STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDMOND J. GONG and )

DANA L. CLAY, )

)

Petitioners, )

)

vs. ) CASE NO. 94-3506GM

) DEPARTMENT OF COMMUNITY ) AFFAIRS and CITY OF HIALEAH, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 7, 1994, in Hialeah, Florida.

APPEARANCES

For Petitioners: Edmond J. Gong, pro se

Dana L. Clay, pro se

6161 Blue Lagoon Drive, Suite 370

Miami, Florida 33126

For Respondent: Terrell K. Arline, Esquire (DCA) 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent: William M. Grodnick, Esquire (City) 501 Palm Avenue, 4th Floor

Hialeah, Florida 33010 STATEMENT OF THE ISSUE

The issue in this case is whether the City of Hialeah plan amendment adopted by Ordinance No. 94-27 on April 21, 1994, is in compliance.

PRELIMINARY STATEMENT

This case began on June 23, 1994, when petitioners, Edmond J. Gong and Dana

1. Clay, both affected property owners, filed a petition for formal administrative hearing alleging that a comprehensive plan amendment adopted by respondent, City of Hialeah, was not in compliance. The petition contended generally that when adopting the amendment, the local government had not sufficiently considered the impact of a proposed development known as Blockbuster Park or the traffic impacts of a limited access connector to Interstate 75 and an interchange connecting traffic from the connector to the Florida Turnpike. Petitioners also alleged that more than ten acres had been

   improperly redesignated from residential to commercial land use. The petition was forwarded by respondent, Department of Community Affairs, to the Division of Administrative Hearings on June 27, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

   
   

   By notice of hearing dated August 4, 1994, a final hearing was scheduled on December 19-21, 1994, in Hialeah, Florida. Thereafter, the City of Hialeah filed a request for expedited hearing under Subsection 163.3189(3), Florida Statutes. Over petitioners' objection, the request was granted by order dated August 25, 1994, and the matter was rescheduled to September 7 and 8, 1994, at the same location. On September 6, 1994, the case was transferred from Hearing Officer Larry J. Sartin to the undersigned.

   
   

   On August 29, 1994, petitioners filed a motion to dismiss for lack of jurisdiction over subject matter, motion for continuance, and motion for protective order. The motions were denied by order dated August 30, 1994. In response to that order, an emergency petition for writ of prohibition was filed by petitioners with the Third District Court of Appeal. The petition was denied by the court on September 1, 1994, "without prejudice to raise the issues presented herein on an appeal to this court from a final adverse judgment."

   
   

   At final hearing, petitioner Dana L. Clay testified on her own behalf as a lay witness. Petitioners jointly offered petitioners' exhibits 1-25. All exhibits were received in evidence. A ruling was reserved on petitioners' ore tenus motion to remand the case to the agency and is addressed in the conclusions of law portion of this Recommended Order. The Department of Community Affairs presented the testimony of Maria Abadal, an agency plan review administrator and accepted as an expert in comprehensive planning. Also, it offered DCA exhibits 1-4 which were received in evidence. The City of Hialeah presented the testimony of Camilo Jaime and Armando Guerra, both property owners, and Theodore G. Baldyga, the City's principal planner and accepted as an expert in land use planning. Also, it offered City exhibits 1-6 which were received in evidence. Finally, the parties stipulated to the admission of joint exhibit 1, which is a copy of the amended section 28 map.

   
   

   The transcript of hearing was filed on September 13, 1994. Proposed findings of fact and conclusions of law were filed by petitioners and the agency on September 22, 1994, and by the City on September 27, 1994. A ruling on each proposed finding is set forth in the Appendix attached to this Recommended Order.

   
   

   Based upon all of the evidence, the following findings of fact have been determined:

   
   

   FINDINGS OF FACT

   
   

   1. Background

      
      

      1. The Parties

         
         

         1. Respondent, City of Hialeah (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive plans and amendments thereto.

         2. Petitioners, Edmond J. Gong and Dana L. Clay (petitioners), reside in Coconut Grove, Florida and own at least two parcels of property within the City. The parties have stipulated that petitioners are affected persons within the meaning of the law and have standing to challenge the remedial amendment in issue here.

            
            

      2. The Nature of the Dispute

         
         

         1. In 1991 and 1992, the City adopted three sets of land use amendments to its comprehensive plan known as amendments 91-1, 91-2 and 92-1. Each set of amendments generated objections by the DCA, and the matters were later sent to the Division of Administrative Hearings and were assigned Case Nos. 91-6340GM, 92-3113GM and 92-7517GM, respectively. Petitioners did not participate in any of these proceedings. To resolve the objections raised by the DCA, the City and DCA negotiated a stipulated settlement agreement in December 1993, which was executed by the City on January 28, 1994. Pursuant to that agreement, on April 21, 1994, the City adopted a remedial amendment (Ordinance 94-27) known as amendment 94R-1. After reviewing the amendment, on June 2, 1994, the DCA issued a cumulative notice of intent to find such amendment in compliance. On June 7, 1994, the South Florida Regional Planning Council also found the amendment to be in compliance. Finally, on July 11, 1994, the DCA's motion to dismiss Case Nos. 91-6340GM, 92-3113GM and 92-7517GM was granted.

            
            

         2. Petitioners, who participated in the local hearings concerning the adoption of amendment 94R-1, timely filed their petition for administrative hearing on June 23, 1994, challenging the propriety of that amendment for various reasons. The petition was assigned Case No. 94-3506GM. Although petitioners failed to plead any procedural issues in the initial petition, respondents have agreed that petitioners may raise certain procedural objections regarding amendment 94R-1 since the procedural issues were raised in their objections and comments filed with the City during the adoption process of the amendment. Procedurally, petitioners argue that the local government did not comply with all statutory requirements in noticing its proposed approval of the settlement stipulation and its later intent to adopt an ordinance. As to the DCA, petitioners argue that the state agency did not comply with the law in publishing its cumulative notice of intent on June 2, 1994, and that the notice contained erroneous rule citations and lacked a geographical map.

            Substantively, petitioners complain that before final approval of amendment 94R-

            1 was given, the local government and DCA did not consider the enactment of Chapter 94-338, Laws of Florida, which created a multijurisdictional tourism, sports and entertainment special district known as the Blockbuster Park Special District, and they did not consider the traffic impacts of a recently opened connector to Interstate 75 and an interchange within the City that connects traffic from the connector to the Florida Turnpike. Finally, they contend that the amendment improperly redesignated more than ten acres of land from residential to commercial land use.

            
            

         3. Amendments 91-1, 91-2 and 92-1 involve ten amendments to the plan, all originally found not to be in compliance by the DCA. To cure three of those deficiencies, the City rescinded three ordinances leaving seven plan amendments to be remediated. Petitioners challenge the validity of these seven amendments but none change the use on their property. In reality, though, petitioners rely principally on their procedural objections in seeking to have a determination made that the amendment is not in compliance.

   2. Were the Notice Requirements Met?

      
      

      1. After the DCA and City reached an agreement in principle to resolve the DCA's objections to the plan amendments, a settlement agreement was prepared for execution by the City's mayor and DCA Secretary. Before the mayor could sign the agreement, however, the City Council's approval and authorization were required. Such approval and authorization to sign the agreement came in the form of a resolution adopted at a public hearing held on January 25, 1994. The agreement was later signed by the mayor and DCA Secretary on January 28 and March 3, 1994, respectively.

         
         

      2. The City had originally intended to consider the item at its January 11, 1994 meeting. Timely publication of notice was given for that meeting on December 27, 1993, in the regular edition of The Miami Herald, a newspaper of general paid circulation published daily in Dade County. At the January 11 meeting, however, the City discussed the matter but then deferred final action on the item until its next meeting on January 25, 1994. Accordingly, it republished a notice of its January 25 meeting in the Zone 4 Northwest Neighbors section of the Herald. The Zone 4 Northwest Neighbors section is an insert in the Herald each Thursday and Sunday and contains news pertaining to the northwest portion of Dade County, including the City. Because all copies of the Herald delivered and sold in northwest Dade County contain this particular Neighbors insert, the City complied with the requirement that the advertisement be published in a newspaper of general paid circulation within the jurisdiction of the City. Since petitioners reside and work outside of northwest Dade County, they say they did not receive the Neighbors insert in their paper and thus they were not aware of the January 25 hearing. There is no requirement, however, that the advertisement be published in other parts of Dade County. It is noted that even though they should have received notice of the January 11 hearing through the advertisement published in the regular edition of the Herald on December 27, 1993, they did not attend the hearing.

