STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SIERRA CLUB and JOHN S. WADE, ) JR., )
)
Petitioners, )
)
vs. )
) DEPARTMENT OF COMMUNITY AFFAIRS ) and MIAMI-DADE COUNTY, )
)
Respondents, )
)
and )
)
MONROE COUNTY and CITY OF )
HOMESTEAD, )
)
Intervenors. )
Case No. 03-0150GM
)
RECOMMENDED ORDER
This case was heard by David M. Maloney, Administrative Law Judge of the Division of Administrative Hearings, on
September 21-23, 27 and 28, 2005, in Miami, Florida.
APPEARANCES
For Petitioners: Richard Grosso, Esquire
Environmental and Land Use Law Center Shepard Broad Law Center
Nova Southeastern University 3305 College Avenue
Fort Lauderdale, Florida 33314 and
Robert N. Hartsell, Esquire Environmental and Land Use Law Center Northern Everglades Office
330 U.S. Highway 1, Suite 3 Lake Park, Florida 33403
For Respondent Department of Community Affairs:
Richard E. Shine, Esquire David L. Jordan, Esquire
Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
For Respondent Miami-Dade County:
Dennis A. Kerbel, Esquire Craig H. Coller, Esquire
Miami-Dade County Attorney Office Stephen P. Clark Center
111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993
For Intervenor Monroe County:
Derek V. Howard, Esquire Morgan & Hendrick
317 Whitehead Street Key West, Florida 33040
For Intervenor City of Homestead:
Nina L. Boniske, Esquire
Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.A.
2665 South Bayshore Drive, Suite 420
Miami, Florida 33133 and
James E. White, Esquire
Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.A.
3107 Stirling Road, Suite 300 Fort Lauderdale, Florida 33312
STATEMENT OF THE ISSUE
Miami-Dade County's Krome Avenue is a two-lane, undivided highway. In October 2002, the Board of County Commissioners for Miami-Dade County (the Commission) passed Ordinance No. 02-198. The ordinance adopted an amendment composed of several parts to the County's Comprehensive Development Master Plan (CDMP).
Among the parts of the amendment were changes and additions to the CDMP initiated by an application ("Application No. 16") that relate to Krome Avenue (the "Plan Amendment.")1
Quite detailed, the Plan Amendment, in essence, makes changes that re-designate a substantial segment of Krome Avenue from 2 lanes to 4 lanes. The Plan Amendment's additions add all of Krome Avenue as a Major Route among the CDMP's designated evacuation routes in the year 2015, create new policies related to approval of use of land in the vicinity of Krome Avenue designated as a four-lane roadway and create a new policy related to planned capacity improvement to the roadway, including widening to four lanes.
The issue in this growth management case is whether the Plan Amendment is "in compliance" as defined in the Local Government Comprehensive Planning and Land Development Regulation Act.
Preliminary Statement
Under cover of a letter dated January 17, 2003, the Department of Community Affairs (the "Department" or "DCA") forwarded to the Division of Administrative Hearings (DOAH) a petition that requested a formal administrative hearing. The petition was "forwarded [to DOAH] for assignment of an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes."
The petition was filed by the Sierra Club and John S. Wade, Jr., against the Department and Miami-Dade County (County) after the Department had issued a notice of intent to find the Plan Amendment transmitted by the County "in compliance" with the Local Government Comprehensive Planning and Land Development Regulation Act (the "Act" or the "Growth Management Act") contained in Part II of Chapter 163, Florida Statutes. The petition alleges that the Plan Amendment is "not in compliance as defined in section 163.3184(1), Fla. Stat., because it is inconsistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, the state comprehensive plan, with appropriate strategic regional policy plan, and with Chapter 9J-5, FAC." Petition for Formal Administrative Hearing,
p. 4, paragraph 16. For relief, the petition requests, inter
alia, that the administrative law judge enter a recommended order finding that the Plan Amendment is not in compliance.
Upon receipt of the petition, DOAH assigned it Case No.
03-0150GM. Charles A. Stampelos was designated as the Administrative Law Judge to conduct the proceedings. A Notice of Hearing was issued that set the case for final hearing in March and April 2003. In February, the case was continued until September 2003 and in July 2003, the case was re-assigned to the undersigned.
Prior to final hearing, two petitions to intervene were filed: the first, by Monroe County in support of Petitioners2; the second, in support by the City of Homestead in support of DCA and Miami-Dade County.3 Both were granted subject to proof of standing.
Prior to hearing, a number of unopposed motions for continuances were granted. In addition, three motions were filed by the County: one for summary final order, a second to relinquish jurisdiction and issue a recommended order and the third a motion in limine. The three motions were denied.
