STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICKY BISS, )

)

Petitioner, )

)

vs. ) Case No. 99-2598GM

)

CITY OF HALLANDALE; OCEAN ) MARINE YACHT CLUB, INC.; and ) SECURITY MANAGEMENT CORPORATION, )

)

Respondents, )

)

and )

)

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Intervenor. )

)

RECOMMENDED ORDER

A formal hearing was held in this case before

Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on August 25 and 26, 1999, in Hallandale, Florida.

APPEARANCES

For Petitioner: Kent Harrison Robbins, Esquire

1224 Washington Avenue Miami Beach, Florida 33139

For Respondent, City of Hallandale:

Richard Kane, City Attorney City of Hallandale

400 South Federal Highway Hallandale, Florida 33009

For Respondents, Ocean Marine Yacht Club, Inc.; and Security Management Corporation:

Clifford R. Steele, Esquire John C. Hanson, II, Esquire Steele & Hanson, P.A. Museum Tower, Penthouse

150 West Flagler Street Miami, Florida 33130

and

Barbara Hall, Esquire Greenberg, Taurig, et al

515 East Las Olas Boulevard Suite 1500

Fort Lauderdale, Florida 33301

For Intervenor: Karen A.Brodeen, Assistant General Counsel Office of the General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUE

The issue in this case is whether an amendment to the City of Hallandale's comprehensive plan adopted in Ordinance No.

1999-12 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

On or about June 1, 1999, the City of Hallandale adopted an amendment to the Future Land Use Map of its Comprehensive Plan pursuant to Chapter 163, Florida Statutes. The amendment was transmitted to the Department of Community Affairs on June 21, 1999. The amendment was determined by the Department of Community Affairs to be a small scale amendment exempt from

review by it pursuant to Section 163.3187(1)(b), Florida Statutes.

On June 30, 1999, Mickey Biss filed a Petition for a Hearing to Challenge Compliance of a Small Scale Development with the Division of Administrative Hearings. The Petition was designated Case No. 99-2598GM by the Division of Administrative Hearings and was assigned to the undersigned.

On August 6, 1999, an Order was entered granting the Department of Community Affairs leave to intervene.

At the final hearing Petitioner testified on his own behalf and presented the testimony of Jud Kurlancheek. Petitioner also offered 12 exhibits. Petitioner's Exhibit Nos. 1 through 11 were accepted into evidence. Petitioner's Exhibit No. 11 was accepted only to the extent ultimately determined to be rebuttal.

Petitioner's Exhibit No. 12 was rejected.

Respondent, City of Hallandale, presented the testimony of Lorenzo Aghemo, the Director of Growth Management of the City of Hallandale. The City of Hallandale offered two exhibits for identification. City Exhibit No. 1 was accepted into evidence. City Exhibit No. 2 was withdrawn.

Respondents, Ocean Marine Yacht Club, Inc. and Security Management Corporation, offered testimony from Mr. Aghemo. Ocean Marine Yacht Club, Inc. and Security Management Corporation offered seven exhibits for identification. Ocean Marine Exhibit Nos. 2 and 5 were accepted into evidence. Official Recognition

was taken of Ocean Marine Exhibit No. 4. Ocean Marine Exhibit Nos. 1, 3, and 6 were not offered.

Intervenor, the Department of Community Affairs, called no witnesses and offered no exhibits.

At the close of the final hearing of these cases, Ocean Marine Yacht Club, Inc. and Security Management Corporation indicated their intent to order a transcript of the final hearing. The parties were, therefore, ordered to file their proposed recommended orders within ten days after the transcript was filed.

On September 2, 1999, Ocean Marine Yacht Club, Inc. and Security Management Corporation informed the undersigned and the parties that no transcript would be filed. On September 7, 1999, an Order Establishing Date for Filing Proposed Orders was entered. The parties were ordered to file proposed orders on or before September 17, 1999.