         
         

      3. The four-inch notice published on page 15 of the January 16, 1994 edition of the Neighbors section reads as follows:

         
         

         At its regular meeting of January 25, 1994, the Hialeah City Council will consider the following Resolution in addition to other business. Members of the public are invited to attend; the meeting begins at 7:00 p.m.

         at Hialeah City Hall, 501 Palm Avenue, Hialeah, Florida.

         
         

         RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, AUTHORIZING THE

         MAYOR TO ENTER A STIPULATED SETTLEMENT AGREEMENT IN CASE NOS. 91-6340GM, 92-3113GM AND 92-7517GM, ENTITLED "DEPARTMENT OF COMMUNITY AFFAIRS VS. CITY OF HIALEAH" NOW CONSOLIDATED BEFORE THE STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FOR TRANSMITTAL TO THE FLORIDA DEPART- MENT OF COMMUNITY AFFAIRS.

         
         

      4. Applicable state law (s. 163.3184(16), F.S.) called for the notice to be published at least ten days prior to the hearing. In addition, general provision 3 of the settlement agreement provided in part as follows:

         This agreement has been approved by the governing body at a public hearing advertised in an adver- tisement published at least 10 but not more than

         15 days prior to the hearing in the format prescribed for advertisements in Section 163.3184(15)(c) and Section 163.3187.

         
         

         Assuming the day of the hearing is not counted in computing the ten days, the City would have had to publish the notice by Saturday, January 15, 1994, in order to meet the ten-day requirement. Because the Neighbors section was not published on Saturdays, but rather only on Thursdays and Sundays, the City opted to publish the notice on Sunday, January 16, 1994, or just nine days before the hearing. This was necessary since the item was deferred at the January 11 hearing, and the City presumably was unable to meet the deadline for having an ad published only two days later in the Thursday, January 13, 1994 edition of Neighbors. Even so, petitioners were unable to show any prejudice by virtue of the City failing to meet the ten-day notice requirement.

         
         

      5. The settlement agreement called for the City to adopt certain remedial amendments by ordinance. These amendments are contained in Ordinance No. 94-27. Although state law (s. 163.3184(16)(d), F. S.) requires that the City hold only one advertised public hearing on a compliance amendment at the adoption stage, in accordance with the City Charter, two hearings were scheduled for that purpose on March 22 and April 12, 1994. A single one-quarter page advertisement in the regular edition of the Herald was published on March 17, 1994, or five days before the first hearing. The law (s. 163.3184(15)(b)2., F. S.) also requires that the hearing be "approximately 5 days after the day that the second (i. e., adoption stage) advertisement is published." The advertisement referred to both hearing dates and noted that their purpose was "to receive comments from interested parties on the Stipulated Settlement Agreement between the City of Hialeah and the Florida Department of Community Affairs related to the 1990 and 1991 Cycles I and II plan amendments to Hialeah's Comprehensive Plan." The advertisement also contained a list of the ten plan amendments and a map showing the portion of the City affected by each of those amendments. Although petitioners contended that the map was illegible in some respects, they nonetheless read the notice in the newspaper and attended both hearings to voice their objections to the ordinance. Notwithstanding petitioners' objections, on April 12, 1994, the City adopted the ordinance. Contrary to petitioners' assertion, the City complied with the notice requirements for both hearings. Assuming arguendo that the statutory notice requirements were not strictly met, petitioners failed to demonstrate that they were prejudiced by such an error.

         
         

      6. After reviewing the ordinance, on June 2, 1994, the DCA published in the Neighbors section of the Herald a cumulative notice of intent to find the plan amendments and remedial plan amendment in compliance. The advertisement was one-quarter page in size, identified the plan amendments in issue, advised readers that the amendments were in compliance, gave a location where such amendments and comments could be reviewed, and offered a point of entry to affected persons. Therefore, its content was sufficient to inform the public of the action being taken. The DCA concedes that in the notice, however, it cited rule 9J-11.012(8) as the provision dealing with the contents of a petition to challenge the amendments found to be in compliance when in fact the correct citation should have been rule 9J-11.012(7). There is no section (8) in the rule. The notice also cited former rule 22I-6.010 as the rule dealing with intervention when in fact that rule has been renumbered as rule 60Q-2.010. Even so, petitioners were unable to show how they were prejudiced by these minor

         errors, especially since they knew the nature of the action being proposed by the DCA, and they timely filed their petition for hearing to challenge the amendment.

         
         

      7. The DCA policy is to publish its notice of intent to find an amendment in compliance in the same local newspaper as the local government uses for its publication. The DCA also pointed out that by advertising in the Neighbors section as opposed to the regular edition of the Herald, it saved several thousand dollars. Therefore, the DCA used the Neighbors section of the Herald. At the same time, the DCA has never included in its advertisement a map showing the location of the land use changes being proposed. This is because the local government advertisements have already included a map, and the DCA notice is simply for the purpose of advising the public which ordinances are in or out of compliance.

         
         

      8. In the absence of any showing of prejudice, and in view of petitioners' failure to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the law, the cited procedural errors are insufficient to support a finding that amendment 94R-1 is not in compliance.

         
         

   3. The plan amendment

1. Since 1986, petitioners have owned two parcels of undeveloped property in the southern one-half and northwestern one-quarter of Tract 24 of Section 28, which is located in the western part of the City. The property consists of approximately six acres located at the northeastern intersection of West 76th Street and the Hialeah-Hialeah Gardens Boulevard. The property has been designated on the future land use map as low density (single-family) residential, which allows up to twelve units per acre. Petitioners have not specifically pled or shown how amendment 94R-1 adversely affects their property. Instead, they simply argue that the plan amendment is not in compliance because the City did not consider the impacts of "drastically changed circumstances" before adopting the remedial ordinance, and the City improperly reclassified a small tract of land. These claims will be considered below.

   
   

2. Effective June 3, 1994, Chapter 94-338, Laws of Florida, became law. That law created a multijurisdictional tourism, sports and entertainment special district more commonly known as Blockbuster Park. That legislation, however, is not relevant to this proceeding for several reasons. First, there is no mechanism to consider multijurisdictional impacts in the local planning process. Second, the special act did not become law until after the amendment process here had been completed. Since the City was only required to consider the best available data present at the time the amendment was being reviewed and adopted, consideration of the special law was neither necessary or appropriate. Third, the act itself does not authorize a development. If and when a development order is approved, the City can update its plan to take into account any impacts from the project.

   
   

3. As to the contention that the City and DCA failed to take into account the six-lane connector road completed on December 31, 1993, or two years after the plan amendments were adopted, the impact of the connector road is identified and discussed on pages 21 and 23C of the future land use element contained in the remedial amendments. At hearing, it was further explained that the connector road is a limited access regional road under the control of Dade County, and not the City. This means that there is no access to the connector from properties which front on the road, and local access will be limited to

   three major road intersections. No land use changes along the road have been proposed, and the City has adequately addressed the circulation map requirements in the plan and how the internal circulation routes would be compatible with the major connectors. This being so, it is found that the City and DCA gave adequate planning consideration to the connector.

   
   

4. Finally, petitioners contended that certain land was improperly redesignated from single-family residential to multi-family and commercial use. They complain that this is inappropriate since the land is close to a school and does not lie near a major intersection. The evidence shows, however, that such redesignation was appropriate since the land is located at an intersection and lies just across the street from an existing five-acre commercial tract. Moreover, the multi-family part of the tract will serve as a buffer between the commercial use at the intersection and the existing single-family use to the south. Then, too, the proximity of a nearby school to the west will serve to reduce trip time for persons shopping in the area while dropping off or picking up children from the school. Finally, some types of commercial use in residential neighborhoods can serve valid planning purposes, and the City has already established a pattern of having some schools located near commercially designated property. The redesignation is found to be reasonable and based on appropriate planning considerations.

   
   

5. Although no proof was submitted by petitioners regarding any other parts of the plan amendment, respondents demonstrated that all remaining parts are supported by adequate data and analysis and are in compliance. Accordingly, petitioners have failed to prove to the exclusion of fair debate that remedial amendment 94R-1 is not in compliance.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsections 120.57(1) and 163.3184(9), Florida Statutes.

   
   

7. The broad issue in this case is whether the plan amendment is "in compliance" with Part II of Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. "In compliance" as defined in Subsection 163.3184(1)(b), Florida Statutes, means the plan is consistent with applicable provisions of Chapter 163, Florida Statutes, the Regional Policy Plan and Chapter 9J-5, Florida Administrative Code.

   
   

8. This case arose under Subsection 163.3184(9)(a), Florida Statutes, following the DCA's notice of intent to find the plan amendment in compliance. Under that statute, the plan amendment shall be determined to be "in compliance" if the local government's determination of compliance is fairly debatable. Therefore, the action of the City (and DCA) must be approved "if reasonable persons could differ as to its propriety." B & H Travel Corporation v. Department of Community Affairs, 602 So.2d 1362, 1365 (Fla. 1st DCA 1992).