The case proceeded to final hearing in September 2005 in Miami, Florida. The evidentiary portion of the final hearing opened with the introduction and admission of most of the joint exhibits admitted over the course of the hearing. All in all,
60 joint exhibits were offered and admitted. They are marked as Joint Exhibit Nos. 1-17, 19-27, 29-31, 34-44, 46-49, 51-57, and 59-67.
Petitioners commenced the presentation of their case-in- chief first. They presented the testimony of seven witnesses: Dickson Eazala, Comprehensive Planner with Miami-Dade County; Kay Bismark, an expert in the Redland area real estate market; John S. Wade, Jr., Petitioner; Rodrick Jude, Chair of the Sierra Club's Miami Group Executive Committee; Thomas Van Lent, an expert in the field of southern Everglades hydrology and restoration; Charles Pattison, Executive Director and Planner for One Thousand Friends of Florida and an expert in comprehensive planning and compliance under the Growth Management Act; and, Diane O'Quinn, Director of Miami-Dade County's Department of Planning and Zoning, an expert in the field of comprehensive planning.
Petitioners offered 13 exhibits, marked as Petitioners' Exhibit Nos. 9-13, 17-19, 21-23, and 29-30. Petitioners' Nos.
18 and 23 were rejected and then proffered by petitioners. The rest of the exhibits offered by Petitioners were admitted.
Intervenor Monroe County presented the testimony of Timothy McGarry, Director of Growth Management in Monroe County and an expert in land planning. Monroe County offered two exhibits, marked as Monroe County Exhibit Nos. 1 and 2; both were admitted.
Miami-Dade County presented the testimony of Thomas Pelham, an expert in the fields of comprehensive planning and review of
plans and plan amendments for compliance with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 9J-5; Alice Bravo, District Planning and Environmental Management Engineer for the Florida Department of Transportation (FDOT); and Jonathan Lord, Emergency Management Coordinator with Miami- Dade County's Office of Emergency Management. Miami-Dade County offered two exhibits, marked as Miami-Dade County Exhibit Nos. 1 and 2; both were admitted.
The Department of Community Affairs presented the testimony of Paul Darst, Senior Planner in the Department, an expert in the fields of comprehensive planning and the review of comprehensive plan amendments with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 97-5. The Department offered one exhibit, marked as DCA Exhibit No. 1. It was admitted.
After a number of motions granted to extend the time for the filing of proposed orders, the parties filed timely proposed recommended orders on February 3, 2006. This Recommended Order
follows.
FINDINGS OF FACT
Krome Avenue
Less than a mile south of downtown Florida City, at a "fork in the road" for a driver headed north, Krome Avenue branches off of US 1 (South Dixie Highway). It heads in a
northwesterly direction for a short distance, turns due north through Florida City and the City of Homestead and then bolts northward across a considerable stretch of western Miami-Dade County. With only a slight directional variation at an intersection with Kendall Drive, the road continues its due north run until its last several miles when it turns northeasterly before it merges with US 27 (Okeechobee Road) just shy of the Broward County line.
Over its 37-mile span, there are a number of significant features of the two-lane undivided roadway. Known also as 177th Avenue, it serves as the main street for the City of Homestead, a municipality hard-hit by Hurricane Andrew in 1992. It treads along the edge of the Everglades Protection Area. In the south, Krome Avenue's locus varies in distances relatively close to Everglades National Park. In the case of Water Conservation Area 3 (WCA-3) to the north, the roadway abuts the Everglades sector's politically-drawn east border. For most of its length north of US 41 or the Tamiami Trail it fragments wetlands designated as "Environmental Protection" with WCA-3 to the west and an extension of the historical Everglades to the east. It also traverses the Redland, an expansive tract
of prime agricultural land packed between suburbs and the fabled River of Grass.
Krome Avenue's cross of the Redland renders it a route essential to agricultural interests in the area. The roadway is used to transport harvested row crops and as a means to get produce from fruit and vegetable groves to market in the face of competitive pressure from Mexico and Central America, competition generated by the North American Free Trade Agreement (NAFTA) since its adoption during the Clinton Administration. Lately, Krome Avenue has been a shipping lane for bush, flower and tree products from recently-arisen container nurseries dedicated to ornamental horticulture. The burgeoning nursery business supports the landscaping needs of the real estate and building industries in a county that has experienced explosive residential and commercial growth recently due in substantial part to stimulation from a financing environment of low interest rates that has persisted for more than half a decade.