On September 10, 1999, Petitioner filed Petitioner's Motion for Extension of Time to Obtain Transcript and File Proposed Recommended Findings of Fact and Conclusions of Law. Petitioner represented his intent to order a transcript of the final hearing and requested that the parties be given ten days from the date the transcript was filed. Ocean Marine Yacht Club, Inc. and Security Management Corporation filed a response in opposition to the motion. The parties were informed by telephone that, if Petitioner ordered a transcript from the official court reporter,

proposed orders would be due within ten days after the transcript was filed.

On September 15, 1999, Petitioner filed Petitioner's Notice of Ordering Transcript. On September 17, 1999, the City of Hallandale filed City's Objection to Time Extension. The Objection was overruled by an Order entered October 7, 1999.

On September 29, 1999, the City of Hallandale filed City's Motion to Dismiss and Motion for Sanctions. The City of Hallandale argued that Petitioner had not yet ordered a transcript of the final hearing and, therefore, his Petition should be dismissed. Petitioner filed a response to the Motion. On October 7, 1999, an Order Denying City's Motion to Dismiss and Motion for Sanctions was entered.

The filing of the transcript of the final hearing with the Division of Administrative Hearings was completed on October 25, 1999. Proposed orders were, therefore, required to be filed on or before November 1, 1999. Separate Proposed Recommended Orders were filed by the City of Hallandale; Ocean Marine Yacht Club, Inc. and Security Management Corporation; and the Department of Community Affairs. The Proposed Recommended Orders have been fully considered in preparing this Recommended Order. Petitioner did not file a proposed order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, Mickey Biss, is an individual who resides in Miami, Dade County, Florida.

   2. Respondent, City of Hallandale (hereinafter referred to as the "City"), is a municipal corporation located within Broward County, Florida. The City is a political subdivision of the State of Florida.

   3. Respondents, Ocean Marine Yacht Club, Inc. and Security Management Corporation (hereinafter collectively referred to as "Ocean Marine"), are corporations organized under the laws of Florida and Maryland, respectively.

   4. Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act").

2. Standing.

   
   

   1. Mr. Biss owns a condominium, unit No. 2109, located at 2030 South Ocean Drive, Hallandale, Broward County, Florida. Mr. Biss' parents reside in the condominium unit.

   2. Mr. Biss made oral and written comments to the City during the adoption of the amendment at issue in this case.

   3. Ocean Marine and Security Management own parcels of property located at 1935 and 1945 South Ocean Drive, Hallandale, Broward County, Florida (hereinafter referred to as the "Subject Property"). The Subject Property is the subject of the plan amendment at issue in this proceeding.

   4. All of the parties proved that they are "affected persons" as those terms are defined in Section 163.3184(1)(a), Florida Statutes. All of the Parties have standing to participate in this proceeding.

3. The City and Its Comprehensive Plan. General

   1. The City is located in Broward County, Florida. Broward County is a charter county with county-wide powers over land use planning.

   2. The City has adopted the City of Hallandale Comprehensive Plan (hereinafter referred to as the "City's Plan"). The City's Plan has been determined to be

      "in compliance" as those terms are defined in the Act.

      
      

   3. The City's Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE") and Future Land Use Maps (hereinafter referred to as the "FLUM"), a Coastal Management Element, a Capital Improvements Element, and other elements required by the Act.

   4. Among the land use categories allowed pursuant to the FLUE are residential "High Density" and residential "High

      Density-2." Residential property designated High Density is subject to a "maximum density of twenty-five (25) dwelling units per net acre."

   5. The residential High Density-2 land use category was created by an amendment to the City's Plan adopted by the City on February 5, 1998, through Ordinance No. 1998-3. Residential property designated High Density-2 is subject to a maximum density of 50 dwelling units per net acre. This new land use category was also added to the FLUM. The amendment to the City's Plan to add High Density-2 as a land use category was found to be "in compliance" by the Department. It was also found to be consistent with the Broward County Comprehensive Plan.

