STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCES C. NIPE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1610GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and BROWARD COUNTY, )

)

Respondents, )

and )

) MICHAEL SWERDLOW COMPANIES, INC., ) MICHAEL SWERDLOW, TRUSTEE, and ) VST/VMIF OAKRIDGE PARTNERSHIP, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 26 and 27, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Chris Mancino, Esquire

1215 Southeast Second Avenue, Suite 102 Fort Lauderdale, Florida 33316

For Respondent, Tracy H. Lautenschlager Broward County: Assistant County Attorney

Broward County

115 South Andrews Avenue, Room 423 Fort Lauderdale, Florida 33301

For Respondent, Brigette A. Ffolkes Department of Assistant General Counsel

Community Department of Community Affairs

Affairs: 2740 Centerview Drive Tallahassee, Florida 32399-2100

For Intervenors, William S. Spencer, Esquire Michael Swerdlow Post Office Box 6 Companies, Inc. Hollywood, Florida 33022 and Michael and

Swerdlow, Barbara A. Hall, Esquire

Trustee: 515 East Los Olas Boulevard, Suite 1500

Fort Lauderdale, Florida 33301

For Intervenor, John H. Pelzer, Esquire VST/VMIF Oakridge Post Office Box 1900 Partnership: Fort Lauderdale, Florida 33302

STATEMENT OF THE ISSUES

Whether an amendment to the Broward County Comprehensive Plan, PC-93-12, adopted by Ordinance 93-42, renders the Broward County Comprehensive Plan not "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes (1993)

PRELIMINARY STATEMENT

On or about November 10, 1993, the Board of County Commissioners of Broward County, Florida, adopted Ordinance No. 93-42. Pursuant to this ordinance several amendments to the Broward County Comprehensive Plan, including PC-93-12, were adopted.

Respondent, Department of Community Affairs, reviewed the ordinance and determined that the amendments adopted therein, including PC-93-12, were "in compliance." A Statement of Intent to Find Comprehensive Plan Amendment In Compliance was entered by the Department of Community Affairs and notice thereof was published.

On March 11, 1994, Petitioner, Frances C. Nipe, filed a Petition for Formal Administrative Hearing with the Department of Community Affairs. The Petition was filed with the Division of Administrative Hearings on March 22, 1994. The Petition was designated case number 94-1610GM and was assigned to the undersigned.

On March 31, 1994, Michael Swerdlow Companies, Inc., and Michael Swerdlow, Trustee, filed a Petition for Intervention and a Motion to Strike. On April 5, 1994, a Motion to Intervene was filed by VST/VMIF Oakridge Partnership. On April 21, 1994, an Order Granting Petition for Intervention and Motion to Intervene was entered.

On April 14, 1994, an Order Granting Motion to Strike was entered.

Petitioner filed a Motion for Reconsideration of Order Granting Motion to Strike and Response to Motion to Dismiss. The "Motion to Dismiss" referred to was a request that this case be dismissed contained at the end of an Answer filed by Broward County. The motion for reconsideration was denied by Order entered May 9, 1994. It was also indicated that the case would not be dismissed prior to consideration of the evidence presented at the final hearing.

On April 22, 1994, a Notice of Hearing was entered scheduling the final hearing of this case for July 27, 1994. On April 26, 1994, a Motion for Expedited Final Hearing pursuant to Section 163.3189(3), Florida Statutes, was filed. That motion was granted by Order entered May 12, 1994. A Notice of Hearing was entered May 12, 1994 scheduling the final hearing for May 26, 1994. The parties were also informed by telephone of the expedited hearing date.

At the final hearing Petitioner testified on her own behalf and presented the testimony of Charles M. Oliver and Walter G. Fluegel. Mr. Oliver and Mr. Fluegel were accepted as expert witnesses. Petitioner also offered 11 exhibits. Petitioner's exhibits 1 and 3 through 11 were accepted into evidence.

Petitioner's exhibit 2 was rejected. Petitioner's exhibits 1, 3 and 4 were accepted to the extent ultimately determined to be relevant.

Respondent, Broward County, presented the testimony of Susan Tramer.

Broward County offered 6 exhibits, which were accepted into evidence. Respondent, Department of Community Affairs, presented the testimony of Gregory

G. Stuart. Mr. Stuart was accepted as an expert. "DCA" exhibits 1 and 2 were accepted into evidence. Finally, Intervenors, Michael Swerdlow Companies, Inc., and Michael Swerdlow, Trustee, presented the testimony of Robert L. Davis. "Swerdlow" exhibits 1 and 2 were accepted into evidence.

A transcript of the final hearing was filed on June 23, 1994. The parties were informed at the close of the final hearing that they could file proposed recommended orders on or before July 1, 1994. All of the parties filed a proposed recommended order on or before July 1, 1994.

The proposed recommended orders filed by the parties contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Francis C. Nipe, is an individual who resides and owns real property located in Broward County, Florida.

      
      

   2. Ms. Nipe presented oral and written comments to Broward County concerning the plan amendment which is the subject of this proceeding.

      
      

   3. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is a local government charged with responsibility by Part II of Chapter 163, Florida Statutes, the "Local Government Comprehensive Planning and Land Development Regulation Act" (hereinafter referred to as the "Act"), and the Broward County Charter for developing a comprehensive plan for future development in the unincorporated areas of the County. The County is also responsible for amendments to the comprehensive plan.

      
      

   4. Respondent, Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged by the Act with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto.