   
   

9. In this case, petitioners have raised both procedural and substantive objections to the plan amendment. In reality, though, they rely wholly upon their contention that the local government and DCA have failed to comply with certain procedural requirements of the law in giving notice to the public concerning the adoption of amendment 94R-1 and the subsequent determination that the amendment is in compliance. This conclusion is based on the fact that petitioners have devoted their entire proposed recommended order to addressing the alleged procedural flaws. As relief, petitioners request that all plan

   amendments "be reconsidered de novo after due public notice compliance is effected" by the City and DCA, and that during this reconsideration process, the City and DCA consider the "present impact of all changed circumstances which have occurred" since 1991.

   
   

10. Initially, it is noted that the alleged procedural errors raised by petitioners are not jurisdictional in nature, but rather are matters to be considered in determining whether the plan amendment as a whole is in compliance. The Caliente Partnership v. Johnston, 604 So.2d 886, 887 (Fla. 2nd DCA 1992) (45-day time period for publishing a notice of intent prescribed by subsection 163.3184(8)(b) found to be nonjurisdictional). Accord: Dept. of Community Affairs v. Metro Dade County, Case No. 89-564GM (DOAH, Order dated May 5, 1989); Dept. of Community Affairs v. Metro Dade County, Case No. 90-3599GM (DOAH, Recommended Order dated December 26, 1991). Therefore, contrary to petitioners' claim, if a statutory notice requirement has not been timely satisfied, or an other minor error is present, the earlier actions by the City and DCA are not a "nullity." Rather, petitioners must still demonstrate to the exclusion of fair debate that, when viewing the unsatisfied criterion with the plan amendment as a whole, that the plan amendment is not compatible with, furthers, or takes action in the direction of realizing, the goals and policies of the Act. B & H Travel Corporation at 1366. At the same time, when a person asserts that statutory notice requirements have not been satisfied, he bears the burden of showing prejudice occasioned by the procedural error, a task made much more difficult when, as here, petitioners had actual notice of the relevant hearings and agency action and participated throughout the proceeding. Cf. Schumacher v. Town of Jupiter, 19 F.L.W. D1779, D1780 (Fla. 4th DCA, August 24, 1994)(where person challenging statutory notice requirements read notice, attended hearing, and fully participated, he is estopped from asserting a defect in the notice).

    
    

11. Petitioners first contend that the City failed to comply with the requirements of Subsection 163.3184(16)(c), Florida Statutes, and Rule 9J- 11.013(3), Florida Administrative Code, in advertising its January 25, 1994 hearing. The statute requires that a settlement (compliance) agreement be approved by the local government "at a public hearing advertised at least 10 days before the public hearing in a newspaper of general circulation in the area in accordance with the advertisement requirements of subsection (15)." The cited rule tracks this statutory provision. The record shows that the City published the advertisement only nine days before the hearing, instead of the required ten days. Even so, there was no evidence that petitioners suffered prejudice by virtue of this minor error, and petitioners failed to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the Act. Petitioners' first argument must accordingly fail.

    
    

12. The contention that the City failed to properly advertise its adoption stage hearings on March 22 and April 12, 1994, must likewise fail. This is because the City complied with Subsections 163.3184(15)(b)2. and 163.3184(16)(d), Florida Statutes, which require that (a) the adoption hearing be held on a weekday "approximately 5 days after the day that the second advertisement is published," and (b) only a single hearing be held for the adoption of a compliance amendment. Since the evidence shows that the first adoption stage hearing occurred on a weekday approximately five days after the advertisement was published on March 17, 1994, and the second hearing occurred some three weeks later pursuant to the same advertisement, the requirements of the statutes were substantially satisfied. Similarly, the undersigned has

    rejected the contention that the advertisement was flawed because the geographic map contained therein was blurry or illegible. This is because petitioners acknowledge that they were on notice as to the changes being proposed.

    
    

13. Petitioners next contend that the DCA failed to comply with statutory notice requirements in advertising its notice of intent to find the plan amendment in compliance. In considering this claim, it is noted that the overriding legislative concern is that "the content of the notice . . . be sufficient to inform the public of the action taken." Subsection 163.3184(8)(b), F. S. The established facts herein support a conclusion that this concern was satisfied. The fact that the notice contained two erroneous rule citations and lacked a geographic map does not alter this conclusion. This is because petitioners have failed to demonstrate prejudice because of these minor shortcomings, and they have not claimed nor proven that they were misled, confused, or otherwise deprived of their right to fully participate in this proceeding.

    
    

14. In their motion to dismiss filed on August 29, 1994, petitioners contended that the publication of the various advertisements in the Neighbors section of The Miami Herald was not in compliance with Subsection 163.3184(15)(c), Florida Statutes. That subsection requires that the advertisement be "published in a newspaper of general paid circulation in the local government's jurisdiction . . . published at least 5 days per week." In support of this argument, petitioners relied principally on the case of Benson

    v. City of Miami Beach, 591 So.2d 942 (Fla. 3rd DCA 1991), a decision which held a notice published in the Neighbors section was defective since the section was not published county-wide as then required by Subsection 163.3184(15)(c), Florida Statutes (1989). In response to the Benson decision, however, the legislature specifically amended the law to provide for publication in newspapers "in the jurisdiction of the county or municipality, whichever is applicable." Since the Neighbors section is published in the jurisdiction of the municipality, petitioners' reliance on the Benson decision is misplaced, and it is concluded that publication in the Neighbors section satisfies the law.

    
    

15. Finally, in their proposed recommended order petitioners have raised for the first time the claim that the advertisements for the notices of intent to find plan amendments 91-1, 91-2 and 92-1 not in compliance published by the DCA in 1991 and 1992 were in a newspaper which did not satisfy the then effective county-wide circulation requirement. Because petitioners were not parties to those proceedings, and Case Nos. 91-6340GM, 92-3113GM and 92-7517GM have now been closed, they have waived their right to challenge the notices. Even if such waiver had not occurred, in the absence of any showing of prejudice, their contention must fail.

    
    

16. As to the substantive issues raised in the petition, the more credible and persuasive evidence supports a conclusion that the plan amendments and remedial amendment are supported by adequate data and analysis, are consistent with other provisions of the law and applicable agency rules, and are therefore in compliance. Even when the unsatisfied, albeit minor, procedural criteria noted above are taken into account, when viewing the plan amendment as a whole, the same conclusion must be reached. Therefore, it is concluded that petitioners have failed to prove to the exclusion of fair debate that the plan amendment is not in compliance.

    
    

17. Petitioners' ore tenus motion to remand proceeding to the agency is hereby denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order

determining the City of Hialeah comprehensive plan amendment to be in compliance.

DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 11th day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3506GM

Petitioners:

1-2. Partially accepted in finding of fact 2.

3. Partially accepted in finding of fact 3.

4-20. Partially accepted in findings of fact 5-8. 21-24. Partially accepted in findings of fact 9.

1. Partially accepted in findings of fact 10 and 11.

2. Partially accepted in finding of fact 4. 27-29. Covered in preliminary statement.

1. Rejected as irrelevant.

2. Rejected as unnecessary. 32-35. Rejected as irrelevant.

36-38. Partially accepted in finding of fact 6. 39-41. Partially accepted in finding of fact 11.

42. Rejected as unnecessary.

Respondent DCA:

1-12. Covered in preliminary statement.

13. Partially accepted in finding of fact 1.

Respondent City:

Because the City's proposed recommended order was not timely filed, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding of fact. See Sunrise Community, Inc.

v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993).

Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues.

COPIES FURNISHED:

Mr. Edmond J. Gong Ms. Dana L. Clay

6161 Blue Lagoon Drive, Suite 370

Miami, FL 33126

Terrell K. Arline, Esquire 2740 Centerview Drive

Tallahassee, FL 32399-2100

William M. Grodnick, Esquire

501 Palm Avenue, 4th Floor Hialeah, FL 33010

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

Tallahassee, FL 32399-2100

Dan R. Stengle, Esquire General Counsel

Department of Community Affairs 2740 Centerview Drive

Tallahassee, FL 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS

EDMOND G. GONG AND DANA L. CLAY,

Petitioners,

vs. DOAH CASE NO. 94-3506GM

FINAL ORDER NO. DEPARTMENT OF COMMUNITY AFFAIRS DCA94-439-FOF-CP and CITY OF HIALEAH,

Respondents.

/

FINAL ORDER

The issue before the Agency issuing this final order, the Department of Community Affairs, is whether the City of Hialeah comprehensive plan amendment, adopted by Ordinance No. 94-27, is in compliance.