   6. The High Density-2 land use category is subject to the following limitation:

      Dwelling units and accessory structures subject to a maximum density of fifty (50) dwelling units per net acre, provided however that any density over 25 dwelling units per net ace may only be permitted by the City Commission on site specific properties by assignment of Flexibility Units in accordance with the Flexibility Rules of the Administrative Rules Document, Broward County Land Use Plan.

   7. The High Density-2 land use category of the City's Plan is consistent with the Broward County Comprehensive Plan, which contains a "High (50) Residential" land use category allowing up to 50 dwelling units per acre.

      The City's Urban Infill Area and Transportation Concurrency Exception Areas

      
      

   8. The FLUE of the City's Plan establishes an Urban Infill Area in the City. The Urban Infill Area is delineated on the FLUM. The following Objective and Policies concerning the Urban Infill Area are included in the City's Plan:

      OBJECTIVE 1.17: Establish criteria which encourage development of urban infill and urban redevelopment area(s) to promote economic development, increase housing opportunities, and maximize the use of existing public facilities and services.

      
      

      POLICY 1.17.1: Increase economic development and employment opportunities within urban infill and urban redevelopment area(s).

      
      

      POLICY 1.17.2: Adequate housing opportunities necessary to accommodate all segments of present and future residents shall be provided within urban infill and urban redevelopment area(s).

      
      

   9. The City's Plan also designates Urban Infill Areas as Transportation Concurrency Exception Areas. FLUE Policy 1.17.4 of the City's Plan provides the following:

      Designated urban infill and urban redevelopment area(s) shall be excepted from transportation facilities concurrency requirements consistent with Chapter 163, Florida Statutes; however, application will be subject to providing a traffic analysis consistent with the Traffic Circulation Element and potential improvements to minimize impacts.

      Coastal High Hazard Area

      
      

   10. The City's Plan includes a Coastal Management Element addressing, among other things, hurricane evacuation from the

       City's coastal high-hazard area and participation in the development of evacuation plans by Broward County.

   11. The FLUE of the City's Plan also includes Policies providing for protection of the City's coastal high-hazard area.

   12. The City's Plan, prior to the adoption of the Challenged Amendment, allowed the designation of property located anywhere in the City, including the coastal high-hazard area, as High Density-2. This fact must be considered in interpreting the provisions of the Coastal Management Element and the FLUE of the City's Plan dealing with development within the coastal high hazard area.

4. Flexibility Units.

   
   

   1. The Broward County Comprehensive Plan (hereinafter referred to as the "County's Plan") includes an Administrative Rules Document. The Administrative Rules Document was adopted to assist local governments, among others, in interpreting the County's Plan.

   2. The FLUE of the City's Plan adopts by reference the Administrative Rules Document as they relate to flexibility units.

   3. The Future Land Use Maps of the County's Plan divide Broward County into 125 geographic areas designated as "flexibility zones." The number of flexibility units available within each zone is determined by subtracting the number of dwelling units permitted within a flexibility zone by a local

      government's plan from the number of dwelling units permitted within the same flexibility zone by the County's Plan.

   4. Local governments are allowed to, within certain specified limits, rearrange land uses, including residential densities, within flexibility zones located within the local government's jurisdiction.

   5. The City is divided into two flexibility zones: Flex Zones Nos. 93 and 94.

   6. The FLUE of the City's Plan contains a table on pages 2-28 and 2-32 which sets out the number of flexibility units available in Flex Zone Nos. 93 and 94.

   7. The City's Plan allows the use of flexibility units anywhere within either Flex Zone of the City, including areas within the coastal high hazard area. A "Summary" included with the table provides, in pertinent part, that flexibility units may be "assigned to any particular site within the Flexibility Zone to allow for increased residential densities above the amount permitted under the Hallandale Land Use Plan map. . . ." The flexibility units are available for transfer without the need to amend the City's Plan.

