STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF HALLANDALE BEACH,
Petitioner,
vs.
BROWARD COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
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) Case No. 99-3915GM
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RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Eleanor M. Hunter, held a final hearing in the above-styled case on
March 26, 2003, in Fort Lauderdale, Florida. This Recommended Order is entered by Administrative Law Judge Richard A. Hixson, pursuant to Section 120.57(1)(a), Florida Statutes.
APPEARANCES
For Petitioner: Mark Goldstein, Esquire
City of Hallandale
400 South Federal Highway Hallandale, Florida 33009
For Respondent Broward County:
Jose R. Gonzalez, Esquire Broward County Attorney's Office
115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301
For Respondent Department of Community Affairs:
Karen A. Brodeen, Esquire Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 315
Tallahassee, Florida 32399-2100 STATEMENT OF THE ISSUE
The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
PRELIMINARY STATEMENT
On September 16, 1999, the Department of Community Affairs (DCA) forwarded two Petitions to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct the hearings. Both Petitions challenged the same ordinances amending the Broward County Comprehensive Plan, and the DCA's intent to find the ordinances "in compliance" with the Plan and Florida law. One Petition, in DOAH Case No. 99- 3915GM, was filed by the City of Hallandale Beach (Hallandale). The other Petition, in DOAH Case No. 99-3916GM, was filed by the
Ocean Marine Yacht Club, Inc., and Security Management Corporation (Ocean Marine). Hallandale's Motion to Consolidate the cases was granted on November 4, 1999, and a hearing was scheduled to commence on December 20, 1999. The Petitioners contend that Broward County Ordinance 1999-26, was not supported by adequate data, was not based on the best available data, and is inconsistent with other provisions in the Plan and with State law.
On December 9, 1999, a motion hearing was held and the City's Renewed Motion for Mediation, filed pursuant to Section 163.3189(3)(a), Florida Statutes, which allows any party to "demand informal mediation," was granted. The parties were ordered to establish a mutually convenient date during February 2000 for mediation. At the same time, Ocean Marine's
Motion to Continue, based on its counsel's illness, was granted, and the December 20, 1999, hearing date was cancelled. The case was re-scheduled for March 15, 2000.
On December 17, 1999, Petitions to Intervene in both cases, filed by the City of Fort Lauderdale (Fort Lauderdale) and the City of Miramar (Miramar) were granted. Another Petition to Intervene, filed by the Realtor Association of Greater Fort Lauderdale, was dismissed, as defective on its face, without prejudice to the filing of an amended petition. On March 7, 2000, Ocean Marine filed a Motion to Continue Final Hearing to
pursue a settlement proposal. The Motion was granted and the parties were directed to report on the status of the case by May 15, 2000. In May, the parties reported that a settlement proposal was still being negotiated and, at their request, the case was placed in abeyance with the next status report due by September 25, 2000. On that date, the Petitioners reported that the Broward County Commission had rejected the proposed settlement. Thereafter, final hearing was scheduled for
April 3, 2001.
Ocean Marine's counsel moved for another continuance, due to his scheduled surgery, and requested a suspension of some discovery proceedings. Following a motion hearing, the
April 2001 final hearing was cancelled and the case was placed in abeyance with a status report due on June 8, 2001. That report stated that "a viable settlement alternative appears to have been reached" and that 6 to 9 months were needed for review and approval of proposed amendments to county and city land use maps and comprehensive plans. The case was again placed in abeyance with a December 2001 reporting date, and an interim reporting date of October 31, 2001. The interim report indicated that settlement talks were continuing, as did the December status report. The case continued to be abated with a new status report due in March 2002. After status reports in March 2002 and July 2002, the case remained abated. After a
Broward County status report, requesting that the case be set for hearing, the July abeyance was rescinded and a final hearing was scheduled to commence on December 10, 2002. Due to the issues on the agenda for the Broward County Commission's meeting set for December 3, 2002, the hearing was re-scheduled to commence on January 28, 2003.
In March 2002, Miramar voluntarily dismissed its Petition, followed in November 2002, by the voluntary withdrawal of Fort Lauderdale.
Ocean Marine and Hallandale filed an unopposed motion for a continuance which was granted, and the final hearing scheduled for January 28, 2003, was continued. On March 4, 2003, Ocean Marine withdrew its Petition in Case No. 99-3916GM. The final hearing was re-scheduled for and held on March 26, 2003, in Fort Lauderdale, Florida.