      
      

   5. Intervenor, Michael Swerdlow Companies, Inc., is a corporation with its principal place of business located in the County. Intervenor, Michael Swerdlow, Trustee, also has his principal place of business located in the County and is the contract purchaser of the property which is the subject of the amendment at issue. Michael Swerdlow Companies, Inc., submitted oral and written comments to the County concerning the subject amendment during the amendment process. (Michael Swerdlow Companies, Inc., and Michael Swerdlow, Trustee, will hereinafter be jointly referred to as "Swerdlow").

      
      

   6. Intervenor, VST/VMIF Oakridge Partnership (hereinafter referred to as "VST"), owns the real property which is the subject of the amendment at issue in this proceeding. VST submitted written comments during the amendment process.

   7. Michael Swerdlow Companies, Inc., as agent for Michael Swerdlow, Trustee, and VST, was the applicant for the amendment at issue in this proceeding.

      
      

2. General Description of the County.

   
   

   1. The County is generally a rectangular-shaped geographic area located in southeastern Florida.

      
      

   2. The County is bounded on the east by the Atlantic Ocean, on the south by Dade County, on the west by Collier and Hendry Counties and on the north by Palm Beach County.

      
      

3. The County's Comprehensive Plan.

   
   

   1. The County adopted a comprehensive plan in compliance with the Act on March 1, 1989 (hereinafter referred to as the "County Plan").

      
      

   2. Volume 1 of the County Plan consists of the Broward County Land Use Plan (hereinafter referred to as the "Land Use Plan"). The Land Use Plan applies throughout the County. Broward County composite exhibit 1.

      
      

   3. Volume 2 of the County Plan contains the other elements required by the Act. Some of the elements of Volume 2 apply throughout the County and some apply only to unincorporated areas or areas in which the County provides services.

      
      

   4. Volume 3 of the County Plan consists of supporting documents for the Land Use Plan. Broward County composite exhibit 1.

      
      

   5. The County Plan includes a 1989 Future Broward County Land Use Plan Map Series (hereinafter referred to as the "FLUM"), which is a part of the Land Use Plan. Broward County exhibit 6.

      
      

   6. The Land Use Plan establishes several categories of land uses. The future land use categories established are:

      
      

      1. Residential: A number of uses are allowed within areas designated "residential." The following subcategories, based upon dwelling densities, are established:

         1. Estate (1) Residential.

         2. Low (2) Residential.

         3. Low (3) Residential.

         4. Low (5) Residential.

         5. Low-Medium (10) Residential.

         6. Medium (16) Residential.

         7. Medium-High (25) Residential.

         8. High (50) Residential.

            
            

            Other subcategories of residential property include:

            1. Rural Estates.

            2. Rural Rances.

      2. Commercial.

      3. Office Park.

      4. Commercial Recreation.

      5. Industrial.

      6. Employment Center.

      7. Recreation and Open Space.

      8. Conservation.

      9. Agricultural.

      10. Community Facilities.

      11. Transportation.

      12. Utilities.

      13. Regional Activity Centers.

      14. Mining.

          
          

   7. The FLUM depicts the proposed distribution, extent and location of land use designations for the County.

      
      

   8. The County Plan creates the Broward County Planning Council (hereinafter referred to as the "Planning Council"), as an advisory body to the County Commission.

      
      

4. Initial Consideration of the Subject Amendment.

   
   

   1. The County received a request to amend the County Plan by changing the land use designation of approximately 143 acres of real property from Low-Medium (10), Commercial Recreation and Irregular (6) Residential to primarily Low (5) Residential.

      
      

   2. In June of 1993 the area included in the application was reduced from

      143 acres to 109 acres. The 109 acres are classified as Commercial Recreation.

      
      

   3. On July 7, 1993, it was requested that the land use designation of the

      109 acres being sought by the applicant be reduced to Low (3) Residential. The County approved the request to change the land use designation of the 109 acres of Commercial Recreation to Low (3) Residential (hereinafter referred to as the "Amendment"), and transmitted the Amendment to the Department for review.

      
      

5. The Department's Initial Review of the Subject Amendment.

   
   

   1. The Department reviewed the Amendment and prepared its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), dated September 24, 1993. Comments of various entities were considered by the Department during its review.

      
      

   2. The Department raised two objections to the Amendment in the ORC.

      
      

   3. One objection was that the County had not provided peak hour analysis of traffic conditions impacted by the Amendment both before and after the Amendment. The Department's objection concerning traffic conditions was based upon comments from the Florida Department of Transportation (hereinafter referred to as "DOT"). DOT had requested that a P.M. peak-hour traffic analysis be provided for roads serving the property which is the subject of the Amendment.

      
      

   4. The Department also objected to the Amendment because the County had failed to provide adequate data and analysis demonstrating a need for increased residential density to accommodate the projected population.

6. The County's Response to the ORC and Approval of the Amendment.

   
   

   1. On October 28, 1993, the Planning Council recommended approval and adoption of the Amendment, as modified.

      
      

   2. On November 10, 1993, the Board of County Commissioners of the County adopted Ordinance 93-42. Included in Ordinance 93-42 were a number of amendments to the County Plan, including the Amendment, PC-93-12.

      
      

   3. Pursuant to the Amendment, the land use designation of approximately

      109 acres of real property, was amended from Commercial Recreation to Low (3) Residential.

      
      

   4. In response to the ORC, the County informed the Department that a

      P.M. peak-hour traffic analysis was not required for the Amendment because the Traffic Circulation Element of the County Plan is based upon an analysis of average daily trips. The method utilized in the County Plan utilizes average daily traffic in the calculation of levels of service for affected roadways.

      
      

   5. In response to the Department's objection concerning the need for additional residential property, the County reported that the Amendment property is located in the southeast sector of the County and that the southeast sector is generally built out. The Department was also informed that facilities and services in the Southeast sector are in place.

