the same methodology used in the Broward Comp Plan. Thus, there are some unresolved questions as to the actual impact of the Amendment on the level of service for Atlantic Boulevard. Accordingly, it is more accurate to conclude that the Amendment is not based on adequate data and analysis. In order to support the Amendment, the data and analysis should have demonstrated that the level of service as determined in accordance with the Broward Comp Plan would be maintained or improved. Alternatively, the City should have articulated a justification for lowering the level of service.
Traffic Circulation Objective 02.03 of the City's Plan states:
When reviewing development proposals, provide for minimal negative impacts associated with access point locations, and provide for safe and efficient on-site traffic circulation and parking, including provisions for handicapped users.
The evidence in this case indicates the new access point may have a negative impact by lowering the level of service of a state road. While retaining the existing traffic circulation network could result in a deterioration of local roads or perhaps other state roads as Oaks Tract is developed, the choice between these two alternatives has not been fully explored and/or justified. Absent evidence that efforts have been undertaken to minimize negative impacts associated with the new access point, the Amendment, viewed in isolation, is inconsistent with Traffic Circulation Objective 02.03.
Traffic Circulation Policy 02.05.01 of the Comp Plan states:
Adopt the LOS standards as outlined and, for those facilities less than LOS "D", coordinate the designation of special transportation areas with the appropriate state, regional and county planning agencies.
Under this policy, a special transportation area designation could have been adopted by the City if the level of service of Atlantic Boulevard will fall below "D". No such special transportation area is identified in the Amendment.
The City's Comp Plan contains several other policies and objectives that may be contravened if the Amendment leads to the degradation of the level of service of Atlantic Boulevard.
Traffic Circulation Policy 02.05.06 states:
After January 1990, or when required by state statute, the City will only issue development permits for projects impacting links identified from Policy 02.05.05, under the following circumstances:
. An approved traffic impact study shows that projected traffic conditions are not degraded below LOS "D" at project buildout.
. There is an approved Action Plan accompanying the traffic impacts of the proposed development
where an Action Plan refers to any combination of accepted transit, ride-sharing, transportation systems management methods, etc. of traffic impact mitigation.
. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Commission determines they will be under contract during the same fiscal year.
. The necessary improvements to provide LOS "D" are included in an enforceable development agreement.
Traffic Circulation Objective 02.07 states:
Protect and obtain future rights of way necessary for transportation purposes.
Traffic Circulation Objective 02.08 states:
The City shall coordinate with the plans and programs of the Broward County Metropolitan Planning Organization (MPO), Broward County and the Florida Department of Transportation's Five Year Transportation Plan.
Traffic Circulation Policy 02.09.04 states;
Approve additional city development in concert with maintenance of the adopted level of service standard.
The Amendment, viewed in isolation, is potentially inconsistent with Policy 02.05.06, Objective 02.07, Objective 02.08 and with Policy 02.09.04 because the development activity associated with the Amendment (vacating an existing right-of-way and creating an exclusive access to Atlantic Boulevard) may degrade the level of service for Atlantic Boulevard.
The South Florida Regional Policy Plan is the regional policy plan which applies to the City.
Public Facilities Policy 18.1.3 of the regional policy plan states:
Encourage the use of mechanisms that provide incentives for development to use existing public facilities and services.
Transportation Policy 20.1.7 of the regional policy plan states:
Encourage the uses of transportation through management strategies to reduce the congestion and to maximize the use of existing transportation facilities.
Transportation Policy 20.1.13 of the regional policy plan states:
Local governments should adopt or amend their ordinances to protect or preserve transportation corridors and rights of way identified in local government comprehensive plans or in the state or regional plan.
The Amendment, viewed in isolation, arguably conflicts with Public Facilities Policy 18.1.3, Transportation Policy 20.1.7, and Transportation Policy 20.1.13 because, rather than encouraging the use of, protecting and preserving an existing right-of-way, the City is eliminating it.
The City has not demonstrated that any policies or goals of the regional policy plan will be achieved by the Amendment and/or that the Amendment would in any way further the South Florida Regional Policy Plan construed as a whole.