On June 23, 1994, petitioners Edmond J. Gong and Dana L. Clay filed a petition for formal administrative hearing in which they alleged that the comprehensive plan amendment adopted by the City of Hialeah was not in compliance. The petition was forwarded by the Department of Community Affairs (hereinafter "Department" or "DCA") to the Division of Administrative Hearings for a formal administrative hearing.

A formal administrative hearing was held by Hearing Officer Donald R. Alexander on September 7, 1994, in Hialeah, Florida, following a request for expedited resolution of the case, pursuant to subsection 163.3189(3), Florida Statutes, filed by the City of Hialeah. A transcript of the hearing was filed on September 13, 1994.

On October 11, 1994, the Hearing Officer issued his Recommended Order, which was received by the Agency on October 12, 1994. The Recommended Order is attached hereto as Exhibit A, and is incorporated herein by reference. This final order is issued under the statutory provisions, including time periods, applicable to expedited resolution.

Exceptions to the Recommended Order were timely filed by Petitioners Edmond

J. Gong and Dana L. Clay. Pursuant to Rule 9J-11.012(7)(g), Florida Administrative Code, Respondents Department of Community Affairs and City of Hialeah timely filed separate Responses to Exceptions of Petitioners.

In their Exceptions, Petitioners request oral argument before the Secretary of Community Affairs. Both the Department of Community Affairs and the City of Hialeah object to such oral argument. Petitioners have filed a Memorandum in Support of Prayer for Oral Argument, and a Supplemental Memorandum in Support of

Prayer for Oral Argument. The ruling on the request for oral argument is made in this order, infra, following rulings on each of Petitioners' exceptions.

Section 120.57(1)(b)10., Florida Statutes (1993), a component of the Administrative Procedure Act, provides, in pertinent part:

The agency may adopt the recommended order

as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

Thus, the Agency may reject findings of fact in the Recommended Order only if those findings of fact are not supported by competent, substantial evidence. The Agency may accept the findings of fact in the Recommended Order, however, and reject the Hearing Officer's conclusions of law. Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982); Seiss v. Department of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Bustillo v. Department of Professional Regulation, 561 So.2d 610 (Fla. 3d DCA 1990).

References to the transcript of the proceedings before the Division of Administrative Hearings are specified by "TR" in parentheses followed by a number which denotes pages of the transcript.

1. EXCEPTIONS OF PETITIONERS EDMOND J. GONG AND DANA L. CLAY

   
   

   Exception #1. Petitioners take exception to Finding of Fact #2, and argue that it should more accurately state that Petitioners Edmond J. Gong and Dana L. Clay, husband and wife, reside in Coconut Grove, Miami, Florida, and that Coconut Grove is a neighborhood located within the City of Miami. Petitioners do not assert that the finding of fact in issue is not supported by competent, substantial evidence.

   Finding of Fact #2 states, in its entirety: Petitioners, Edmond J. Gong and Dana L.

   Clay (Petitioners), reside in Coconut Grove,

   Florida and own at least two parcels of property within the City. The parties have stipulated that petitioners are affected persons within the meaning of the law and have standing to challenge the remedial amendment in issue here.

   Although, as Petitioners assert, the finding of fact could be more accurately stated, that is not the standard applicable to findings of fact. Finding of Fact #2 is supported by competent, substantial evidence (TR 35 and 55), and therefore must be sustained.

   
   

   PETITIONERS' EXCEPTION #1 is DENIED.

   
   

   Exception #2. Petitioners take exception to the "implication" of the following statement in Finding of Fact #3, "Petitioners did not participate in any of these proceedings." Petitioners assert that they did not have the chance to participate in the proceedings referred to -- three sets of land use amendments adopted by the City of Hialeah in 1991 and 1992 (91-1, 91-2, and 92-1) -- because notices of the subject proceedings were inadequate. Petitioners assert that, because of the inadequate notices, they first saw notices for intent published by the Department of Community Affairs "during the Formal Hearing for 91-1, 91-2 and 92-1." The Petitioners, in this exception, state that the newspapers in which the notices were published do not comply with the requirements of section 163.3184(15)(c), Florida Statutes.

   
   

   Paragraph (c) of subsection (15) of section 163.3184, Florida Statutes, is relevant to this exception, and a number of other exceptions that Petitioners have filed which are directed to notice. The paragraph provides as follows:

   
   

   If the proposed comprehensive plan or

   plan amendment changes the permitted uses of land or changes land use categories, the required advertisements shall be no less than one-quarter page in a standard size or a tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point. The advertisement shall not be placed in that portion of the newspaper where legal notices and classified advertisements appear. The advertisement shall be published in a newspaper of general paid circulation in the jurisdiction of the county or municipality, whichever is applicable, and of general interest and readership in the county or municipality, whichever is applicable, not one of limited subject matter, pursuant to chapter 50.

   Whenever possible, the advertisement shall appear in a newspaper that is published at least 5 days a week, unless the only newspaper in the jurisdiction is published less than 5 days a week. The advertisement shall be in substantially the following form:

   
   

   NOTICE OF CHANGE OF LAND USE

   
   

   The (name of local governmental unit) proposes to change the use of land within the area shown in the map in the advertisement.

   A public hearing on the proposal will be held on (date and time) at (meeting place).

   The advertisement shall also contain a geographic location map which clearly

   indicates the area covered by the proposal. The map shall include major street names as a means of identification of the area.

   
   

   Petitioners cite to portions of the transcript to support their contentions with regard to the notice published in The River Cities Gazette. No such record citations are made with respect to Petitioners' contentions regarding notice published in the Neighbors section of The Miami Herald.

   
   

   A careful reading of the transcript portions cited reveals that some questions were asked of witnesses with respect to The River Cities Gazette and the notice published therein. Nonetheless, the frequency of the newspaper's publication and the adequacy of the notice based upon the requirements of section 163.3184 were not among them. Indeed, Petitioners did not present a case in this proceeding before the Division of Administrative Hearings -- until Petitioners filed their proposed recommended order -- that the notices which led to the proceedings which are the subject of this exception were inadequate.

   Moreover, as the Hearing Officer concluded in Conclusion of Law #27, to which Petitioners have directed their Exception #27, they have waived their right to challenge the adequacy of such notice. See ruling on Petitioners' Exception #27, infra.

   
   

   There is no record evidence to support Petitioners' contentions in these regards as presented in this exception. The finding of fact objected to is supported by competent, substantial evidence (TR 65).

   
   

   PETITIONERS' EXCEPTION #2 is DENIED.

   
   

   Exception #3. In this exception; Petitioners take issue with Finding of Fact #4 wherein it was stated:

   
   

   Although petitioners failed to plead any procedural issues in the initial petition, respondents have agreed that petitioners may raise certain procedural objections

   regarding amendment 94R-1 since the procedural issues were raised in their objections and comments filed with the City during the adoption process of the amendment.

   
   

   This finding of fact is characterized by Petitioners as "gratuitously" made by the Hearing Officer. Petitioners assert in this exception that their petition included an attachment which was a letter to the Hialeah City Council stating that the advertisement in The Miami Herald did not meet the requirements of section 163.3184(15)(c), Florida Statutes.

   Petitioners take exception to the alleged failure of the Hearing Officer to correctly and fully state Petitioners [sic]

   continuing fundamental basic argument and

   position throughout this matter on the serious implications ensuing from Hialeah's failure to comply with ALL statutory

   requirements in noticing its proposed approval of the stipulated Settlement Agreement and later, its intent to adopt an ordinance implementing the stipulated Settlement

   Agreement. The net impact of these

   violations of procedure is that the DOAH lacks jurisdiction over the subject matter which

   the Hearing Officer has ruled upon. [Emphasis in original.]

   
   

   The Petitioners also wish to correct the date in the Recommended Order which states that the City adopted Ordinance 94-27 on April 21, 1994; the correct date is April 12, 1994. This typographical error appears in the "Statement of the Issue" and Finding of Fact #3 of the Recommended Order.

   
   

   Respondents agreed to allow Petitioners to raise certain procedural objections regarding amendment 94R-1, since the procedural issues were raised by the Petitioners in their objections and comments filed with the City during the amendment adoption process (TR 31-34). In its review of the portions of the record -- including the statement of one of the Petitioners that publication matters were not raised in the initial petition (TR 19) -- and the petition at issue, the Agency does not find a sufficient basis for granting the exception.

   
   

   Petitioners assert that subject matter jurisdiction is lacking due to procedural errors as regards notice in various proceedings relevant to this proceeding. That being the case, the alleged absence of subject matter jurisdiction is more appropriately addressed following specific rulings on each alleged procedural defect raised in Petitioners' filed exceptions. Thus, the issue of subject matter jurisdiction is considered and disposed of in the ruling on Exception #12, infra.