At the final hearing, the Petitioner, presented the testimony of Henry A. Sniezek, stipulated to as an expert in land use planning with the Broward County Planning Council; Lorenzo Aghemo, stipulated to as an expert in land use planning, currently the Director of Planning for Palm Beach County, formerly the Director of Growth Management for the City of Hallandale Beach; and Robert Daniels, stipulated to as an expert in land use planning, who is the principal planner for the South Florida Regional Planning Council.
In its case in chief, Broward County also presented the testimony of Henry Sniezek and Robert Daniels. The Department called no witnesses.
The parties stipulated to the admissibility of their exhibits subject to any relevancy objection. The Petitioner offered the following exhibits into evidence:
P1. Broward County Planning Council Flexibility Rules Study dated May 23, 1996
P2. June 1, 1999 letter from Susan Tramer, Broward County Planning Council, to Arnold Lanner, Mayor, City of Hallandale
P3. January 15, 1999 Broward County Planning Council Land Use/Trafficways Committee Agenda and Item 2 attachment
P4. (Future)Broward County Land Use Plan Map Series dated April 24, 1998
P5. South Florida Regional Planning Council Memorandum dated October 6, 1997
P6. City of Hallandale Ordinance No. 1998-3
P7. August 18, 1999 letter from John Hulsey, South Florida Regional Planning Council, to John Easterling, David Plummer and Associates
The Respondents offered the following exhibits into evidence, the admissibility of which the parties stipulated to subject to any relevancy objection:
R1. Broward County Flexibility Zones Map
R2. Broward County Administrative Rules Document as amended through October 24, 2002
R3. South Florida Regional Planning Council Memorandum dated August 2, 1999
R4. Eastward Ho! Revitalizing Southeast Florida’s Urban Core July 1996, prepared by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council
R5. Broward County Land Use Plan Natural Resource Map Series: Flood Plains, Flood Prone Areas and Coastal High Hazard Areas
R6. Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida prepared by the Center for Urban Policy Research, Rutgers University for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency
R7. Florida Department of Community Affairs Memorandum dated August 16, 1999
R8. Broward County Local Mitigation Strategy adopted 1998
R9. City of Hallandale Beach Comprehensive Plan Coastal Management Element
The parties offered the following joint exhibits into evidence:
J1. Charter of Broward County, Florida, revised November 5, 2002
J4. Broward County Comprehensive Plan, 1989 Land Use Plan, November 2002 Edition
J6. June 30, 1999 letter from the Broward County Planning Council to the Department of Community Affairs and attachments including Comprehensive Plan amendments adopted by Broward County
J8. August 23, 1999 letter from the Department of Community Affairs to Broward
County Commission Chair Ilene Lieberman and attached Department of Community Affairs Notice of Intent to Find the Broward County Comprehensive Plan Amendments in Compliance
J9. Broward County Land Use Plan (Map) VII. Urban Infill, Urban Redevelopment and Downtown Revitalization Areas
J17. State Comprehensive Plan, Chapter 187, Florida Statutes
J19. South Florida Regional Planning Council Strategic Regional Policy Plan for South Florida
At hearing, the Respondents objected to the relevancy of Petitioner's Exhibit 7, the August 18, 1999, letter from
John Hulsey, South Florida Regional Planning Council, to John Easterling, David Plummer and Associates. The letter
relates to the effects of small-scale developments on evacuation clearance time on Hallandale Beach. Having reviewed the record, the Respondents' objection as to relevancy is overruled and Petitioner's Exhibit 7 is received.
The transcript of the final hearing was filed April 9, 2003. Proposed Recommended Orders, initially due on April 29, 2003, were received on May 16, 2003. As a consequence of granting the Petitioner's Unopposed Motion for Enlargement of Time to File [Proposed] Recommended Order, the parties understood and agreed to have the recommended order entered by a different administrative law judge than the one who conducted
the hearing, as authorized by Subsection 120.57(1)(a), Florida Statutes.
FINDINGS OF FACT
Parties
The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach.
The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan).
The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes.
Standing
The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999.
During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999.
The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes.
The County Charter
The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002).
With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final
authority over the approval, or recertification, of municipal land use plans and amendments.
Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section
11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances.
Flexibility Units/Reserve Units
Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County.
In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning.
The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida.
The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of
available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map.
The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners.
Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP.
"Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities
within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units.
Hallandale contains flexibility zones 93 and 94.
Review of the Operation of Flexibility Rules
In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools.
The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use.
The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report.
Coastal Densities
An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre.
Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way.
In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels.
The Hallandale Ordinance
In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units.
On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council.
The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan.
The DCA found Hallandale's HD-2 ordinance in compliance.
The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan.
The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan.
The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives.
The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process.
The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up
to only 25 dwelling units per acre is not economically advantageous.
The Proposed Amendment
The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan.
During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this
corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway.
In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County.
With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units.
Area A
This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields.
In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B
This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s
CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean.
CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre.
In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA.
Area C
This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor.
In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre.
Area D
This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of
flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required.
At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area.
Application to Hallandale
Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre.
Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan:
Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services;
Goal 13.00.00, on maximizing intergovernmental coordination and cooperation;
Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre;
Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment;
Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities.
Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes:
Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development;
Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity;
Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities.
Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions.
Evolution of the Proposed Amendment
On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres.
As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan.
Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999.
Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway.
The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on
environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative.
The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean.
The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved.
Eastward Ho!
"Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council.
Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas.
The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade
County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad.
As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County.
Area B does not lie within the Eastward Ho! boundaries.
In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA.
The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment.
In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the
U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns.
In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent.
The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and
$135.6 in sewer capital costs.
As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment.
Local Mitigation Strategy
Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes.
In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B.
In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA.
The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment.
Consistency with the Broward County Comprehensive Plan
The City contends that the Amendment is inconsistent with the following provisions of the Broward County
Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP.
Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads:
Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist.
The BCLUP does not define "urban sprawl."
The Department of Community Affairs has a rule that defines "urban sprawl" as meaning:
. . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low- intensity or low density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided....
Rule 9J-5.003(134), Florida Administrative Code.
Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements
pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered.
The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment.
Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County.
Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows:
GOAL 13.00.00
MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES.
POLICY 13.01.08
The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and
all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans.
The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08.
Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment.
Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows:
GOAL 17.00.00
DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES.
POLICY 17.02.02
Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s).
In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment.
The Amendment is not inconsistent with Policy
17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides
that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B.
Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County.
Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable.
Objective 9.07.00 reads:
Protect identified floodplains and areas subject to seasonal or periodic flooding.
The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas.
Consistency with Section 163.3177(11)(c)
The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads:
It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization.
To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan
The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code.
The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management.
The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where
negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole.
Consistency with the State Comprehensive Plan
The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives.
The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5.
Policy (16)(b)(5) reads:
Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy.
The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities.
The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities.
The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction to conduct a hearing on the subject matter of this proceeding. Sections 120.569, 120.57(1), and 163.3184(9), Florida Statutes.
Standing
Under Section 163.3184(9), Florida Statutes, only an "affected person" may file a petition to challenge a plan Amendment found by the Department to be "in compliance." The definition of "affected person" is contained in Section 163.3184(1)(a), Florida Statutes. That definition includes persons owning property within the boundaries of the local government. It also includes a requirement of having "submitted oral or written comments, recommendations, or objections to the local government" between the plan amendment's transmittal hearing and the adoption. Section 163.3184(1)(a), Florida Statutes.
The City is an "affected person" within the meaning of Section 163.3184(1)(a) and has standing to be a party in this proceeding.
Burden of Proof
The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the
issue of the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).
Section 163.3184(9), Florida Statutes, provides that if the Department issues a Notice of Intent to find the Amendment "in compliance," then the burden of proof is on the person challenging the plan amendment.
"In compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, Florida Statutes; the State Comprehensive Plan; the appropriate strategies regional policy plan; and Chapter 9J- 5, Florida Administrative Code. Section 163.3184(1)(b), Florida Statutes. Consistency with the state and regional plans is based on construing those plans as a whole. Section 163.3177(10)(a), Florida Statutes.
Because the Department initially published a Notice of Intent to find the Plan Amendment "in compliance," the Amendment must be determined to be "in compliance" if the local government’s determination of compliance is fairly debatable. Section 163.3184(9), Florida Statutes. Petitioner has the burden of demonstrating beyond fair debate that the Amendment is not "in compliance."