Due to Krome Avenue's proximity to the Everglades, any proposed and adopted amendments to the CDMP or local zoning action that might promote improvement of the roadway draws attention of some involved in the Comprehensive Everglades Restoration Project (the "Project" or "CERP"). The Project, called for by Congress to be completed by the U.S. Army Corps of Engineers in a joint effort with the state and the South Florida Water Management District (SFWMD) involves the expenditure of prodigious governmental funds and utilization of ground-breaking
science. Of considerable interest to many communities, residential, commercial, environmental, agricultural, and scientific, to name some of the more obvious, CERP is the subject of government involvement at all levels. Of concern is anticipation that improvement to Krome Avenue supported by CDMP amendments threatens to contribute to rises in the value of property that is being sought or may be sought for governmental acquisition to further CERP at a time when there are various forces in play to reduce funding for the Project.
A Significant Roadway
Krome Avenue's is Miami-Dade County's westernmost roadway of statewide significance. The CDMP recognizes this status: it classifies the roadway as a state principal arterial roadway. The state likewise recognizes Krome Avenue's significance. FDOT has designated Krome Avenue a corridor in the Florida Intrastate Highway System (FIHS)4 developed to address requirements for a National Highway System imposed by the Congress' Intermodal Surface Transportation and Efficiency Act (ISTEA) of 1991. The Plan Amendment makes it is a hurricane evacuation route for residents and the transient population of south Miami-Dade County and provides an alternative evacuation route to Monroe County and the Florida Keys, an area sensitive to effects generated by residential development in south Florida.
Despite its import to local, state and national transportation systems and the recognition of that import in the last several decades, the roadway has remained an undivided rural two-lane highway. Its configuration and the transportation demands that have increased in recent years have led to concerns about safety on much of Krome Avenue.
Krome Avenue Safety
The 33-mile segment of the corridor between Southwest 296th Street and US 27 exhibits a vehicular crash rate that is consistently higher than the statewide average for highways with the same characteristics. A significant portion of those crashes have resulted in fatalities or severe injuries.
Between 1995 and 1999, there were 966 total vehicular crashes, of which 106 resulted in severe injuries and 16 resulted in fatalities. The number of crashes resulting in fatalities increased significantly after 1999. Between January 2000 and July 2002, there were an additional 26 crashes resulting in fatalities.
Between 1995 and 2002, a total of 59 people died on Krome Avenue in the 42 crashes involving fatalities. Fatal crashes occurred in four segments of Krome Avenue as indicated here:
Road Segment | Crashes | Deaths |
Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) | 16 | 26 |
Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) | 3 | 4 |
Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) | 16 | 21 |
Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) | 7 | 8 |
Of the 42 fatal crashes between 1995 and 2002, 15 were the result of head-on collisions. Another 15 were the result of centerline crossovers, where a vehicle traveling in one direction crossed over the roadway centerline and struck a vehicle traveling in the opposite direction. Crossover collisions differ from head-on collisions in that the point of impact is usually at an angle.
Head-on collisions and crossover collisions on Krome Avenue are due at least in part to its configuration as a two- lane, undivided road.
Because crashes occurred throughout the 33-mile corridor and not just at intersections, independent transportation engineering consultants retained by FDOT to analyze conditions on Krome Avenue recommended that a safety improvement plan should be considered for the entire corridor. (See paragraphs 18. to 28., below.)
Daily traffic volumes on Krome Avenue increased steadily between 1995 and 2001, growing at a rate of over
10 percent per year. In 2001, weekday traffic volumes were
approximately 14,000 to 15,000 vehicles between S.W. 8th Street and S.W. 296th Street and approximately 9,000 vehicles between US 27 and Southwest 8th Street, as illustrated in the following table:
Road Segment | Avg. Daily Traffic 2001 |
Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) | 9,000 |
Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) | 14,800 |
Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) | 14,500 |
Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) | 14,600 |
Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) | 14,100 |
Long-range traffic projections indicate that by the year 2020, weekday traffic volumes will be between 18,000 and 21,000 vehicles south of S.W. 8th Street, and approximately 12,000 vehicles to the north. No projection suggests that traffic will decrease. Indeed, traffic models for Miami-Dade County have systematically underestimated actual traffic volume.
Many intersections on Krome Avenue operate with unacceptable levels of delay, which affect drivers’ overall travel times. These conditions are reasonably expected to degrade over the coming decades.
The increased traffic volume and attendant diminution in Level of Service mean that a large percentage of motorists on Krome Avenue are not able to travel at desired speeds. Slow-
moving vehicles impede drivers’ forward progress, but because Krome Avenue is a two-lane road with a high volume of traffic traveling in both directions, drivers are not able to pass those vehicles. The result is an increase in driver frustration.