   
   

   As to the typographical error, that is hereby corrected. The adoption date of Ordinance 94-27 is April 12, 1994.

   
   

   PETITIONERS' EXCEPTION #3 is ACCEPTED IN PART to correct a typographical error; in all other respects, it is DENIED.

   
   

   Exception #4. Petitioners take exception to Finding of Fact #4 on page 6. Actually, this paragraph was numbered in error, and thus there are two paragraphs #4 in the Recommended Order. Thus, this exception deals with the second of the paragraphs which is numbered as #4.

   
   

   In this exception, the Petitioners disagree with the Hearing Officer's statement, "[P]etitioners rely principally on their procedural objections in seeking to have a determination made that the amendment is not in compliance." The Petitioners reiterate their argument that the invocation of jurisdiction in the Division of Administrative Hearings is perfected only by the fulfillment of the mandatory notice requirements in sections 163.3184(15)(c) and (16)(c), Florida Statutes.

   
   

   Petitioners' assertion that there is no subject matter jurisdiction for the proceeding before the Division of Administrative Hearings, as noted above, is considered and disposed of fully in the disposition of Petitioners' Exception #12, below. With respect to the specific statement to which Petitioners take this exception, there is no basis for overturning it.

   
   

   PETITIONERS' EXCEPTION #4 is DENIED.

   
   

   Exception #5. In this exception, Petitioners take exception to Finding of Fact #5 insofar as it states, "Such approval and authorization to sign the [settlement) agreement came in the form of a resolution adopted at a public

   hearing held on January 25, 1994." Petitioners assert that neither the City of Hialeah nor the Department of Community Affairs put on evidence that the public hearing was actually held by the City Council of the City of Hialeah when it adopted the stipulated Settlement agreement.

   
   

   Copies of the resolutions of the City approving the settlement agreement were made part of the record. It is the province of the Hearing Officer to interpret evidence and to draw reasonable inferences therefrom. Heifetz v.

   Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). The Hearing Officer determined that the meeting was properly noticed (see Finding of Fact #6 of the Recommended Order) and found that the resolution was adopted at the meeting (in Finding of Fact #5); the Hearing Officer reasonably inferred therefrom that the resolution was adopted at the public hearing. It was the Petitioners' burden to demonstrate that the public hearing did not take place, not the Department's or the City's. Young v. Department of Community Affairs, 625 So.2d 831 (Fla. 1993). The exception, therefore, is not well-grounded.

   
   

   PETITIONERS' EXCEPTION #5 is DENIED.

   
   

   Exception #6. Petitioners take exception to Finding of Fact #6 and the conclusion of law contained therein. This exception generally attacks the notice given by the City of Hialeah as not complying with section 163.3184(15), Florida Statutes. In part, Petitioners assert that publication in the Neighbors section of The Miami Herald does not comport with the requirement that the notice be published in a newspaper of "general paid circulation." Since the Neighbors section cannot be purchased separately from The Miami Herald, Petitioners assert, it is not a newspaper of "general paid circulation" as the law requires. In similar fashion, Petitioners argue that the Neighbors section is published in The Miami Herald only twice a week, and thus the Neighbors section does not meet another statutory requirement that the notice shall appear in a newspaper "that is published at least 5 days a week."

   
   

   To the contrary, it is The Miami Herald which is the newspaper of general paid circulation that is published at least 5 days a week. The Neighbors section is a component of that newspaper; it is precisely because it cannot be purchased separate and apart from The Miami Herald that the Neighbors section is not a newspaper in and of itself for the purposes of the law. Thus, notice published in the Neighbors section of The Miami Herald meets the requirement of section 163.3184(15), Florida Statutes, that the notice be published in a "newspaper of general paid circulation," and one "that is published at least 5 days a week."

   
   

   Further, Petitioners take specific exception to the following statement in the Finding of Fact, "There is no requirement, however, that the advertisement be published in other parts of Dade County." To this statement, Petitioners argue, "The net result of the statutory and regulatory requirements militate for a contrary conclusion . . . ." As noted by the Hearing Officer in Conclusion of Law #26, Petitioners have relied on the case of Benson v. City of Miami Beach,

   591 So.2d 942 (Fla. 3d DCA 1991), which held that notice in the Neighbors section was defective since that section was not published county-wide, as was required at that time by subsection 163.3184(15)(c), Florida Statutes (1989). The Legislature nullified the Benson decision by subsequent amendment, however. The statute now provides, and provided at the time the subject notice was given in this cause:

   The advertisement shall be published in a newspaper of general paid circulation in the jurisdiction of the county or municipality, whichever is applicable . . .

   [Emphasis added.)

   
   

   There is competent, substantial evidence that the edition of The Miami Herald which carried the notice was published in the City of Hialeah (TR 64), which is what the law requires. The exception in this regard is without merit.

   
   

   Additionally, Petitioners take exception to the following statement:

   
   

   It is noted that even though they should have received notice of the January 11 hearing through the advertisement published in the regular edition of the Herald on December 27, 1993, they did not attend the hearing.

   
   

   Petitioners do not assert that this statement is not based upon competent, substantial evidence. Instead, the exception taken to this statement is mere reargument of the position of the Petitioners that did not prevail in the proceeding before the Hearing Officer, and thus cannot be granted.

   
   

   As well, Petitioners take exception to the following statement of Finding of Fact #6:

   
   

   At the January 11 meeting, however, the City discussed the matter but then deferred final action on the item until its next meeting on January 25, 1994.

   
   

   With respect to this issue, Petitioners state that there is no evidence in the record that the City discussed the matter at the meeting. There is competent, substantial evidence in the record that the action on the noticed item was deferred at the first meeting (TR 58) and was acted upon at the January 25, 1994 meeting (TR 48-50). The Hearing Officer is entitled to draw permissible inferences from the evidence presented, Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985), and findings of fact forthcoming from administrative triers of fact are entitled to as much weight and respect as bury verdicts, Gruman v. State Department of Revenue, 379 So.2d 1313 (Fla. 2d DCA 1980). Given the deference that must be given to a Hearing Officer's findings of fact, and considering the applicable portions of the record in this cause, there is no basis to overrule this particular statement in Finding of Fact #6, to which Petitioners object.

   
   

   PETITIONERS' EXCEPTION #6 is DENIED.

   
   

   Exception #7. Petitioners take exception to Finding of Fact #7 insofar as the finding describes the notice published by the City of Hialeah in the January 16, 1994 edition of the Neighbors section of The Miami Herald as a "four-inch notice," rather than a four-column-inch notice.

   
   

   Petitioner Gong stated, at the hearing below, in pertinent part:

   
   

   It is our contention, Your Honor, that what they signed was a nullity, because of

   the mandatory requirements of the statute. Very clear, it says at least ten days before the public hearing, and it was published on the 16th of January 1994. The public hearing was held on January 25th. There's an issue with respect -- which we won't dwell on, Your Honor, about it was too small, it was in the wrong -- it was in Neighbors newspaper, rather than the Miami Herald. That's a Benson issue. And it didn't say "public hearing" anywhere in the notice. It didn't have a headline or a map, and what it had, actually, was the nine days' notice. It was four inches in size. . . .

   [Emphasis added.]

   
   

   (TR 8.) Petitioner Clay testified as follows with respect to another notice published Monday, December 27, 1993, in which she makes no distinction between "inches" and "column inches":

   
   

   MR. GRODNICK: [T]he characterization of the ad as being "small" and "very small" is irrelevant. It's just --

   
   

   THE WITNESS: Well, it's four inches.

   
   

   MR. GRODNICK: Except the size, whatever size.

   
   

   THE WITNESS: Well, I'll tell you what the size is. The size is four inches. In newspapers -- This is how I earn my living. In newspapers, you take the number of columns that an ad is by the height of it and you multiply it. Actually, this ad is really only -- It's a little less than four inches.

   
   

   MR. GRODNICK: Basically, as to relevancy, we've admitted the ad in evidence. The legal effect of the ad will be discussed. The

   fact that you're telling us that you're in advertising and you're measuring the ad

   -- I think the ad speaks for itself. This

   is not evidence that's assisting the trier of fact here.

   
   

   MR. GONG: Judge, I'm --

   
   

   MR. GRODNICK: Let's move on to something --

   
   

   THE WITNESS: The fact is, the ad is four inches. I mean, I didn't make that up.

   That's what it is.

   
   

   (TR 42-43.) In testimony directly following, Petitioner Clay testified as follows with respect to the January 16, 1994 ad in the Neighbors section of The Miami Herald (comparing it to the December 27, 1993 ad), "I found the ad,

   basically the same copy, a little -- proportionately, it appears a little larger, because of this tabloid size page . . . ." (TR 45.)