      
      

   6. The County also took the position that the Amendment constitutes "infill" development.

      
      

   7. Finally, the County pointed out to the Department that the number of dwelling units permitted by the Land Use Plan for the southeast sector have been reduced by over 2,124 units through amendments to the County Plan. The County also informed the Department that revised population figures suggest an additional increase in population for the southeast sector of 1, 327.

      Therefore, there will be no increase in total projected residential units in the southeast sector as a result of the Amendment.

      
      

7. Final Department Review.

   
   

   1. The Department discussed the County's response concerning traffic projections with DOT. DOT withdrew its objection and the Department accepted the County's explanation.

      
      

   2. The Department considered and accepted the County's response to the objections contained in the ORC concerning the adequacy of data and analysis to support an increase in residential property. The Department determined that the additional data and analysis were adequate. The suggestion that the Amendment constitutes "in fill" was not part of the reason the Department accepted the County's explanation for why an increase in residential property was being approved.

      
      

   3. On January 4, 1994 the Department entered a Notice of Intent to find the Amendment in compliance.

      
      

8. Ms. Nipe's Challenge to the Amendment.

1. On or about March 11, 1994, Ms. Nipe filed a Petition for Formal Administrative Hearing of Frances Nipe with the Department challenging the Amendment.

   
   

2. In the petition, Ms. Nipe alleged that the Amendment is not "in compliance" for essentially the following reasons:

   
   

   1. The "residential density has not sufficiently been supported by data and analysis that the increase in residential density is necessary to accommodate the projected population." In support of this argument, Ms. Nipe cited Rules 9J-5.006(2)(a) and (c), Florida Administrative Code, and Rules 9J- 11.006(1)(b)4. and (3) [incorrectly cited as 9J-11.00.006(1)(b)4. and (3)], Florida Administrative Code.

      
      

   2. The Amendment is inconsistent with Broward County Land Use Plan - Chapter 5, Section B, Commercial Recreation Use, 2., . . ." and will have a detrimental impact upon tourism development in the County.

      
      

   3. The Amendment will further degrade the level of educational services.

      
      

   4. The Amendment will "place additional trips on existing over capacity roads."

      
      

   5. The rationale of the applicant for the Amendment is inadequate in that the subject property "contains sufficient acreage that a redesigned golf course would meet USGA Standards as well as accommodate some residential development" and "[n]eighbors and Patrons are not Golf Professionals and don't care if the course meets USGA Standards to the Letter."

      
      

   6. The Amendment is "highly insensitive to the natural oak hammock areas on the subject property "

      
      

   7. The Amendment is inconsistent with Objective 02.03.00, Goal 03.00.00, Objective 03.03.00 and Policy 03.03.00 "in that it contradicts the Tourism development policies and undermines the Commercial Recreation Land Use designation."

   
   

3. Ms. Nipe also suggested in her petition that the Amendment is inconsistent with the City of Hollywood Comprehensive Plan.

   
   

   I. The Subject Property.

   
   

4. The property which is the subject of the Amendment (hereinafter referred to as the "Property"), consists of 109 acres of real property located in the City of Hollywood, a city located in the County.

   
   

5. The Property is located in the southeast section of the County.

   
   

6. The Property is located east of Southwest 35th Terrace, south of Griffin Road, west of Southwest 31st Avenue and north of Stirling Road.

   
   

7. The Property, and the property of which it is a part, is currently being used as a golf course. The golf course is named Oakridge Golf Course.

   
   

8. Oakridge Golf Course is an eighteen hole course.

9. Most, but not all, of the eighteen holes are located on the Property. The land use designation of twenty-nine acres of the parcel of property of which the Property is a part has been changed from Commercial Recreation to Commercial. The amendment changing the designation was adopted September 14, 1992 and has become final.

   
   

10. The twenty-nine acres of commercial property include portions of four of the holes of Oakridge Golf Course.

    
    

11. Oakridge Golf Course is the closest golf course to downtown Fort Lauderdale, a city located in the County; the Fort Lauderdale/Hollywood International Airport; the Broward County Convention Center; Port Everglades, a port used by cruise ships; and several large hotels located in the eastern part of the County.

    
    

    1. Compliance with the City of Hollywood Comprehensive Plan.

       
       

12. The City of Hollywood approved a Land Use Plan Amendment for the Property changing the land use designation of the Property to Low (3) Residential. The City's amendment has become final.

    
    

13. The evidence failed to prove that the Amendment is inconsistent with the City of Hollywood Comprehensive Plan.

    
    

    1. Data and Analysis to Support an Increase in Residential Property.

       
       

14. The Land Use Plan includes the following Goal and Objective concerning residential use of property in the County:

    
    

    GOAL 01.00.00

    
    

    PROVIDE RESIDENTIAL AREAS WITH A VARIETY OF HOUSING TYPES AND DENSITIES OFFERING CONVENIENT AND AFFORDABLE HOUSING OPPORTUNITIES TO ALL SEGMENTS OF BROWARD COUNTY'S POPULATION WHILE MAINTAINING A DESIRED QUALITY OF LIFE AND ADEQUATE PUBLIC SERVICES AND FACILITIES.

    
    

    OBJECTIVE 01.01.00 RESIDENTIAL DENSITIES AND

    PERMITTED USES IN RESIDENTIAL AREAS.

    
    

    Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those

    non-residential uses that are compatible with and necessary to support residential neighborhoods.

    
    

15. The Low (3) Residential land use designation is defined by the County Plan as permitting "up to three (3) dwelling units per gross acre." Page IV-23, Volume one, BC exhibit 1.

16. There has been a decrease of 2,214 dwelling units in the southeast sector of the County while the County's projected population increase has been increased by 1,327 people.