State Comprehensive Plan Transportation Policy 20(b)3. states:
Promote a comprehensive transportation planning process which coordinates state, regional, and local transportation areas.
Contrary to Transportation Policy 20(b)3, there was no coordination of the City's action with the county or state transportation plans. Furthermore, the evidence does not reflect that any State Comprehensive Plan goals or policies will be furthered by this Plan Amendment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.57(1) and 163.3184(10), Florida Statutes.
Amending the Plan
Pursuant to Florida's Growth Management Statute, Chapter 163, Part II, Florida Statutes, also known as the Local Government Comprehensive Planning and Land Development Regulation Act (the "Act",) counties and incorporated
municipalities in the State of Florida are required to prepare and adopt comprehensive plans of the type and in the manner prescribed by the Act.
Once adopted, these comprehensive plans may be amended in the manner prescribed by Section 163.3187, Florida Statutes.
Section 163.3187, Florida Statutes, mandates that "[c]omprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to s. 163.3177(2)."
Other than this general admonition, the Act contains virtually no guidance regarding the submission requirements for plan amendments.
Section 163.3177(2), Florida Statutes, provides as follows:
Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be financially feasible.
Determining Compliance
Pursuant to Section 163.3187(2), the procedure for amending an adopted comprehensive plan is set forth in Section 163.3184, Florida Statutes. Plan amendments are subject to review by DCA under the Act. The purpose of such review is to determine whether the plans and plan amendments are "in compliance." Section 163.3184(8), Florida Statutes.
"In compliance," as used in the Act, "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), Florida Statutes. A plan amendment is "in compliance" if it is consistent with this authority and does not cause the plan to be in noncompliance with this authority.
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 163.3191, 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 DCA 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, Florida Statutes.
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, as well as Dade and Monroe Counties.
The Formal Hearing
If DCA determines, following its review of a local government's adopted plan amendment, that the plan amendment is not "in compliance," it is required to issue, and to then transmit to the Division of Administrative Hearings, a notice of its intent to find the plan not "in compliance." The notice must be issued "by publication...and by mailing a copy to the local government and to persons who request [a copy]" within 45 days of the Department's receipt of the plan amendment. Section 163.3184(8) and (9), Florida Statutes.
DCA's determination of noncompliance may "only be based upon" the Department's ORC report or "[a]ny changes made by the local government to the...plan amendment as adopted." Section 163.3184(8), Florida Statutes.
The issues in this case require consideration of the subject Plan Amendment and its effect on the City's Comp Plan in the following respects: consistency with various criteria set forth in the Act and Chapter 9J-5 involving specified data and analysis and objectives and policies, internal consistency, and consistency with the regional plan and state comprehensive plan.
"In the proceeding, the local government's determination that the...plan amendment is in compliance is presumed correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the...plan amendment is not in compliance. The local government's determination that elements of its plan [as amended] are related to and consistent with each other shall be sustained if the determination is fairly debatable." 2/ Section 163.3184(10)(a), Florida Statutes.
The undersigned hearing officer must weigh the evidence adduced at hearing against these standards and submit a recommended order containing findings of fact and conclusions of law to the Administration Commission for final agency action. 3/ Section 163.3184(1)(b), Florida Statutes.
If the Administration Commission finds that the plan amendment is not "in compliance," it must "specify remedial actions which would bring the comprehensive...plan amendment into compliance." Furthermore, in the exercise of its sound discretion, the Administration Commission may impose the following penalties upon the offending local government:
(a)...The commission may direct state agencies not to provide funds to increase the capacity of roads, bridges, or water or sewer systems within the boundaries of those local governmental entities which have comprehensive plans or plan elements that are determined not to be in compliance. The commission order may also specify that the local government shall
not be eligible for grants administered under the following programs:
The Florida Small Cities Community Development Block Grant Program, as authorized by ss. 290.041-290.049.
The Florida Recreation Development Assistance Program, as authorized by chapter 375.
Revenue sharing pursuant to ss. 206.60, 210.20, and 218.61 and part I of chapter 212, to the extent not pledged to pay back funds.