   
   

   Irrespective of the technical differences that Petitioners now wish to make between "four inches" and "four column inches" the Agency is unable to conclude that the finding is in error. In order to do that, the Agency must determine, from a review of the entire record, that there is no competent, substantial evidence to sustain the finding. Based on the record, the finding is not clearly erroneous.

   
   

   PETITIONERS' EXCEPTION #7 is DENIED.

   
   

   Exception #8. Petitioners take exception to the following in Finding of Fact #8, stating that it contains statements of fact not in evidence:

   
   

   Because the Neighbors section was not published on Saturdays, but rather only on Thursdays and Sundays, the City opted to publish the notice on Sunday, January 16, 1994, or just nine days before the hearing. This was necessary since the item was deferred at the January 11 hearing, and the City presumably was unable to meet the deadline for having an ad published only two days later in the Thursday, January 13, 1994 edition of Neighbors. Even so, petitioners were unable to show any prejudice by virtue of the City failing to meet the ten-day notice requirement.

   
   

   Further, Petitioners urge that the last sentence of Finding of Fact #8, which is the last sentence enumerated in the above quotation, should be stricken as "unfair comment."

   
   

   The Hearing Officer is entitled to draw permissible inferences from the evidence presented. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). The inferences drawn by the Hearing Officer in the subject finding of fact were permissible, including the finding that Petitioners were unable to show prejudice.

   
   

   PETITIONERS' EXCEPTION #8 is DENIED.

   
   

   Exception #9. Petitioners take exception to Finding of Fact #9, in which the Hearing Officer concludes that the public hearing notice on the compliance amendment complied with the requirements of section 163.3184(15), Florida Statutes. The Hearing Officer concludes that section 163.3184(16), Florida Statutes, requires that the City hold only one advertised public hearing on the compliance amendment at the adoption stage. The City held two such hearings, as required in its charter, but gave notice for both hearings in the same advertisement. As part of his findings, the Hearing Officer states:

   
   

   Contrary to petitioners' assertion, the City complied with the notice requirements for both hearings. Assuming arguendo that the

   statutory notice requirements were not strictly met, petitioners failed to demonstrate that they were prejudiced by such an error.

   
   

   Not only do Petitioners assert that the statutory requirements were not met in the City's notice, they state that the City's actions were "to the great prejudice of the Petitioners and other unknown affected persons."

   
   

   The City was required to hold only one advertised public hearing on a compliance amendment at the adoption stage. Section 163.3184(16)(d), Florida Statutes. In this case, the City of Hialeah held two hearings -- one on March

   22 and one on April 12, 1994 -- both of which were noticed in the same advertisement on March 17, 1994. The first of the meetings was held 5 days following notice; the statute requires the meeting to be held "approximately 5 days after the day" that the notice is published. It does not follow that, simply because the City of Hialeah held two hearings, rather than one as is required by law, that it failed to meet the notice requirements of the law.

   
   

   Additionally, it was the prerogative of the Hearing Officer to determine that the Petitioners suffered no prejudice even if, arguably the statutory notice requirements were not met. Indeed, the record indicates that the Petitioners attended both hearings (TR 56, 64, and 78). The Petitioners also note in this exception that they attended the April 12, 1994 hearing, which is the one that Petitioners assert was noticed inadequately. Further, in testimony, Petitioner Dana L. Clay testified that she understood from the advertisement that there would be two hearings (TR 56). Defects in notice requirements may be waived by knowledge of and attendance and participation in the subject proceedings. Schumacher v. Town of Jupiter, 19 Fla. L. Weekly D1779 (Fla. 4th DCA, August 24, 1994).

   
   

   PETITIONERS' EXCEPTION #9 is DENIED.

   
   

   Exception #10. Petitioners take exception to Finding of Fact #10. In that finding, the Hearing Officer finds that the cumulative notice that the amendments were in compliance were sufficient to inform the public of the action being taken. The Hearing Officer also finds:

   
   

   The DCA concedes that in the notice, however, it cited rule 9J-11.012(8) as the provision dealing with the contents of a petition to challenge the amendments found to be in compliance when in fact the correct citation should have been rule 9J-11.012(7). There is no section (8) in the rule. The notice also cited former rule 221-6.010 as the rule dealing with intervention when in fact that rule has been renumbered as rule 60Q-2.010.

   Even so, petitioners were unable to show how they were prejudiced by these minor errors, especially since they knew the nature of the action being proposed by the DCA, and they timely filed their petition for hearing to challenge the amendment.

   
   

   In this exception, the Petitioners focus on others who may have wished to challenge the action of the Department of Community Affairs:

   There is a total disregard and concern by DCA for other affected persons other than Petitioners, who might have been extremely interested in filing a challenge to the

   broad action of DCA in approving land use changes in Hialeah that increased commercial land use in Section 28 by several hundred percent but were thrown off the track by the two serious errors of citing two important rules of "how to file a challenge."

   
   

   Petitioners go on to state:

   
   

   During the filing of Petitioners' challenge, DCA has corrected its Notice of Intent published in Dade County which was the right thing to do. But it doesn't help an unknown number of affected persons that would have had a chance like Petitioners to be heard but went down the wrong procedural streets of looking for nonexistent Rule 9J-11.012(8) and Rule 221-6.010, F.A.C. while the 21-day deadline clock wound down to zero. A filing on the 22nd day or on June 24, 1994 would

   have been null and void by the measure of one day.

   
   

   Petitioners have presented no evidence that others similarly situated were prejudiced by the errors in the Department's notice of intent. Moreover, it would not be within their prerogative to demonstrate same, since section 120.57, Florida Statutes, applies to proceedings in which "the substantial interests of a party" are determined by an agency. Petitioners do not -- and cannot -- demonstrate an "injury in fact" to unknown, unidentified persons who are not parties to the proceeding.

   
   

   PETITIONERS' EXCEPTION #10 is DENIED.

   
   

   Exception #11. Petitioners take exception to Finding of Fact #11. In this finding of fact, the Hearing Officer explains that the Department publishes its notices of intent in the same local newspaper that the local government uses for its publication. The finding of fact also specifies that the Department saves several thousand dollars by publishing in the Neighbors section of The Miami Herald. Finally, the Hearing Officer notes that the Department does not include in its advertisement a map showing the location of the land use changes being proposed, because the local advertisements have already included a map. The purpose of the DCA notice, the Hearing Officer finds, is to advise the public which ordinances are in or are out of compliance.

   
   

   Petitioners' objection is that the Hearing Officer should have found the Department's policy of "allowing the local government to choose the local newspaper to advertise" its notices constitutes an unlawful delegation of statutory authority granted exclusively to the Department. In the proceeding before the Division of Administrative Hearings, Petitioners did not allege or demonstrate that the Department's policy in using the same newspaper as the local government constitutes an invalid exercise of delegated legislative authority. The function of the Agency in this proceeding is to evaluate the

   record and findings below. Moreover, the finding is supported by competent, substantial evidence (TR 203), and must therefore be affirmed.

   
   

   Further, Petitioners urge that the Hearing Officer should have found the costs of publication irrelevant in justifying publication in the Neighbors section of The Miami Herald. The statement is not material to the determination as to whether notice published in the Neighbors section of The Miami Herald complies with the law. That having been said, however, Petitioners do not assert that the finding is not supported by competent, substantial evidence.

   
   

   Lastly, the Petitioners urge that the lack of a map in the Department's notice of intent constitutes a violation of subsection 163.3184(8)(b), Florida statutes, and that the notice given is insufficient to inform the public of the action taken. Subsection 163.3184(8)(b), Florida statutes, provides, in part:

   
   

   A notice of intent shall be issued by publication of notice in the manner required by paragraph (15)(c) and by mailing a copy to the local government and to persons who request notice. Notwithstanding the content requirements of paragraph (15)(c), the content of the notice shall be sufficient to inform the public of the action taken. [Emphasis added.)

   
   

   As the state land planning agency and the Agency of final jurisdiction in this proceeding, it is the responsibility of the Department of Community Affairs to interpret the operable statute. Public Employees Relations Commission v.

   Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985). In fulfilling this duty, the Agency determines that it is legally sufficient, as the Hearing Officer found, for the Department's notice of intent not to include a map when local government advertisements have already included a map. The notice by the Department of Community Affairs is for the purpose of advising the public as to which ordinances are in compliance or not in compliance, as the Hearing Officer found.

   
   

   PETITIONERS' EXCEPTION #11 is DENIED.

   
   

   Exception #12. Petitioners take exception to Finding of Fact #12. The finding of fact reads, in its entirety:

   
   

   In the absence of any showing of prejudice, and in view of petitioners' failure to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the law, the cited procedural errors are insufficient to support a finding that amendment 94R-1 is not in compliance.