    
    

17. The evidence failed to prove that consideration of population needs of the southeast sector of the County is unreasonable or inappropriate. The evidence also failed to prove that consideration of the need for residential property by sectors is inconsistent with the County Plan or otherwise is unreasonable.

    
    

18. The City of Hollywood currently has sufficient land for approximately six thousand housing units. The evidence, however, failed to prove that all of the land can be utilized to meet future housing needs. As stated by Robert L. Davis, the Director of Community Planning and Development of the City of Hollywood, "[i]t really to be perfectly understood you need to explore the locational aspects of where that area is, how large an area it is and what inducement it would have to really encourage the kind of investment we think is necessary." Pages 276-277 of the transcript of the final hearing.

    
    

19. Ms. Nipe failed to present evidence to prove that the information submitted to the Department in response to the ORC as Attachment 8 to the Staff Report was inadequate to support the County's suggestion that the increase in residential property is necessary to accommodate projected population for the County.

    
    

20. Ms. Nipe also failed to present evidence to refute the methodologies used by the County and accepted by the Department.

    
    

    1. Commercial Recreation Requirements of the Plan.

       
       

21. The "Plan Implementation Requirements" of the Land Use Plan provides the following concerning the Commercial Recreation land use designation:

    
    

    Commercial Recreation areas are designated on the Future Broward County Land Plan Map (Series), consistent with Objective 02.03.00, to accommodate major public and private commercial recreation facilities which offer recreational opportunities to the residents and tourists of Broward County. Although some of these facilities operate as an adjunct to or an integral part of other types of development, most of these facilities were conceived as profit-making enterprises.

    Commercial recreation ventures in Broward County can be divided into two categories; golf courses and commercial recreation associated with structures and/or indoor facilities.

    Those uses permitted in areas designated commercial recreation are as follows:

    1. Outdoor and indoor recreation facilities such as active recreation complexes, marinas, stadiums, jai-alai frontons, bowling alleys, golf courses, and dog and horse racing facilities.

    2. Accessory facilities, including outdoor and indoor recreation facilities, that are determined by the local government entity

       to be an integral part of and supportive to the primary recreation facility (excluding residential uses).

    3. Hotels, motels and similar lodging ancillary to the primary commercial recreation use.

    4. Other active and passive recreation uses.

    5. Recreational vehicle sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the local land development regulations, or twenty (20) sites per gross acre if such location is prohibited by the local land development regulations; subject to the allocation by the local government entity of available flexibility or reserve units.

    
    

22. The following Objective and Policy relating to the Commercial Recreation land use designation is provided in the Land Use Plan:

    
    

    OBJECTIVE 02.03.00 COMMERCIAL RECREATION USE CATEGORY

    
    

    Establish within the Future Broward County Land Use Plan Map (Series) a commercial recreation category which would encompass those public and private recreational facilities necessary within a resort area such as Broward County.

    
    

    POLICY 02.03.01 Permit those uses within designated commercial recreation areas which are identified in the Commercial Recreation Permitted Uses subsection of the Plan Implementation Requirements section of the Broward County Land Use Plan.

    
    

23. Objective 02.03.00 merely requires the establishment of a "commercial recreation" category in the County Plan. It does not require that any specific amount of land be designated as commercial recreation or that, once so designated, the designation of a parcel of real property as commercial recreation should not be changed.

    
    

24. Policy 02.03.01 merely requires that any parcel of real property classified as commercial recreation may be utilized for the purposes identified in the Commercial Recreation Permitted Uses subsection of the Plan

    Implementation Requirements section of the County Plan. This policy does not require that any specific amount of land be designated as commercial recreation or that, once so designated, the designation of a parcel of real property as commercial recreation should not be changed.

    
    

25. The "Plan Implementation Requirements" of the Land Use Plan concerning the Commercial Recreation land use designation merely explain the purpose of the designation and identify the permitted uses within areas designated commercial recreation. There is no requirement contained in the Plan Implementation Requirements that a certain amount of land be designated commercial recreation or that, once so-designated, real property cannot be placed in a different category.

    
    

26. The evidence failed to prove that the County Plan prohibits the reclassification of real property from commercial recreation to other categories. No provision of the County Plan has been referred to that establishes a minimum requirement for commercial recreation.

    
    

27. The Property is not considered part of the parks and recreation property on the County. Therefore, the Amendment will not result in a decrease in the level of parks and recreation services available.

    
    

28. Ms. Nipe failed to prove that the Amendment is inconsistent with the County Plan as alleged in her petition.

    
    

    1. Degradation of School Services.

       
       

29. The County Plan does not establish "levels of service" for schools or a methodology for determining schools that are "affected" by an amendment.

    
    

30. Although the County has adopted goals, objectives and policies pertaining to educational facilities, those goals, objective and policies were not in effect at the time the Amendment was adopted.

    
    

31. The evidence failed to prove that any school services will be degraded as a result of the Amendment or that the impact of the Amendment on school services was not considered by the County in adopting the Amendment.

    
    

32. Ms. Nipe failed to prove that the Amendment is inconsistent with any portion of the County Plan dealing with school services.

    
    

    1. Degradation of Roads.

       
       

33. There are a number of goals, objectives and policies contained in the County Plan which address the issue of traffic facilities and circulation. Ms. Nipe has failed to cite any of those provisions in support of her argument that the Amendment "would place additional trips on existing over capacity roads. The County and Swerdlow have cited a number of provisions of the County Plan that deal with transportation. Those findings (County 37 and 38) are hereby incorporated into this Recommended Order.