(b) If the local government is one which is required to include a coastal management element in its comprehensive plan pursuant to
s. 163.3177(6)(g), the commission order may also specify that the local government is not eligible for funding pursuant to s. 161.091...
Because the Act authorizes the imposition of these "substantial" 4/ penalties against a local government whose plan amendment is found to be not "in compliance," the Act's provisions must be strictly and narrowly construed. See D'Alemberte v. Anderson, 349 So.2d 164, 168 (Fla. 1977); Lollie v. General American Tank Storage Terminals, 34 So.2d 306 (Fla. 1948). Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 3rd DCA 1974).
Regardless of the evidentiary standard or the levels to which it is applied, it is necessary to determine the meanings of "consistency" as applied to consistency with the criteria of the Act and Chapter 9J-5, internal consistency, and consistency with the regional plan and state comprehensive plan. The Act does not specifically define what is meant by internal consistency or consistency with the criteria of the Act and Chapter 9J-5.
Internal Consistency
As noted above, the Act describes internal consistency as coordination among the several elements. Section 163.3177(2). Internal consistency also means that the elements are "related" to each other. Section 163.3177(9)(b).
Rule 9J-5.005(5), Florida Administrative Code, also requires internal consistency within a plan. That rule states in pertinent part:
The required elements and any optional elements shall be consistent with each other...
Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan.
The burden of proving that the local government's amended plan is internally inconsistent 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, it must be shown that it is beyond reasonable debate or legitimate controversy that, as a result of the plan amendment, the local government's plan has provisions that are inconsistent and cannot be reconciled. 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).
The evidence in this case was conflicting and insufficient to conclude that the Amendment will necessarily result in a lowering of the level of service on Atlantic Boulevard. Thus, it can not be concluded that the Plan Amendment is internally inconsistent with the Comp Plan. If the level of service will degrade, the Amendment would contravene the following objectives and policies of the Traffic Circulation Element of the City's Comp Plan: Policy 02.05.02; Objective 02.03; Policy 02.05.01; Policy 02.05.06; Objective 02.07; Objective 02.08; and Policy 02.09.04.
Consistency with the State and Regional Plans
As noted above, this proceeding is also intended to resolve whether the Amendment is consistent with the regional plan and the state plan.
The Act defines what is meant by consistency with the state and regional plans. Section 163.3177(10)(a) defines "consistency" solely for the purpose of determining whether the plan is consistent with the state and regional plans. For these consistency determinations, a plan or amendment is consistent if it is "not in conflict with" the relevant regional or state plan and "take[s] action in the direction of realizing goals or policies" of the relevant plans. In making these determinations, 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. "Id.
The evidence established that the Amendment conflicts with certain policies announced in the State and regional plans. While these conflicts may be relatively minor, no explanations or reasons were advanced as to how the Amendment in any way furthersthe goals and policies of those plans.
Consistency with the Act and the Rule
The Act and Chapter 9J-5 identify numerous criteria against which consistency determinations are to be made. Some of these criteria are specific, see, e.g., Section 163.3177(6)(d), and some criteria are more general, such as economic feasibility (Section 163.3177(2) and (9)(b)), and concurrency (Section 163.3177(10)(h)). Among the general criteria of the Act and Chapter 9J-5 is that the plan be supported by data and analysis. The Act states this general criterion at Section 163.3177(8) and (1).
Section 163.3177(10)(e) provides:
It is the Legislature's intent that support data or summaries thereof shall not be subject to the compliance review process, but the Legislature intends that goals and policies be clearly based on appropriate data. [DCA] may utilize support data or summaries thereof to aid in its determination of compliance and consistency. The Legislature intends that [DCA] may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted. However, [DCA] shall
not evaluate whether one accepted methodology is better than another. Chapter 9J-5, F.A.C., shall not be construed to require original data collection by local governments; however, local governments are not to be discouraged from utilizing original data so long as methodologies are professionally accepted.
Rule 9J-5.005(2)(a), Florida Administrative Code, requires that all goals, objectives, policies, standards, findings and conclusions within a comprehensive plan and its support documents must be based upon relevant and appropriate data.