The term "fairly debatable" is not defined in Chapter 163, Florida Statutes, or in Chapter 9J-5, Florida Administrative Code. The fairly debatable standard under
Chapter 163 is equivalent to common law "fairly debatable" standard applicable to decisions of local governments acting in a legislative capacity. As stated in Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997):
The fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to its propriety.
Quoting from City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court stated further:
An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.
690 So. 2d at 1295. Petitioner has not demonstrated beyond fair debate that the Amendment is not "in compliance."
Section 163.3177(11)(c)
The City alleged that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads:
It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization.
Although consistency with Section 163.3177 is included within the definition of "in compliance," that
particular subsection does not create any legal criterion. As this statute simply expresses legislative intent, it is construed as not providing a substantive compliance criterion. A statement of legislative intent provides guidance to an agency, but does not create separate legal rights or duties.
Department of Health and Rehabilitative Services v. Doe, 659 So. 2d 697 (Fla. 1st DCA 1995); St. Joe Paper Co. v. Department of Community Affairs, 657 So. 2d 27 (Fla. 1st DCA 1995).
Data and Analysis
The City contends that the Amendment is not supported by adequate data and analysis as required by Section 163.3177(8), Florida Statutes; Rule 9J-11.007(1), Florida Administrative Code; and Martin County v. Department of Community Affairs, 771 So. 2d 1268 (Fla. 4th DCA 2000). With regard to data and analyses, Rule 9J-5.005(2) provides in pertinent part:
Data and Analyses Requirements.
All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Data or summaries thereof shall not be
subject to the compliance review process. However, the Department will review each comprehensive plan for the purpose of determining whether the plan is based on the data and analyses described in this chapter and whether the data were collected and applied in a professionally acceptable manner. All tables, charts, graphs, maps, figures and data sources, and their limitations, shall be clearly described where such data occur in the above documents. Local governments are encouraged to use graphics and other techniques for making support information more readily useable by the public.
This Chapter shall not be construed to require original data collection by local government; however, local governments are encouraged to utilize any original data necessary to update or refine the local government comprehensive plan data base so long as methodologies are professionally accepted.
Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data used shall be the best available existing data, unless the local government desires original data or special studies. Where data augmentation, updates, or special studies or surveys are deemed necessary by local government, appropriate methodologies shall be clearly described or referenced and shall meet professionally accepted standards for such methodologies. Among the sources available to local governments are those identified in "The Guide to Local Comprehensive Planning Data Sources" published by the Department in 1989. Among the sources of data for preliminary identification of wetland locations are the
National Wetland Inventory Maps prepared by the U.S. Fish and Wildlife Service.
During the process of refining the Amendment, the County planning staff relied on data and analysis from a multitude of professionally prepared sources, including Eastward Ho!, the Rutgers study, and the Local Mitigation Strategy, as well as data and analysis provided by the Regional Planning Council. The planning staff, Planning Council, and County Commission further considered comments and data from interested parties. There is no requirement in either the statute or rule that data and analysis be originally collected by the County, and the record reflects that the Amendment is supported by adequate data and analysis.
The Plan Amendment is "In Compliance"
The City failed to prove beyond fair debate that the Amendment is not supported by relevant and appropriate data and analysis.
The City failed to prove beyond fair debate that the Amendment is inconsistent with any provision in the Broward County Comprehensive Plan.
The City failed to prove beyond fair debate that the Amendment is inconsistent with the South Florida Regional Policy Plan construed as a whole.
The City failed to prove beyond fair debate that the Amendment is inconsistent with the State Comprehensive Plan.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder.
DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida.
RICHARD A. HIXSON
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 12th day of June, 2003.
COPIES FURNISHED:
Mark Goldstein, Esquire City of Hallandale
400 South Federal Highway Hallandale, Florida 33009
Craig Varn, Esquire
Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 315
Tallahassee, Florida 32399-2100
Jose R. Gonzalez, Esquire Broward County Attorney's Office
115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301
Colleen M. Castille, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
David Jordan, Acting General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 18, 2003 | Agency Final Order | |
| Jun. 12, 2003 | Recommended Order | Broward County Ordinance restricting use of flexibility units was in compliance under Section 163.3184, Florida Statutes. |