    
    

34. An analysis of the traffic impact of the Amendment was prepared by the Planning Council and presented to the County for consideration. That analysis addressed: the net difference between vehicular trips from the golf course and those expected from the new classification of the Property; the distribution of the projected increase in traffic to affected roads (Griffin Road in the north and Stirling Road in the south); the average daily traffic on affected roads

    after the increase in traffic; and the anticipated level of service of the affected roads in the years 1997 and 2010.

    
    

35. The County's analysis indicated that the Amendment would not cause the affected roads to exceed the level of service contained in the County Plan in the short-term or long-term.

    
    

36. The method used in the County Plan and utilized in conjunction with the Amendment is consistent with plan amendment data and analysis requirements of Rule 9J-5 and Rule 9J-11, Florida Administrative Code.

    
    

37. The only evidence offered by Ms. Nipe in support of her challenge concerning traffic impact is a memorandum from "Roy Groves" of the County Office of Planning. Mr. Groves did not testify in this proceeding. The comments made by Mr. Groves, therefore, cannot be relied upon to support Ms. Nipe's contention. Additionally, Mr. Groves' comments deal with a "compact deferral area" resulting from an over-capacity road segment of State Road 7 and U.S. 441. The evidence failed to prove that the roads impacted by the Amendment are part of a compact deferral area or that State Road 7 and/or U.S. 441 will be impacted.

    
    

38. Ms. Nipe failed to prove that the impact on traffic of the Amendment is inconsistent with the Act, Chapter 9J-5, Florida Administrative Code or the County Plan.

    
    

    1. The Applicant's Rationale for the Amendment.

       
       

39. The Planning Council informed the County of the reasons advanced by the applicant for the Amendment. It was suggested that the proposed classification of the Property is consistent with the surrounding area and that the continued operation of the golf course is not longer financially feasible.

    
    

40. The evidence failed to prove that the Act and the rules promulgated thereunder, state and regional plans, or the County Plan require that applicants for County Plan amendments include a rationale or justification for the requested amendment.

    
    

41. The evidence also failed to prove that the applicant's rationale provided formed the basis for the County's decision to adopt the Amendment.

    
    

    1. The Impact on Oak Hammocks.

       
       

42. The Property does not include any oak hammocks.

    
    

43. The evidence failed to prove that there will be any impact on oak hammocks as a result of approval of the Amendment.

    
    

    1. Enhancement to the County's Tourist Industry.

    
    

44. The County Plan contains the following Goal, Objective and Policy relating to the tourist industry in the County:

    
    

    GOAL 03.00.00

    
    

    ACHIEVE A MORE DIVERSIFIED LOCAL ECONOMY BY PROMOTING TOURISM AND INDUSTRIAL GROWTH AND PROVIDING OPTIMUM PROTECTION OF THE COUNTY'S

    ENVIRONMENT AND MAINTAINING A DESIRED QUALITY OF LIFE.

    . . . .

    OBJECTIVE 03.03.00 ENHANCE BROWARD COUNTY'S TOURIST INDUSTRY

    Increase Broward County's attractiveness to tourists through the establishment of a land use pattern and development regulations aimed at enhancing the area's natural and man-made environments such as beaches, shorelines and marine facilities.

    . . . .

    POLICY 03.03.03 Activities intended to diversify Broward County's economy should not adversely impact the quality of life of the County's permanent, seasonal, or tourist populations.

    
    

45. The evidence failed to prove that the Amendment is inconsistent with the requirements of the Goal, Objective or Policy quoted in finding of fact 78.

    
    

46. There will still be three golf courses owned by the City of Hollywood and three privately owned golf courses open to the public in the City of Hollywood after the closure of Oakridge Golf Course.

    
    

47. Although there was testimony concerning the proximity of the Property to various areas of the County, the evidence failed to prove that tourist are attracted to the Property or that the loss of the golf course on the Property will adversely impact the tourist industry in Broward County.

    
    

48. There was also evidence that there are a limited number of commercial recreation uses of property such as golf courses in the County and that the establishment of additional commercial recreation golf courses is unlikely in urban areas. That evidence, however, failed to prove that the limited number of such uses is inadequate or that there is a need for additional golf courses.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

49. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

    
    

    1. General Legal Principles.

       
       

50. Section 163.3187, Florida Statutes (1993) describes the manner in which a comprehensive plan may be amended:

    
    

    1. Amendments to comprehensive plans adopted pursuant to this part may be made not more than two times during any calendar year, except:

       . . . .

    2. Comprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to

    s. 163.3177(2). . . .

    
    

51. Plan amendments are subject to review by the Department under the Act. The purpose of such review is to determine whether the plan amendment is "in compliance." Section 163.3184(8), Florida Statutes (1993).

    
    

52. The terms "in compliance" are defined in Section 163.3184(1)(b), Florida Statutes (1993), as:

    
    

    (b) "In compliance" 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.

    
    

53. Section 163.3177, Florida Statutes (1993), describes the "[r]equired and optional elements of comprehensive plan[s]" and the "studies and surveys" upon which they must be based. Section 163.3177, Florida Statutes (1993), specifies eleven elements which must be included in every comprehensive plan.

    
    

54. Section 163.3177(2), Florida Statutes (1993), provides:

    
    

    (2) 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 economically feasible.

    
    

55. Chapter 9J-5, Florida Administrative Code, was adopted by the Department pursuant to the Act and sets out the "minimum criteria" for review of comprehensive plans and plan amendments to determine whether they are "in compliance."

    
    

56. In determining whether a plan amendment is "in compliance" the determination must be based upon a consideration of the comprehensive plan in its entirety, including any amendments thereto. Department of Community Affairs

    v. Lee County, 12 FALR 3755, 3756-57 (Fla. Admin. Comm. 1990).