The Plan Amendment in this case was not supported by its accompanying data and analysis. 5/ The Tinter Study states that the operating level of service on Atlantic Boulevard will degrade to "E," rather than be maintained at the adopted level of service of "D." Neither the Response provided by the City to the ORC nor the evidence presented at the hearing in this case adequately explained and/or modified the conclusions reached in the Study.
Rule 9J-5.005(2)(a), F.A.C., requires that the data be collected and applied in a professionally acceptable manner. One of the problems in this case is that the Tinter Study was designed to support the request for vacation of a right-of-way rather than an amendment to the Comp Plan. The basis of the Study are defective for comprehensive planning purposes for several reasons. First, the Study fails to take into account anticipated development through the remainder of the planning period (year 2010). The study is limited to the three year buildout of the Oaks Tract Subdivision and fails to take into account any other future development activity. In addition, the study does not address the need for a traffic light which may be necessitated by this new access.
The City's Comp Plan adopts level of service standards for arterial roads based on daily and peak hour analysis. The Tinter Study did not specifically analyze peak hour traffic volumes in accordance with the Plan or FDOT requirements, even though the study noted peak hour volume data was collected.
The vacation of a right-of-way is a development order for purposes of Chapter 163, Part II, Florida Statutes.
Rule 9J-5.0055, F.A.C. requires that the concurrency management system ensure that the adopted level of service standards be maintained prior to the issuance of a development order or permit.
Vested Rights and Estoppel
Rule 9J-5.0055(1)(d), F.A.C., requires local government to adopt level of service standards for roads which are compatible with FDOT level of service standards.
The City's adopted level of service for Atlantic Boulevard was established by Traffic Circulation Element Policy 02.05.02 as "D." That level of service is compatible with the level of service standards established by FDOT for arterial roads.
The Plan Amendment effectively abandons the Oaks Drive right-of-way by deleting it from the future traffic conditions map series. Since all of the
traffic from the Oaks Tract subdivision would be forced to use Atlantic Boulevard, the traffic on Atlantic Boulevard will certainly increase. As noted above, it is not clear whether this increase in traffic will cause the level-of- service on Alantic Boulevard to degrade during the planning periods set forth in the Comp Plan. In any event, the City did not attempt to justify a deviation from FDOT standards. Instead, the City argues that the trips generated by the subdivision are "vested" because the Oaks Tract subdivision was platted by Broward County in 1980. This argument misses the point. While the development of the property may be vested, the abandonment of the right-of-way and the creation of an exclusive access on Atlantic Boulevard are not. The developer is not free to unilaterally alter the traffic circulation network from that shown on the approved plat.
The City also argues that DCA is estopped from finding the Amendment not in compliance because FDOT approved the road alteration permit and the right-of-way abandonment requests. The City points out that several hundred thousand dollars have been spent on the construction of the access bridge.
While these factors may be pertinent in considering an appropriate remedy if the Amendment is not in compliance, they are irrelevant to the initial determination of whether the Amendment is supported by adequate data and analysis and/or is in compliance with the various statutory and rule requirements. It is clear that the impact on level of service was never considered by FDOT when it reviewed the road alteration permit and the right-of-way abandonment request. DCA is entitiled, indeed is obligated, to review the Amendment on a de novo basis regardless of any permits which may have been issued by the local government or another state agency. The City has not demonstrated sufficient grounds to estop DCA from objecting to this Amendment. See, Fotomat Corp. of Florida vs. R.B. Films, Inc., 366 So.2d 1213 (Fla. 1st DCA 1979); Greenhut Construction Co. vs.
Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971) (estoppel against a governmental agency can only be evoked under very exceptional circumstances.)
Conclusion
In sum, DCA can not approve the Plan Amendment abandoning the right- of-way unless the Amendment is "in compliance." The evidence presented in this case established that the City did not provide sufficient information when it submitted the adopted Amendment to DCA to enable DCA to conclude that the Amendment was "in compliance". Indeed, the Tinter Study implied that a degradation in the level of service for Atlantic Boulevard would take place. Such a degradation would result in the policies and goals no longer being supported by the data and analysis. At the hearing in this case, the City presented evidence trying to explain and clarify the Tinter Study. That evidence was inconclusive. While Mr. Sebo and Mr. Keller testified that the abandonment of the right-of-way would not lead to a degradation of the level of service for Atlantic Boulevard, these conclusions were apparently based on the assumption that no new traffic signals would be added. However, the evidence indicates that a signal will probably be necessary at the new access point for the Oaks Tract Subdivision to Atlantic Boulevard. In addition, it is not clear whether those witnesses have considered the likelihood of a new signal at the turnpike interchange in the near future. Any new signals could change Atlantic Boulevard's categorization for signal purposes and could impact on its level of service.