   8. At the time that the Challenged Amendment was adopted, there were a total of 2,429 flexibility units available within Flex Zone No. 93.

5. The Subject Property.

   
   

   1. The Subject Property consists of approximately 5.75 acres of land.

   2. The parcel of the Subject Property located at 1935 Ocean Drive is vacant. The parcel of the Subject Property located at 1945 Ocean Drive is developed. The developed parcel has an 80-unit motel on it.

   3. The motel located on the Subject Property was constructed in 1956. The buildings on the Subject Property are in substantial decay.

   4. The Subject Property is surrounded on three sides by property used for high density multi-family residences. The property to the north, Chelsea Hall, has been developed at a density of 54 units per acre. The properties to the east, Malage Towers, Biltmore Mansions, Taromina Apartments, and Hemispheres Ocean, have been developed at densities of 75, 19, 45, and 117 units per acre, respectively. The property to the south, Hemispheres, has been developed at a density of 85 units per acre. Densities in the area surrounding the Subject Property averaged approximately 86 units per acre.

   5. The Subject Property lies totally within the City's Urban Infill Area. The Subject Property is, therefore, also considered to be located totally within a Transportation Concurrency Exception Area.

   6. The Subject Property also lies within the coastal high-hazard area.

   7. The Subject Property is located within the City's Flex Zone No. 93.

6. The Subject Amendment.

   
   

   1. On June 1, 1999, the City passed Ordinance No. 1999-12, amending the City's Plan by changing the FLUM land use designation for the Subject Property (hereinafter referred to as the "Challenged Amendment").

   2. The Challenged Amendment changed the land use designation of the Subject property from residential High Density to residential High Density-2.

   3. The Challenged Amendment was adopted pursuant to the procedures allowed for "small scale" development amendments set forth in Section 163.3187 of the Act. Pursuant to this provision, the City decided that it would elect to have the Department review the Challenged Amendment.

   4. The change in land use designation on the Subject Property increased the allowable development of the Subject Property from a maximum of 25 units per acre to a maximum of 50 units per acre through the use of "flexibility units."

   5. The Challenged Amendment assigns 143 flexibility units out of the 2,429 available within Flex Zone No. 93 to the Subject Property and specifically provides " . . . the applicant agrees the assignment of 143 Flexibility Units to the parcel is a

      maximum and agrees the use of density above 25 units per acre will be determined by the City Commission upon review of a future major development plan."

7. Mr. Biss' Challenge.

   
   

   1. Mr. Biss filed a Petition for Hearing to Challenge Compliance of a Small Scale Development Amendment with the Division of Administrative Hearings.

   2. Mr. Biss alleged generally that the Challenged Amendment is not "in compliance" for the following reasons:

      1. The Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act because the density of the Subject Property is more than ten units per acre and the Subject Property is not vacant;

      2. The Challenged Amendment is contrary to the State Comprehensive Plan. Chapter 187, Florida Statutes (1997). In particular, Mr. Biss alleged that the Challenged Amendment is contrary to Section 187.201(7)(b)22., Florida Statutes (1997), which requires the following:

         22. Require local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents.

         
         

      3. The Challenged Amendment, by increasing densities in the coastal high-hazard area, increases the dangers from hurricanes contrary to Coastal Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan;

      4. The Challenged Amendment degrades the level of service standard of Hallandale Beach Boulevard contrary to FLUE Element Policy 1.12.4 and Section 9.3.2.1 of the Transportation Element of the City's Plan;

      5. There is insufficient data and analysis to demonstrate that the possible additional 143 residential units in the coastal high-hazard zone will not negatively impact the City's ability to evacuate the coastal high-hazard area; and

      6. The Challenged Amendment fails to consider the impacts on public schools contrary to the County's Plan.

8. Qualification as a Small Scale Amendment.

1. The Subject Property is located within the Urban Infill Area and a Transportation Concurrency Exception Area. Therefore, the Challenged Amendment may involve a residential use with a density of more than ten units per acre and still qualify as a small scale amendment.