   
   

   Petitioners urge that the finding of fact confuses the issue of compliance "in a restrictive planning sense" in contrast to the "more fundamental question of whether jurisdiction of the subject matter" is properly laid, given the alleged notice defects. Notice defects in comprehensive planning cases of the nature presented in this case are matters relating to compliance and are not jurisdictional. The Caliente Partnership v. Johnston, 604 So.2d 886 (Fla. 2d

   DCA 1992); Department of Community Affairs and Dr. Florentin Maurrassee v. Metro Dade County, DOAH Case No. 89-564GM (DOAH, Order dated May 5, 1989); Joyce Wilson et al. v. City of Cocoa and Department of Community Affairs, ER FALR

   `91:142, DOAH Case Nos. 90-4821GM, 90-5822GM, 90-4824GM, and 90-4825GM

   (Department of Community Affairs, Final Order dated September 11, 1991; DOAH, Recommended Order dated August 8, 1991). The alleged procedural defects are insufficient to divest the tribunal of subject matter jurisdiction.

   
   

   PETITIONERS' EXCEPTION #12 is DENIED.

   
   

   Exception #13. Petitioners take exception to Finding of Fact #13. In that finding, in part, the Hearing Officer states, "Petitioners have not specifically pled or shown how amendment 94R-1 adversely affects their property." In this exception, Petitioners state, in its entirety:

   
   

   Petitioners take exception to Findings [sic] of Fact #13 in that the record

   indicates that 94R-1 increases the commercial land use in Section 28 from 5 to 37 acres in one fell swoop and the newly designated commercial land is no more deserving than Petitioners [sic] land for such designation, Petitioners are adversely affected. This is especially true when the City and DCA find that there will be no more commercial land use designated until the year 2000.

   
   

   These assertions are insufficient to overturn the finding of fact of the Hearing Officer. Petitioners merely argue a different inference from the evidence than the inference that the Hearing Officer made.

   
   

   If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred.

   
   

   Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). The Hearing Officer having thus made a permissible inference from the evidence presented, the Agency is not free to grant the exception.

   
   

   PETITIONERS' EXCEPTION #13 is DENIED.

   
   

   Exception #14. In this exception, Petitioners take issue with Finding of Fact #14. In that finding, the Hearing Officer determines that chapter 94-338, Laws of Florida, which creates a multijurisdictional tourism, sports, and entertainment special district, commonly known as "Blockbuster Park," is irrelevant to the proceeding. The Hearing Officer made the determination because there is no mechanism to consider multijurisdictional impacts in the local planning process, the special act did not become law until after the subject amendment was completed, and the special act itself does not authorize a development.

   Petitioners urge the exception in that the Department of Community Affairs and the City of Hialeah "had early notice that it [the special act) was very likely to become law" and therefore constituted changed circumstances to justify reconsideration of the stipulated Settlement Agreement.

   
   

   To the contrary, there is ample support in the record for the findings of the Hearing Officer with respect to the special act (TR 83-89). Given the competent, substantial evidence to support the findings of fact, the Hearing Officer made reasonable inferences from the evidence and ruled appropriately that the special act was irrelevant to the issues in this proceeding. The Agency is not free to overturn the finding in those circumstances. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

   
   

   PETITIONERS' EXCEPTION #14 is DENIED.

   
   

   Exception #15. In Finding of Fact #15, to which Petitioners take exception, the Hearing Officer considers the contention that the City of Hialeah and the Department of Community Affairs failed to take into account a six-lane connector road. The Hearing Officer finds that the connector road is a limited access regional road under the control of Dade County and not the City of Hialeah. The Hearing Officer finds that there is no access to the connector from properties which front on the road, and local access will be limited to three major road intersections. The Hearing Officer finds, in Finding of Fact #15, that the City and the Department gave adequate planning consideration to the connector.

   In their exception, Petitioners state: [The] DCA and Hialeah admit that the

   Petitioners [sic] two parcels lie at two of

   the three major transportation nodes but contradict themselves when they find poor and/or limited access to the 4-lane I-75 Connector Road as a negative factor rather than a positive factor in whether Petitioners [sic) two parcels would lend themselves to a commercial land use.

   [Emphasis in original.)

   
   

   There is competent, substantial evidence of record to support the finding (TR 178-180).

   
   

   PETITIONERS' EXCEPTION #15 is DENIED.

   
   

   Exception #16. In Finding of Fact #16 -- to which Petitioners take exception -- the Hearing Officer deals with the contention of the Petitioners at hearing that certain land was improperly redesignated from single-family residential to

   multi-family and commercial use. Petitioners, according to the finding, complained that this was inappropriate since the land is close to a school but does not lie near a major intersection. The Hearing Officer finds, however, that the redesignation is appropriate since the land is located at an intersection and lies across the street from an existing five-acre commercial tract.

   
   

   In their exception, Petitioners refer to testimony of Mr. Armando Guerra, the owner of the 10-acre tract located from the elementary school. Petitioners assert in the exception that the tract

   was going to be a large Sedano's super food market opened 24 hours, seven days a week, indicates that it raises a serious public safety issue with the hundreds of surrounding single family homes.

   
   

   notwithstanding Dr. Guerra's testimony and the inferences that Petitioners draw therefrom, there is competent, substantial evidence of record to support the finding of the Hearing Officer (TR 191-195).

   
   

   PETITIONERS' EXCEPTION #16 is DENIED.

   
   

   Exceptions #17 - #21. In these exceptions, Petitioners take exception to Finding of Fact #17, and Conclusions of Law #18-21. In the exceptions, Petitioners assert that the Division of Administrative Hearings lacked subject matter jurisdiction due to procedural defects in various notices. The issue of subject matter jurisdiction has been considered and disposed of in the ruling on Exception #12, supra. The questions are those of compliance, not jurisdiction.

   
   

   PETITIONERS' EXCEPTIONS #17 - #21 are DENIED.

   
   

   Exception #22. Petitioners take exception to Conclusion of Law #22 wherein the Hearing Officer finds that the alleged procedural errors raised by the Petitioners are not jurisdictional in nature. Rather, the Hearing Officer finds, they are to be considered in determining whether the plan amendment as a whole is in compliance.

   
   

   The Petitioners take the position, in this exception, that the procedural errors alleged are jurisdictional and cannot be waived. According to the Petitioners, "The Hearing Officer is mixing planning uses with a more fundamental issuer [sic] of whether jurisdiction of the subject matter was invoked by DCA and Hialeah. These are not `minor errors'."

   
   

   This issue is considered and disposed of in the ruling on Exception #12, above. The procedural defects of which Petitioners complain are matters of compliance, rather than jurisdiction. Further, Petitioners participated throughout the proceeding which, as the Hearing Officer notes, makes it much more difficult to show prejudice, as required. See Schumacher v. Town of Jupiter, 19 Fla. L. Weekly D1779 (Fla. 4th DCA, August 24, 1994).

   
   

   PETITIONERS' EXCEPTION #22 is DENIED.

   
   

   Exception #23. Petitioners take exception to Conclusion of Law #23. They assert that it is jurisdictional that the City of Hialeah published its public hearing notice to adopt its compliance agreement one day later than required by law. The Hearing Officer concludes that there was not evidence that the Petitioners suffered prejudice as a result of its "minor error." The Recommended Order further concludes that the Petitioners have failed to demonstrate -- to the exclusion of fair debate -- that the plan amendment "as a whole is incompatible with, does nor further or take action in the direction of realizing, the goals of the Act."

   
   

   The jurisdictional issue is disposed of in the ruling on Exception #12, supra. The Hearing Officer determined that Petitioners had suffered no prejudice as a result of procedural defects -- some actual, some assumed for the purposes of argument -- in the process.

   The Hearing Officer correctly concludes that Petitioners bear the burden of demonstrating, to the exclusion of fair debate that -- when viewing the unsatisfied criterion with the plan amendment as a whole -- that the plan amendment is not compatible with, does not further, or does not take action in the direction of realizing, the goals and policies of the Local Government Comprehensive Planning and Land development Regulation Act, Part II of chapter 163, Florida statutes, and rules promulgated thereunder. B & H Travel Corporation v. Department of Community Affairs, 602 so.2d 1362 (Fla. 1st DCA 1992). The Hearing Officer properly concluded that the Petitioners had not borne their burden in this regard. For the reasons noted in disposing of the exceptions filed by Petitioners herein, there is competent, substantial evidence for the Hearing Officer's conclusion, which is based upon factual evidence.

   That being the case, the Agency is not authorized under the Administrative Procedure Act to overturn the Hearing Officer's conclusion. Section 120.57(1), Florida statutes.