The City complains that no clear guidelines have been articulated as to the type of supporting data that must be included with a plan amendment. Certainly, the lack of guidelines is a source of confusion and frustration. In the absence of definitive guidelines, the appropriate data and analysis will
necessarily depend upon the nature of the amendment and its relationship to the goals, policies and objectives in the Comp Plan. In this case, by creating an exclusive access to Atlantic Boulevard for Oaks Tract, the Amendment would clearly increase the traffic on that arterial road. 6/ In order for such an Amendment to be "in compliance", the data and analysis should support the conclusion that the increased traffic would not cause a degradation in the level of service for the road during the applicable planning period or should demonstrate why the Amendment was otherwise justified under the City's Comp Plan, the state and regional plans and the applicable statutes and rules.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs submit this
Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for the reasons set forth above.
DONE and ENTERED this 2nd day of November, 1992, at Tallahassee, Florida.
J. STEPHEN MENTON 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 2nd day of November, 1992.
ENDNOTES
1/ There is a debate whether plan amendments should be evaluated against each of the several elements of a comp plan or whether a compliance determination for a plan amendment should be based on a consideration of the comprehensive plan, as amended, as a whole. See, Department of Community Affairs v. Metropolitan Dade County, DOAH Case No. 90-3599GM (RO issued December 26, 1991) (adopting the later approach.) Because of the result reached herein, it is not necessary to address or resolve that debate. Under either approach, a review of the pertinent plan provisions is a useful step in the analysis of an amendment such as the one at issue in this case.
2/ The Act does not define what is meant by "fairly debatable." In zoning cases, "'[t]he fairly debatable' test asks whether reasonable minds could differ as to the outcome of a hearing." If so, the local government's decision should be sustained. Norwood-Norland Homeowners Association, Inc. v. Dade County, 511 So.2d 1009, 1012 (Fla. 3rd DCA 1987)
3/ The sole application of the fairly debatable standard in Section 163.3184(10) cases is to the determination of internal consistency. The fairly
debatable standard should not be applied to the other issues in this case. Cf. Section 163.3184(9), Florida Statutes.
4/ See Florida League of Cities v. Administration Commission, 586 So.2d 397 (Fla. 1st DCA 1991)(policy followed by Administration Commission in imposing sanctions pursuant to Section 163.3184(11), Florida Statutes, was a "substantial disincentive to noncompliance...analogous to a situation involving a criminal defendant").
5/ It is not clear whether a plan amendment must be supported by independent data and analysis or whether a plan amendment that is consistent with data and analysis supporting the Comprehensive Plan as originally adopted can be found in compliance without any additional data and analysis. This issue need not be resolved in this case. The City has not argued that the Amendment is consistent with the original data and analysis prepared for the Comp Plan.
6/ If there was no indication that the level of service for Atlantic Boulevard would decrease as a result, then arguably there would be no need to provide any new data and analysis.
APPENDIX
Case Number 91-6765GM
Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or
Reason for Rejection.
Adopted in substance in Findings of Fact 1.
Adopted in substance in Findings of Fact 2.
Adopted in substance in Findings of Fact 3.
Subordinate to Findings of Fact 4.
Adopted in substance in Findings of Fact 5.
Adopted in substance in Findings of Fact 6.
Adopted in substance in Findings of Fact 7.
Adopted in substance in Findings of Fact 10.
Adopted in substance in Findings of Fact 12.
Adopted in substance in Findings of Fact 14.
Adopted in substance in Findings of Fact 15.
Adopted in substance in Findings of Fact 22.
Adopted in substance in Findings of Fact 13.