2. Mr. Biss failed to prove that the Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act.

   I. The State Comprehensive Plan.

   
   

3. The City has prepared plans for evacuation of coastal residents as required by Section 187.201(7)(b)22., Florida Statutes (1997).

4. Mr. Biss failed to prove that the requirements of Section 187.201(7)(b)22., Florida Statutes (1997), concerning the

   preparation of evacuation plans, apply to the Challenged Amendment.

   1. Density Increase in the High-Hazard Area; Coastal Management Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan.

      
      

5. The Coastal Element of the City's Plan includes Goals 2 and 3, and Objective 2.2 pertaining to the City's high hazard area:

   GOAL 2: The City of Hallandale Shall Protect Human Health and Safety in the Coastal Area.

   
   

   . . . .

   
   

   OBJECTIVE 2.2: The City shall direct populations away from High-Hazard Areas in concert with the established hazard mitigation strategies developed by Broward County

   
   

   . . . .

   
   

   GOAL 3: The City Shall Discourage or Limit Development in Areas Subject to Destruction by Natural Disasters.

   
   

6. The evidence failed to prove that the Challenged Amendment is inconsistent with these Goals or the Objective of the Coastal Management Element of the City's Plan. These Goals and the Objective were intended to provide broad planning guidelines and were not intended to apply specifically to a small scale amendment such as the Challenged Amendment.

7. The Goals and the Objective of the Coastal Management Element relied upon by Mr. Biss must be evaluated with other provisions of the City's Plan. In particular, those provisions

   which allow the transfer of residential dwelling unit densities through flexibility units anywhere within the City, including the coastal high-hazard area. Because of these existing provisions the Challenged Amendment does not increase densities within the coastal high-hazard area or increase the danger from hurricanes anymore than already allowed by the City's Plan.

8. Although not required by Coastal Management Element Goals 2 or 3, or Objective 2.2 of the City's Plan, even a consideration of the impact of the Challenged Amendment on actual hurricane evacuation times does not support Ms. Biss' challenge. The City's projected hurricane evacuation time for roads which would be impacted by increased density on the Subject Property are less than seven hours. The addition of up to 143 dwelling units will not significantly impact that evacuation time.

   Ongoing road improvements will even mitigate any such impacts.

   
   

9. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Coastal Management Element of the City's Plan.

10. FLUE Policy 1.9.5 of the City's Plan provides:

    
    

    POLICY 1.9.5: The City shall direct populations away from High-Hazard Areas, to the extent legally feasible, through the establishment of redevelopment regulations for High-Hazard Areas by 1998.

    
    

    The City has complied with this Policy by adopting redevelopment regulations. Mr. Biss failed to prove

    that the Challenged Amendment is inconsistent with this Policy.

11. FLUE Policy 1.9.3 of the City's Plan provides the following:

    POLICY 1.9.3: Encourage development and redevelopment in the coastal high hazard area to include hazard mitigation measures for beach and beachfront property protection to minimize loss of life and property against beach erosion.

12. This Policy has no relevance to the Challenged

    
    

    Amendment. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Policy.

13. The City's Plan does not include a Policy 2.7.2. The FLUE of the City's Plan includes a "Section 2.7.2" which describes the following "Natural Conditions Affecting Development" as part of the description of the dangers from flooding in the City:

    The danger from hurricanes can be somewhat controlled by limiting future allowable densities in high hazard areas. This subject is more fully addressed in the Coastal Management and Conservation Elements of the Comprehensive Plan.

    
    

14. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with Section 2.7.2 of the City's Plan.

    1. Impacts on Traffic.

       
       

15. FLUE Element 1.12.4 of the City's Plan establishes a level of service standard "D" for City roads.

16. Section 9.3.2.1 of the Transportation Element of the City's Plan recognizes existing traffic circulation problems

    within the City, including roads impacted by the Challenged Amendment. This Section is not, however, a goal, objective, or policy of the City's Plan.