   
   

   PETITIONERS' EXCEPTION #23 is DENIED.

   
   

   Exception #24. Petitioners take exception to Conclusion of Law #24 by asserting that the adoption ordinance, 94-47, is a nullity because the City of Hialeah did not properly advertise its second adoption meeting. Conclusion of Law #24 reads as follows:

   
   

   The contention that the City failed to properly advertise its adoption stage hearings on March 22 and April 12, 1994, must likewise fail. This is because the City complied with Subsections 163.3184(15)(b)2. and 163.3184(16)(d), Florida Statutes, which require that (a) the adoption hearing be held on a weekday approximately 5 days after the day that the second advertisement is published," and (b) only a single hearing be held for the adoption of a compliance amendment. Since the evidence shows that the first adoption stage hearing occurred on a weekday approximately five days after the advertisement was published on March 17, 1994, and the second hearing occurred some three weeks later pursuant to the same advertisement, the requirements of the statutes were substantially satisfied.

   Similarly, the undersigned has rejected the contention that the advertisement was flawed because the geographic map contained therein was blurry or illegible. This is because petitioners acknowledge that they were on notice as to the changes being proposed.

   
   

   This issue is fully dealt with in the Agency's disposition of Petitioner's Exception #9, supra. For the reasons expressed in that ruling, this exception must fail.

   
   

   PETITIONERS' EXCEPTION #24 is DENIED.

   
   

   Exception #25. Petitioners take exception to Conclusion of Law #25. In this conclusion of law, the issue is whether the notice of intent of the Department

   of Community Affairs was defective so as to be not in compliance with applicable statutory law. The Hearing Officer finds that "the overriding legislative concern is that `the content of the notice . be sufficient to inform the public of the action taken,'" citing section 163.3184(8)(b), Florida Statutes. In disposing of the issue, the Hearing Officer continues:

   
   

   The established facts herein support a conclusion that this concern was satisfied. The fact that the notice contained two erroneous rule citations and lacked a geographic map does not alter this conclusion. This is because petitioners have failed to demonstrate prejudice because of these minor shortcomings, and they have not claimed nor proven that they were misled, confused, or otherwise deprived of their right to fully participate in this proceeding.

   
   

   The conclusion of law to which exception is taken is correct. The Department's advertisement complied with the requirements of section 163.3184(8)(b), Florida statutes (see DCA Exhibit #4). The Petitioners were not prejudiced; they attended the adoption hearing and timely filed their petition, which gave rise to the subject proceeding (TR 64-66).

   
   

   PETITIONERS' EXCEPTION #25 is DENIED.

   
   

   Exception #26. In Conclusion of Law #26 -- to which Petitioners take this exception -- the Hearing Officer determines that the publication of advertisements in the Neighbors section of The Miami Herald satisfies the requirement of subsection 163.3184(15)(c), Florida statutes. That subsection requires that the notice be "published in a newspaper of general paid circulation in the local government's jurisdiction published at least 5 days per week." Petitioners rely on Benson v. City of Miami Beach, 591 So.2d 942 (Fla. 3d DCA 1991) as support for its argument that a notice published in the Neighbors section was defective since it was not published county-wide, as was then required under the noted subsection of the Florida statutes.

   
   

   For the reasons iterated in disposing of Petitioners' Exception #6, above, Petitioners' reliance on Benson is misplaced, and the publication in the Neighbors section of The Miami Herald complies with statutory requirements.

   
   

   PETITIONERS' EXCEPTION #26 is DENIED.

   
   

   Exception #27. Petitioners take exception to Conclusion of Law #27. They acknowledge that they raise for the first time in their proposed recommended order that the advertisements for the notices of intent to find not in compliance plan amendments 91-1, 91-2, and 92-1 were not in conformance to applicable statutory law. The Hearing Officer concludes, in this regard:

   
   

   Because petitioners were not parties to those proceedings, and Case Nos. 91-6340GM, 92-3113GM and 92-7517GM have now been closed, they have waived their right to

   challenge the notices. Even if such waiver had not occurred, in the absence of any showing of prejudice, their contention must fail.

   
   

   As to this conclusion of law, Petitioners assert, in this exception:

   
   

   Although Petitioners were not parties to these proceedings, they have standing to raise the issue of lack of jurisdiction of the subject matter at this time when the matter is on "appeal."

   
   

   Petitioners did not participate in the proceedings which are the subject of this exception. The procedural issues of which they now complain were not jurisdictional, for the reasons enumerated in the ruling herein on Exception #12, supra. Moreover, Petitioners presented no evidence in this proceeding that the notices -- directed to the proceedings to which exception is taken -- were defective. The Petitioners waived their right to challenge the notices.

   Dickerson Inc. v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981).

   
   

   PETITIONERS' EXCEPTION #27 is DENIED.

   
   

   Exception #28. Petitioners take exception to Conclusions of Law #28 as being "totally immaterial and irrelevant" given the asserted lack of subject matter jurisdiction. In this conclusion of law, the Hearing Officer finds:

   
   

   As to the substantive issues raised in the petition, the more credible and persuasive evidence supports a conclusion that the plan amendments and remedial amendment are supported by adequate data and analysis, are consistent with other provisions of the law and applicable agency rules, and are therefore in compliance. Even when the unsatisfied, albeit minor, procedural criteria noted above are taken into account, when viewing the plan amendment as a whole, the same conclusion must be reached.

   Therefore, it is concluded that petitioners have failed to prove to the exclusion of fair debate that the plan amendment is not in compliance.

   
   

   The assertion which supports this exception, i.e., that there is no subject matter jurisdiction, is considered and disposed of in the ruling on Exception #12, supra. It is for the Hearing Officer to consider and make conclusions with respect to compliance. For the reasons iterated in the ruling on Exception #23, above, this exception likewise must fail.

   
   

   PETITIONERS' EXCEPTION #28 is DENIED.

   
   

   Exception #29. Petitioners take exception to the denial of the Petitioners' ore tenus motion to remand the proceeding to the agency. The motion is directed to the issue of alleged defects in various notices which are the subject of Petitioners' principal contentions in this proceeding, including a number of the Petitioners' exceptions which are ruled upon herein. The denial of the

   Petitioners' motion was correct, given the conclusions and recommendations of the Hearing Officer as to the defects in various notices that Petitioners assert.

   
   

   PETITIONERS' EXCEPTION #29 is DENIED.

   
   

   Exception #30. Petitioners take exception to the recommendation of the Hearing Officer that the Department of Community Affairs enter a final order determining that the subject comprehensive plan amendment of the City of Hialeah is in compliance.

   
   

   The recommendation is the only logical recommendation that can stem from the Hearing Officer's permissible findings and conclusions from the evidence presented in this proceeding.

   
   

   PETITIONERS' EXCEPTION #30 is DENIED.

   
   

2. PETITIONERS' REOUEST FOR ORAL ARGUMENT

In their Memorandum in Support of Prayer for Oral Argument and their supplemental Memorandum in Support of Prayer for Oral Argument, Petitioners raise some issues -- and seek oral argument on those issues -- that have been determined of record by the Hearing Officer, as well as other issues that have not been determined of record by the Hearing Officer.

The issues that have been determined can be evaluated adequately by resort to the record in this case, and oral argument is not therefore necessary and would not be beneficial to the final determination of this cause. The issues that have not been determined of record cannot be considered by the Agency in this proceeding (section 120.57(1), Florida statutes), and oral argument therefore would not be appropriate to the final determination of this cause.

PETITIONERS' REQUEST FOR ORAL ARGUMENT is DENIED.

WHEREFORE, the Department of Community Affairs adopts the Recommended Order of the Hearing Officer, except as modified herein, and issues this Final Order determining that the City of Hialeah comprehensive plan amendment that is the subject of this proceeding is in compliance.

NOTICE OF RIGHTS

Parties to this order are hereby advised of their right to seek judicial review of this Final Order pursuant to Section 120.68, Florida statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Rhyne Building, 2740 Centerview Drive, Tallahassee, Florida 32399- 2100, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. A Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida statutes.

DONE and ORDERED this 28th day of November, 1994, in Tallahassee, Florida.

Linda Loomis Shelley Secretary

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

COPIES FURNISHED:

Donald R. Alexander Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Mr. Edmond J. Gong Ms. Dana L. Clay

6161 Blue Lagoon Drive, suite 370

Miami, Florida 33126

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

Tallahassee, Florida 32399-2199

Terrell K. Arline, Esquire Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2199

William M. Grodnick, Esquire

501 Palm Avenue, 4th Floor Hialeah, Florida 33010

Docket for Case No: 94-003506GM

Orders for Case No: 94-003506GM