Adopted in substance in Findings of Fact 23-25.
Adopted in substance in Findings of Fact 23-25.
Adopted in substance in Findings of Fact 26.
Adopted in substance in Findings of Fact 9.
Adopted in substance in Findings of Fact
7 and 8.
Adopted in substance in Findings of Fact 27.
Adopted in substance in Findings of Fact 28.
Adopted in substance in Findings of Fact 29.
Adopted in substance in Findings of Fact 16.
Adopted in substance in Findings of Fact 17.
Adopted in substance in Findings of Fact 30.
Adopted in substance in Findings of Fact 18.
Adopted in substance in Findings of Fact 19.
Adopted in substance in Findings of Fact 20.
Adopted in substance in Findings of Fact 21.
Adopted in substance in Findings of Fact 31.
Adopted in substance in Findings of Fact 32.
Adopted in substance in Findings of Fact 33.
Adopted in substance in Findings of Fact
35. The evidence indicates that 3 right- of-way vacation requests were submitted.
Adopted in substance in Findings of Fact 36.
Adopted in substance in Findings of Fact 38.
Adopted in substance in Findings of Fact
39. The footnote is addressed in Findings of Fact 48 and 49.
Adopted in substance in Findings of Fact 41.
To the extent this proposal attempts to characterize the purpose of the Amendment, it is rejected as unncecessary and argumentative. As set forth in Findings of Fact 32 and 35, the abandonment of Oaks Drive would result in a single entrance to Oaks Tract via the newly constructed
bridge to Atlantic Boulevard.
Adopted in substance in Findings of Fact
50. As noted in Findings of Fact 10, the subdivision was approved for 1,180 units. It is not clear why the Tinter Study utilized 1,196 units in calculating the expected number of daily trips from the subdivision.
Subordinate to Findings of Fact 50.
Adopted in pertinent part in Findings of Fact 46.
Adopted in substance in Findings of Fact 51.
Adopted in substance in Findings of Fact 52.
Subordinate to Findings of Fact 54.
Subordinate to Findings of Fact 54.
Subordinate to Findings of Fact 54.
Adopted in substance in Findings of Fact 55.
Subordinate to Findings of Fact 54 and 56.
Adopted in substance in Findings of Fact 57.
Subordinate to Findings of Fact 58.
Adopted in substance in Findings of Fact 60.
Adopted in substance in Findings of Fact 61.
Subordinate to Findings of Fact 64.
Adopted in substance in Findings of Fact 64.
Subordinate to Findings of Fact 64.
Adopted in substance in Findings of Fact 63.
Subordinate to Findings of Fact 64.
Adopted in substance in Findings of Fact 65.
Adopted in substance in Findings of Fact 66.
Subordinate to Findings of Fact 69.
Adopted in substance in Findings of Fact 67.
Subordinate to Findings of Fact 69.
Adopted in substance in Findings of Fact 68.
Subordinate to Findings of Fact 69.
Subordinate to Findings of Fact 70.
Adopted in substance in Findings of Fact 71.
Subordinate to Findings of Fact 72.
The Respondent's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or
Reason for Rejection.
Background
Adopted in substance in the Preliminary Statement and in Findings of Fact 37.
Adopted in substance in Findings of Fact 7.
Adopted in substance in Findings of Fact 8, 32 and 34.
Adopted in substance in Findings of Fact 8 and 17.
Adopted in substance in Findings of Fact 23-25.
Adopted in substance in Findings of Fact 7.
Adopted in substance in Findings of Fact
12 and 31.
Adopted in substance in Findings of Fact 24.
Subordinate to Findings of Fact 23-25.
Rejected as unnecessary and as a summary of testimony rather than a Finding of Fact.
Adopted in pertinent part in Findings of Fact 10 and 14.
Subordinate to Findings of Fact 23.
Adopted in substance in Findings of Fact 10.
Adopted in pertinent part in Findings of Fact 24.
Adopted in pertinent part in Findings of Fact 13 and 23-25.
Adopted in substance in Findings of Fact
35 and 36.
Rejected as constituting argument and subordinate to Findings of Fact 36.
Adopted in pertinent part in Findings of Fact 33 and 34.