17. Mr. Biss has argued that the Challenged Amendment degrades the level of service standard for the City on roads which may be impacted by the Challenged Amendment and further exacerbates the traffic circulation problems recognized by Section 9.3.2.1 of the Transportation Element of the City's Plan. The evidence failed to support this argument.

18. While the addition of 143 dwelling units will naturally increase traffic in the area surrounding the Subject Property, Mr. Biss failed to prove the extent of that impact. More importantly, Mr. Biss failed to prove that the impact will be so great as to be considered inconsistent with the City's Plan.

    1. Data and Analysis.

       
       

19. Mr. Biss has argued that the City did not have sufficient data and analysis to demonstrate that an additional

    143 residential units will not negatively impact the City's ability to evacuate the coastal high hazard area. Mr. Biss failed to prove this allegation.

20. Hurricane evacuation times for roads which may be impacted by the Challenged Amendment are well below acceptable hurricane evacuation time standards. An additional 143 dwelling units will not significantly impact those evacuation times.

21. Data relied upon by the City indicated that, after ongoing road improvements, hurricane evacuation times, even with the Challenged Amendment, will decrease.

22. Mr. Biss failed to prove that the City did not have adequate data and analysis to support the Challenged Amendment.

    1. Impacts on Public Schools.

    
    

23. Mr. Biss failed to prove that the Challenged Amendment did not consider the impacts on public schools contrary to the County's Plan.

24. The Challenged Amendment is not required to be consistent with County's Plan until it is reviewed for "recertification" by the Broward County Planning Council. At the time of recertification, the Challenged Amendment will likely be considered exempt from school concurrency pursuant to Policy

    13.01.10 of the County's Plan.

    
    

25. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with any provision of the City's Plan dealing with public schools.

26. Mr. Biss also failed to prove that the impact on public schools by the Challenged Amendment will be more than the addition of nine students.

27. Finally, the evidence failed to prove that the Challenged Amendment is inconsistent with Coastal Management Element Policy 3.1.1 of the City's Plan.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

28. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.569, 120.57(1), and 163.3187(3), Florida Statutes (1997).

    1. Standing.

       
       

29. Any "affected person" may participate in proceedings challenging proposed plans and plan amendments under the Act. Section 163.3187(3)(a) of the Act.

30. The terms "affected person" for purposes of Section 163.3187 of the Act are defined in Section 163.3184(1)(a) of the Act:

    1. "Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review . . . .

       Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.

31. The evidence in this case proved that Mr. Biss owns property located in the City. The evidence also proved that Mr. Biss made oral and written comments to the City during the period of time beginning with the transmittal hearings for the Challenged Amendment and ending with its adoption.

32. Mr. Biss proved that he had standing to institute and participate in this proceeding pursuant to Section 163.3187 of the Act.

33. The evidence also proved that the City, Ocean Marine, and the Department had standing to participate in this proceeding.

    1. Burden and Standard of Proof.

       
       

34. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in any proceeding before the Division of Administrative Hearings. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993); Antel v. Department of Professional Regulation,

    522 So. 2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

35. Section 163.3187(3)(a) of the Act imposes the burden of proof on the person challenging a small scale amendment to a local government's comprehensive plan. Therefore, Mr. Biss had the burden of proof in this proceeding. See Young v. Department of Community Affairs, 626 So. 2d 831 (Fla. 1993).

36. Section 163.3187(3)(a) of the Act provides the following concerning the standard of proof imposed upon Mr. Biss:

    In the proceeding, the local government's determination that the small scale development is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that

    the amendment is not in compliance with the requirements of this act. . . .

    
    

    Mr. Biss was, therefore, required to overcome the presumption that the City correctly determined the Challenged Amendment to be "in compliance" by the preponderance of the evidence.