    
    

    1. Burden and Standard of Proof.

       
       

57. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

58. This proceeding was instituted by Ms. Nipe pursuant to Section 163.3184(9)(a), Florida Statutes (1993).

    
    

59. Section 163.3184(9)(a), Florida Statutes (1993), requires that Ms. Nipe demonstrate that the Amendment is not in compliance. Ms. Nipe was required

    to demonstrate that the Amendment is not in compliance by proving that the County's determination is not "fairly debatable."

    
    

    1. Standing.

       
       

60. Section 163.3184(9)(a), Florida Statutes (1993), allows any "affected person" to file a petition challenging proposed plan amendments.

    
    

61. An "affected person" is defined in Section 163.3184(1)(a), Florida Statutes, to include any person that owns property or resides in the boundaries of the local government whose plan or amendment is being reviewed if that person submits oral or written comments, recommendations or objections to the local government during the period of time beginning with the transmittal hearing and ending with the adoption of the amendment.

    
    

62. Ms. Nipe and the Intervenors proved that they have standing to participate in this proceeding.

    
    

    1. Ms. Nipe's Challenge.

       
       

63. The general nature of Ms. Nipe's challenge to the Amendment is described in finding of fact 36.

    
    

64. Ms. Nipe's challenge is not precisely stated and her proposed recommended order does little to explain the legal basis for her challenge.

    
    

65. In essence, Ms. Nipe has alleged that the Amendment is not consistent with several provisions of the County Plan. In particular, Ms. Nipe has cited page IV-29 of the Land Use Plan, Objective 02.03.00 (pertaining to the commercial recreation classification), and Goal 03.00.00, Objective 03.03.00 and Policy 03.03.03 (incorrectly cited as Policy 03.03.00 in Ms. Nipe's petition) (pertaining to tourism) .

    
    

66. Ms. Nipe has also alleged that the Amendment is not consistent with several general subjects dealt with in the County Plan without citing any specific provisions of the County Plan which deal with those subjects: school services and traffic services.

    
    

67. Ms. Nipe has also alleged that an adequate rationale for the Amendment has not been provided and that oak hammocks will be harmed.

    
    

68. Finally, Ms. Nipe has alleged that insufficient data and analysis have been provided to demonstrate a need for additional residential property in the County contrary to Rules 9J-5.006(2)(a) and (c), and 9J-11.006(1)(b)4. and (3), Florida Administrative Code.

    
    

    1. Alleged Lack of Data and Analysis.

       
       

69. Rule 9J-5.006(2)(a) and (c), Florida Administrative Code, provides the following:

    
    

    1. Land Use Analysis Requirements. The element shall be based upon the following analysis which support the comprehensive plan pursuant to Subsection 9J-5.005(2).

       1. An analysis of the availability of facilities and services as identified in the

          traffic circulation and sanitary sewer, solid waste, drainage, potable water and

          natural groundwater aquifer recharge elements, to existing land uses included in the data requirements above and land for which development orders have been issued;

          . . . .

          (c) An analysis of the amount of land needed to accommodate the projected population, including:

          1. The categories of land use and their densities or intensities or use;

          2. The estimated gross acreage needed by category; and

          3. A description of the methodology used.

          
          

70. Ms. Nipe cited Rule 9J-5.006(2)(a) and (c), Florida Administrative Code, in support of her argument that "[t]he residential density proposed by the amendment has not sufficiently been supported by data and analysis that the increase in residential density is necessary to accommodate the projected population." Ms. Nipe has failed to explain why she believes the data and analysis to support the increase in residential property as a result of the Amendment violates Rule 9J-5.006(2)(a), Florida Administrative Code. That rule deals with the services necessary to support residential development and not whether the projected population is sufficient to accommodate residential use of property.

    
    

71. To the extent that Ms. Nipe has cited Rule 9J-5.006(2)(a), Florida Administrative Code, in an effort to allege that there has been an inadequate analysis of traffic and other services with regard to the Amendment, Ms. Nipe has failed to adequately articulate such reliance. More importantly, Ms. Nipe has failed to prove that there has been inadequate analysis with regard to traffic and other services.

    
    

72. While Rule 9J-5.006(2)(c), Florida Administrative Code, does require adequate data and analysis to prove that an increase in residential property is supported by population projections, Ms. Nipe failed to prove that such data and analysis was not provided in this case with regard to the Amendment.

    
    

73. The evidence failed to prove that the Amendment is inconsistent with Rule 9J-5.006(2)(a) or (c), Florida Administrative Code. Adequate data and analysis concerning the need for additional residential property was provided by the County and accepted by the Department.

    
    

74. Rule 9J-11.006(1)(b)4. and (3), Florida Administrative Code, provide:

    
    

    (b) . . . . In the case of future land use plan map amendments, the following additional information must be provided:

    . . . .

    4. A description of the availability of and the demand on the following public facilities: sanitary sewer, solid waste, drainage, potable water, traffic circulation and recreation, as appropriate;

    . . . .

    1. All plan amendments must meet the requirements of Rule 9J-5, Florida Administrative Code.

    
    

75. Again, it is not clear how Rule 9J-11.006(1)(b)4. and (c), Florida Administrative Code, relate to Ms. Nipe's argument that adequate data and analysis was not provided to support the conclusion that an "increase in residential density is necessary to accommodate the projected population."

    
    

76. To the extent that Ms. Nipe has cited Rule 9J-11.006(1)(b)4. and (c), Florida Administrative Code, in an effort to allege that there has been an inadequate analysis of traffic and other services with regard to the Amendment, Ms. Nipe has failed to adequately articulate such reliance. More importantly, Ms. Nipe has failed to prove that there has been inadequate analysis with regard to traffic and other services which may be associated with the Amendment.