Rejected as unnecessary. The conclusions of the South Florida Regional Planning Council are not binding on DCA.
Data and Expert Analysis
Subordinate to Findings of Fact 48 and 49.
Subordinate to Findings of Fact 48 and 49. In addition, Findings of Fact 38-41 are also pertinent to these issues.
2.[sic] Adopted in pertinent part in Findings of
Fact 47 and 49.
Rejected as unnecessary.
Rejected as vague and ambiguous. This subject matter is addressed in Findings of Fact 48-53.
Rejected as unnecessary.
Subordinate to Findings of Fact 48 and 49.
Rejected as irrelevant. This subject matter is addressed in Conclusions of Law 37.
Rejected as unnecessary.
Rejected as unnecessary. This subject matter is addressed in Findings of Fact 46, 49 and 53.
Rejected as unnecessary and as a summary of testimony rather than a finding of fact. Some of the issues in this proposal are addressed in Findings of Fact 48-53.
Rejected as unnecessary and as constituting a summary of testimony rather than a finding of fact. Some of the issues in this proposal are addressed in Findings of Fact 52.
Rejected as unnecessary and as a summary of testimony rather than a finding of fact. Some of the issues in this proposal are addressed in Findings of Fact 53.
Rejected as unnecessary and as a summary of testimony rather than a finding of fact. This subject matter is addressed in Conclusions of Law 37.
14.-16. Rejected as unnecessary and as a summary
of testimony rather than a finding of fact. Some of the issues in these proposals are addressed in Findings of Fact 53-71.
Alternate Findings of Fact
1.- 7. These proposals constitute argument and conclusions of law rather than findings of fact. These proposals are addressed and/or are subordinate to the Conclusions of Law set forth in this Recommended Order.
COPIES FURNISHED:
Karen Brodeen
Assistant General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
Gordon Linn
Assistant City Attorney
P. O. Drawer 1300
Pompano Beach, Florida 33061
Linda L. Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jun. 09, 1993 | Final Order filed. |
| Nov. 23, 1992 | Order Correcting Recommended Order sent out. |
| Nov. 06, 1992 | Letter to W.R. Kynoch from J.S. Menton (RE: enclosed recommended order and transcript of the hearing and exhibits offered at the hearing)filed. |
| Nov. 02, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 3/11/92 |
| Apr. 17, 1992 | (DCA) Notice of Errate filed. |
| Apr. 16, 1992 | Department of Community Affairs' Proposed Recommended Order filed. |
| Apr. 15, 1992 | Respondent's Proposed Recommended Order filed. |
| Apr. 01, 1992 | Transcript (Volume I & II) filed. |
| Mar. 18, 1992 | Documents filed. (From Gordon B. Linn) |
| Mar. 11, 1992 | CASE STATUS: Hearing Held. |
| Mar. 09, 1992 | (Petitioner) Adendum to Prehearing Stipulation filed. |
| Mar. 09, 1992 | Respondent's Disclosure of Exhibits w/attached Exhibits filed. |
| Mar. 09, 1992 | (Respondent) Unilateral Prehearing Stipulation filed. |
| Mar. 09, 1992 | Respondent's Disclosure of Exhibits w/attached Exhibits filed. |
| Mar. 06, 1992 | Joint Prehearing Stipulation filed. |
| Mar. 06, 1992 | Unilateral Prehearing Stipulation filed. (From Gordon Linn)( |
| Mar. 05, 1992 | Department of Community Affairs' Exhibit List filed. |
| Dec. 19, 1991 | Notice of Hearing sent out. (hearing set for March 11-12, 1992; 9:00am; Pompano Beach). |
| Nov. 20, 1991 | Joint Response to Order filed. |
| Oct. 29, 1991 | Notification card sent out. |
| Oct. 29, 1991 | (Prehearing) Order sent out. |
| Oct. 24, 1991 | Petition of the Department of Community Affairs; Notice of Intent; Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 08, 1993 | Agency Final Order | |
| Nov. 02, 1992 | Recommended Order | Comp Plan amendment deleting portion of road from traffic circulation network was not in compliance; not supported by adequate data and analysis. |