    1. Small Scale Amendments.

       
       

37. Section 163.3187 of the Act authorizes local governments subject to the Act to adopt "small scale amendments" which are not subject to review by the Department. Section 163.3187 of the Act provides in relevant part, the following:

    (c) Any local government comprehensive plan amendments directly related to proposed small scale development activities may be approved without regard to statutory limits on the frequency of consideration of amendments to the local comprehensive plan. A small scale development amendment may be adopted only under the following conditions:

    
    

    1. The proposed amendment involves a use of 10 acres or fewer and:

    
    

    . . . .

    
    

    f. If the proposed amendment involves a residential land use, the residential land use has a density of 10 units or less per acre, except that this limitation does not apply to small scale amendments described in sub-sub-subparagraph a.(l) that are designated in the local comprehensive plan for urban infill, urban redevelopment, or downtown revitalization as defined in s. 163.3164, transportation concurrency exception areas approved pursuant to s. 163.3180(5), or regional activity centers and urban central business districts approved pursuant to s. 380.06(2)(e).

    1. The Challenged Amendment is a Small Scale Amendment.

       
       

38. The Subject Property consists of less than 5.75 acres. The Challenged Amendment, therefore, meets the requirement of Section 163.3187(1)(c)1 of the Act that a proposed amendment involve property of less than ten acres.

39. The Challenged Amendment establishes a density for Subject Property of greater than 10 units per acre. The Challenged Amendment does not, therefore, meet the requirement of Section 163.3187(1)(c)1.f. of the Act unless the Subject Property is "designated in the local comprehensive plan for urban infill, urban redevelopment, or downtown revitalization as defined in

    s. 163.3164, transportation concurrency exception areas approved pursuant to s. 163.3180(5), or regional activity centers and urban central business districts approved pursuant to

    s. 380.06(2)(e)." Mr. Biss failed to prove that the Subject Property is not located in an area that has been designated in the City's Plan as an urban infill area.

40. The term "urban infill" is defined in Section 163.3184(27) of the Act as follows:

    (27) "Urban infill" means the development of vacant parcels in otherwise built-up areas where facilities such as sewer systems, roads, schools, and recreation areas are already in place and the average residential density is at least five dwelling units per acre, the average nonresidential density is at least a floor area ratio of 1.0 and vacant, developable land does not constitute more than 10 percent of the area.

    The term "urban infill" is similarly defined in the City's Plan.

41. Mr. Biss has argued that the Subject Property is not located within an urban infill area because both parcels of the Subject Property are not vacant parcels. Mr. Biss' argument is rejected.

42. The difficulty with Mr. Biss' argument is that he has relied upon the application of the definition of "urban infill" as a noun rather than as a verb as the term is defined. As defined in Section 163.3182(27) of the Act the term "urban infill" defines the act of infilling an urban area. The definition does not specifically define an area in which urban infill may take place.

43. Based upon the definition of what constitutes the act of "urban infill," it necessarily follows that the City may designate any "built-up [area] where facilities such as sewer systems, roads, schools, and recreation areas are already in place and the average residential density is at least five dwelling units per acre, the average nonresidential density is at least a floor area ratio of 1.0 and vacant, developable land does not constitute more than 10 percent of the area" in which it wishes to allow urban infill to take place as an "urban infill area."

44. Because the Subject Property is located within an area designated pursuant to the City's Plan as an urban infill area,

    it is also considered to be located within a "transportation concurrency exception" area approved pursuant to Section 163.3180(5) of the Act.

45. Section 163.3180(5)(b) of the Act provides the following:

    (b) A local government may grant an exception from the concurrency requirement for transportation facilities if the proposed development is otherwise consistent with the adopted local government comprehensive plan and is a project that promotes public transportation or is located within an area designated in the comprehensive plan for:

    1. Urban infill development;

       
       

    2. Urban redevelopment, or

       
       

    3. Downtown revitalization.

    
    

46. The City has granted an exception for the area in which the Subject Property is located from transportation concurrency pursuant to FLUE Policy 1.17.4 of the City's Plan.