    
    

77. Ms. Nipe has failed to prove that the Amendment is inconsistent with 9J-11.006(1)(b)4. and (c), Florida Administrative Code.

    
    

    1. Alleged Inconsistency with Objective Pertaining to Commercial Recreation.

       
       

78. The specific objective pertaining to commercial recreation which Ms. Nipe has alleged the Amendment is inconsistent with has been quoted, supra.

    
    

79. The objective of the Plan cited by Ms. Nipe does not govern instances where property has been designated as commercial residential and the owner of the property seeks to reclassify the property.

    
    

80. In reviewing a plan amendment, the Department generally is required to determine whether the proposed land use designation contained in the amendment is consistent with the existing plan. The Department is not required to determine if the proposed land use will be consistent with its existing designation after it is reclassified.

    
    

81. Ms. Nipe has failed to cite any provision of the County Plan, the Act or the rules of the Department which deal with the issue of the appropriateness of changing the designated use of real property.

    
    

82. The evidence failed to prove that the Amendment is inconsistent or in any way violative of the objective concerning commercial recreational property cited by Ms. Nipe, the Act or the rules promulgated thereunder.

    
    

    1. Alleged Inconsistency with Cited Goals, Objectives and Policies Pertaining to Tourism.

    
    

83. The specific goal, objective and policy pertaining to tourism which Ms. Nipe has alleged the Amendment is inconsistent with have been quoted, supra.

    
    

84. The evidence presented failed to clearly establish what, if any, impact Oakridge Golf Course has on tourism in the County.

    
    

85. The evidence also failed to establish that the development that will result from the Amendment will have a negative impact on tourism in the County.

86. The evidence failed to prove that the Amendment is inconsistent or in any way violative of the goal, objective or policy cited by Ms. Nipe, the Act or the rules promulgated thereunder.

    
    

    I. Alleged Inconsistency with Traffic and School Service Requirements.

    
    

87. There is no minimum school level of service required by the Act or the rules promulgated thereunder.

    
    

88. The evidence failed to prove that there are minimum levels of service for school facilities contained in the County Plan.

    
    

89. Although the County has adopted goals, objectives and policies pertaining to educational facilities, those goals, objective and policies were not in effect at the time the Amendment was adopted.

    
    

90. Ms. Nipe has failed to prove what impact the Amendment will have on school facilities in the County or how any such impact will be inconsistent with the County Plan.

    
    

91. Ms. Nipe has failed to prove that the Amendment is inconsistent with any provision of the County Plan pertaining to schools or traffic or the Act and rules promulgated thereunder.

    
    

92. The County's analysis of the impact on traffic of the Amendment indicated that the Amendment would not cause the affected roads to exceed the level of service contained in the County Plan in the short-term or long-term. Ms. Nipe failed to prove that the County's analysis was not accurate.

    
    

93. Ms. Nipe also failed to prove that the method of analyzing traffic impacts used in the County Plan and utilized in conjunction with the Amendment were not consistent with plan amendment data and analysis requirements of Rule 9J-5 and Rule 9J-11, Florida Administrative Code.

    
    

94. Ms. Nipe failed to prove that the impact on traffic of the Amendment is not consistent with the Act, Chapter 9J-5, Florida Administrative Code or the County Plan.

    
    

    1. Alleged Lack of Adequate Rationale for the Amendment.

       
       

95. The definition of the terms "in compliance" does not require that an adequate rationale be provided by an applicant for a plan amendment. All that is required is that the amendment be consistent with the specified provisions of the Act, the state comprehensive plan, the regional policy plan and Chapter 9J- 5, Florida Administrative Code.

    
    

96. While it is true that a rationale was provided in this case, the evidence failed to prove that the rationale provided formed the basis for the County's decision to adopt the Amendment.

    
    

97. Ms. Nipe failed to prove that the rationale provided by the applicant causes the Amendment to be not in compliance.

    
    

    1. Alleged Impact on Oak Hammocks.

98. The evidence failed to prove that oak hammocks will be impacted by the Amendment or, if they were, how that impact is inconsistent with the County Plan.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order

finding that the Broward County Comprehensive Plan, as amended by Ordinance 93-

42, is "in compliance" within the meaning of Section 163.3184(1)(b), Florida Administrative Code (1993).

DONE AND ENTERED this 28th day of July, 1994, in Tallahassee, Florida.

LARRY J. SARTIN

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 28th day of July, 1994.

APPENDIX

Case Number 94-1610GM

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Ms. Nipe's Proposed Findings of Fact

1. Accepted in 35 and 36.

2. Statement of law.

3 Accepted in 10, 20, 27 and 41-42.

4 Accepted in 20 and 27. 5-6 Accepted in 56.

7-9 Accepted in 55.

10-11 Accepted in 43.

12-13 Although true, Ms. Nipe failed to explain the relevancy of these findings. See 57-60.

14-18 Accepted in 45.

1. Although true, Ms. Nipe failed to explain the relevancy of these findings. See 57-60.

2. Not supported by the weight of the evidence. 21-23 Accepted in 78.

24 Not relevant.

25-26 Not relevant. These proposed findings pertain to arguments not raised in Ms. Nipe's petition.

27 Accepted in 27. 28-29 Not relevant. 30-31 Accepted in 82.

32 Not relevant. These proposed findings pertain to arguments not raised in Ms. Nipe's petition.

33-34 Hereby accepted.

1. See 52.

2. Not supported by the weight of the evidence.

The County's Proposed Findings of Fact

1. Accepted in 1.

2. Accepted in 4.

3. Accepted in 3.

4. Accepted in 5 and 7.

5. Accepted in 6.

6. Accepted in 10.

7. Accepted in 11-12.

8. Accepted in 13.

9. Accepted in 17.

10. Accepted in 14.

11. Accepted in 15.

12. Accepted in 26.

13. Accepted in 20 and 27.

14. Accepted in 41-42.

15. Not relevant.

16. Accepted in 18.

17. Accepted in 19. 18-19 Accepted in 20.

20 Accepted in 25.

21-22 Hereby accepted.