47. The Subject Property falls within an urban infill area. The Subject Property also falls within an area designated under the City's Plan as a transportation concurrency exception area approved pursuant to Section 163.3180(5) of the Act. Therefore, Mr. Biss has failed to prove that the exception to the condition of Section 163.3187(1)(c)1.f. of the Act that the property subject to a small scale amendment be designated with a density of ten units or less per acre does not apply to the Challenged Amendment.

48. The Challenged Amendment is a small scale amendment not subject to review by the Department.

    
    

    1. The Ultimate Issue: Are the Challenged Plan Amendments "In Compliance."

    
    

49. The ultimate issue in this case is whether the Challenged Amendment is "in compliance." Section 163.3187(3) of the Act.

50. The term "in compliance" is defined in Section 163.3184(1)(b) of the Act as follows:

    (b) "In compliance" means consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, with the state comprehensive plan, with the appropriate strategic regional policy plan, and with chapter 9J-5, Florida Administrative Code, where such rule is not inconsistent with chapter 163, part II.

    
    

51. A determination of whether a plan amendment is "in compliance" 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 (Fla. Admin. Comm. 1990).

52. Effective May 22, 1998, the definition of

    
    

    "in compliance" was amended to require consistency with Sections 163.3180 and 163.3245 of the Act.

53. The issues which may be considered in this proceeding are limited to those issues alleged in Mr. Biss' Petition. See Sections 120.569 and 120.57(1), Florida Statutes; Rule 60Q- 2.004(3)(d), Florida Administrative Code; and Heartland

    Environmental Council, Inc. v. Department of Community Affairs,

    
    

    96 E.R.F.A.L.R. 185 (Department of Community Affairs 1996).

    
    

54. Mr. Biss has alleged that the Challenged Amendment is not consistent with the Act because of alleged inconsistencies with provisions of the City's Plan. Mr. Biss apparently relies upon Section 163.3177 of the Act. Mr. Biss has also alleged that the Challenged Amendment is inconsistent with the State Comprehensive Plan.

55. Mr. Biss failed to cite any provision of Sections 163.3177, 163.3178, 163.3180, 163.3191, or 163.3245 of the Act, the State Comprehensive Plan, the appropriate strategic regional policy plan, or chapter 9J-5, Florida Administrative Code, with which the evidence proved the Challenged Amendment is inconsistent.

56. Mr. Biss relied upon portions of the City's Plan without considering the City's Plan as a whole. He also failed to consider the County's Plan and its impact on the Challenged Amendment.

57. Mr. Biss failed to meet his burden of proof in this proceeding.

RECOMMENDATION

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

RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the Challenged Amendment to be a small scale amendment and that it is

"in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.

DONE AND ORDERED this 19th day of November, 1999, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1999.

COPIES FURNISHED:

Kent Harrison Robbins, Esquire 1224 Washington Avenue

Miami Beach, Florida 33139

Clifford R. Steele, Esquire John C. Hanson, II, Esquire Steele & Hanson, P.A. Museum Tower, Penthouse

150 West Flagler Street Miami, Florida 33130

Barbara Hall, Esquire Greenberg, Taurig, et al

515 East Las Olas Boulevard Suite 1500

Fort Lauderdale, Florida 33301

Richard Kane, City Attorney City of Hallandale

400 South Federal Highway Hallandale, Florida 33009

Karen A. Brodeen, Assistant General Counsel Office of the General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Arnold Lanner, Mayor City of Hallandale City Hall

400 South Federal Highway Hallandale, Florida 33009

Steven M. Seibert, Secretary Department of Community Affairs Suite 100

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

Cari L. Roth, General Counsel Department of Community Affairs Suite 315

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. See Section 163.3184(9)(b), Florida Statutes (1997).

Docket for Case No: 99-002598GM

Orders for Case No: 99-002598GM