1. Accepted in 26.

2. Accepted in 34.

3. Accepted in 78.

4. Hereby accepted.

5. Accepted in 79.

6. Accepted in 55.

7. Accepted in 56.

8. Accepted in 55.

31-32 Not relevant.

1. Accepted in 49.

2. Hereby accepted.

3. Accepted in 49.

4. Not relevant.

5. Accepted in 67.

6. To the extent relevant, accepted in 67.

7. Not relevant. See 64.

8. Accepted in 63.

41-45 Not relevant. The issue that these proposed findings relate to was not sufficiently raised in Ms. Nipe's petition.

52 Accepted in 76.

53-54 Not relevant.

55 Hereby accepted and see 36. 56-61 Not relevant.

62-63 Accepted in 74.

64 Accepted in 73. 65-66 Accepted in 21.

1. Accepted in 24 and hereby accepted.

2. Hereby accepted.

3. Accepted in 29 and 51.

4. Accepted in 31.

5. Accepted in 33.

6. Accepted in 53-54.

7. Accepted in 36.

8. Accepted in 23 and hereby accepted.

9. Accepted in 28.

10. Accepted in 23.

11. Accepted in 32.

12. Accepted in 68. 79-84 Hereby Accepted.

1. Accepted in 68.

2. Accepted in 70.

3. Accepted in 71. 88-91 Hereby accepted.

92 Accepted in 72.

93-94 Not relevant.

The Department's Proposed Findings of Fact

11-12 Accepted in 15.

13-14 Accepted in 56 and 78.

1. Accepted in 57-58 and 79

2. Accepted in 26.

3. Accepted in 35-36.

4. Accepted in 20 and 27.

5. Accepted in 38 and 40-41. The Property is not, however, in the unincorporated area.

6. Accepted in 21-22.

7. Accepted in 23-24.

8. Accepted in 23.

9. Accepted in 29 and 31.

10. Accepted in 28, 70 and 72.

11. Accepted in 33.

12. Accepted in 32.

13. Hereby accepted.

14. Accepted in 53-54. The last sentence is not supported by the weight of the evidence.

15. Accepted in 65-66.

Swerdlow's Proposed Findings of Fact

1. Accepted in 1.

2. Accepted in 2.

3. Accepted in 4.

4. Accepted in 3.

5. Accepted in 5 and 7.

6. Accepted in 6.

7. Accepted in 8.

8. Accepted in 9.

9. Accepted in 10.

10. Accepted in 11-12.

11. Accepted in 13.

12. Accepted in 17.

13. Accepted in 14.

14. Accepted in 16.

15. Accepted in 55.

16. See 15.

17. Accepted in 15 and 49.

18. Accepted in 48.

19. Accepted in 26.

20. Accepted in 35-36.

21. Accepted in 20 and 27.

22. Accepted in 38-40.

23. Accepted in 41.

24. Accepted in 43.

25. Accepted in 46.

26. Accepted in 18.

27. Accepted in 19.

28. Accepted in 20.

29. Accepted in 20.

30-32 Hereby accepted.

1. Accepted in 26.

2. Accepted in 21

3. Accepted in 21 and 23.

4. Accepted in 23.

5. Accepted in 228 and 32.

6. Accepted in 32.

7. Accepted in 24.

8. Accepted in 29 and 31.

9. Accepted in 33.

10. Accepted in 33 and hereby accepted.

11. Accepted in 34.

12. Accepted in 53.

13. Accepted in 50.

14. Accepted in 51.

15. Accepted in 36.

16. Accepted in 36 and 55. 49-50 Accepted in 57-60. 51-56 Not relevant.

1. Accepted in 36.

2. Accepted in 63.

3. See 64.

4. Accepted in 65.

5. See 65.

6. Not relevant.

7. Accepted in 65.

8. Not relevant.

9. Accepted in 36.

66-67 Accepted in 71

68-69 Hereby accepted.

70 Accepted in 68. 71-73 Hereby accepted.

1. Accepted in 67.

2. Hereby accepted.

3. Accepted in 68-69.

4. Hereby accepted.

5. Accepted in 68.

6. Hereby accepted. 80-81 Hereby accepted.

1. Accepted in 68-69.

2. Accepted in 67.

84-85 Hereby accepted.

1. Accepted in 23.

2. Accepted in 32.

3. Accepted in 36. 89-90 Accepted in 74.

1. Accepted in 36.

2. Accepted in 76-77.

3. Accepted in 79.

4. Accepted in 81.

5. Accepted in 80.

COPIES FURNISHED:

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Chris Mancino, Esquire

1215 Southeast Second Avenue, Suite 102 Fort Lauderdale, Florida 33316

Brigette A. Ffolkes Assistant General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Tracy H. Lautenschlager Assistant County Attorney

115 South Andrews Avenue Room 423

Ft. Lauderdale, Florida 33301

Barbara A. Hall, Esquire

515 East Las Olas Boulevard Suite 1500

Ft. Lauderdale, Florida 33301

William S. Spencer, Esquire Post Office Box 6 Hollywood, Florida 33022

Edwin J. Stacker, Esquire Post Office Box 1900

Ft. Lauderdale, Florida 33302

John H. Pelzer, Esquire Post Office Box 1900

Ft. Lauderdale, Florida 33302

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.

Docket for Case No: 94-001610GM

Orders for Case No: 94-001610GM