The number of head-on crashes on Krome Avenue indicates that many drivers, as they get frustrated, are more willing to attempt risky passing maneuvers. Because passing generally involves higher speeds, crashes that result from risky passing maneuvers are more likely to result in fatalities or severe injuries.
The problems associated with driver frustration are further exacerbated by the increasing volume of large trucks on Krome Avenue. The number of trucks as a percentage of overall traffic varies between 26 percent and 32 percent of daily traffic. Trucks contribute to delays at intersections and, thus, to overall delays in travel times. Trucks have difficulty turning off of Krome Avenue, thereby encouraging vehicles to attempt to pass them; those vehicles in turn pose a hazard to oncoming traffic, because they are obscured by the truck. Finally, the high percentage of trucks on the road contributes to an increase in the severity of crashes involving trucks. In general, because of the difference in size and speed between trucks and automobiles, the two types of vehicles should be
separated as much as possible especially by a median separating lanes of traffic proceeding in opposing directions.
The 1999 Krome Avenue Action Plan
In 1999, FDOT produced the Krome Avenue Action Plan (the "Action Plan.") The Action Plan followed by nine years the Florida Legislature's adoption of the FIHS of which Krome Avenue is a part. FIHS standards require that FIHS roadways be designated as controlled access facilities and that they be configured with a minimum of four lanes divided by a restrictive median (the "FIHS Directive").
Attempts to bring Krome Avenue into compliance with the FIHS Directive met with difficulties described in the Executive Summary of the Action Plan:
To begin the long-range planning process required to achieve this directive, the Florida Department of Transportation (FDOT) programmed various phases of improvement for Krome Avenue in their tentative work program. This work program was adopted by the Metropolitan Planning Organization (MPO) as the Miami-Dade County Transportation Improvement Plan (TIP) and provides funding for a more detailed study of the corridor.
This action set off a string of controversial meetings and hearings regarding the consistency of the TIP, the Miami-Dade County Comprehensive Development Master Plan (CDMP), and local government comprehensive plans.
In response to the controversy, the MPO modified their TIP to eliminate consideration of Krome Avenue as a four (4) lane divided roadway with landscaped medians
throughout the facility. In February 1997, FDOT began analyzing the Krome Avenue corridor and developing the Krome Avenue Action Plan. During the public involvement process, several alternatives were developed to preserve Krome Avenue as a two (2) lane roadway. The results of sixteen (16) months of public involvement activities and engineering analysis identified the need to preserve the rural character of the corridor while providing safety and operational enhancements to the existing roadway.
Joint Exhibit 19, pgs. i-ii, (emphasis supplied).
In light of difficulty in reaching "consensus and public acceptance for any improvement alternative," id., p. ii, the Action Plan was conducted "as a precursor to the requisite Project Development and Environment (PD&E) Study to avoid the expenditure of the large sums of public funds in a study effort, with no resulting project." Id.
The Action Plan required that Krome Avenue be maintained as a two-lane road, and it recommended improvements, such as adding additional lanes and traffic signals at intersections; implementing an access management plan to limit the number of driveways and cross-street connections to Krome Avenue and to restrict turns off of the roadway; enhancing road shoulders; providing passing zones; adding pedestrian and bicycle facilities; improving pavement markings and signs; and widening the areas from the edge of the roadway that are free of
obstructions, known as clear zones, to prevent crashes that result from drivers running off of the road.
The Action Plan was premised on traffic volume projections for the year 2010 that were exceeded or were nearly exceeded by the traffic actually observed in 2001, nine years before the final projection. In addition, the amount of traffic observed in 2001 was close to the amount of traffic projected for 2020:
Road Segment | 2010 KAAP Forecast | 2020 KAAP Forecast | 2001 Avg. Daily Traffic |
Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) | 9,349 | 10,475 | 9,000 |
Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) | 14,713 | 16,486 | 14,800 |
Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) | 14,713 | 16,486 | 14,500 |
Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) | 12,730- 16,351 | 13,486- 18321 | 14,600 |
Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) | 11,921- 16,917 | 12,629- 17,921 | 14,100 |
Furthermore, after the Action Plan, that is, after 1999, the number of fatal crashes increased significantly. The increase was noted in an "Existing Level of Service Study" prepared for District VI of FDOT by Kittelson & Associates, Inc., (the
"Kittelson Report").
The Kittelson Reports
In 2002, FDOT retained Kittelson & Associates (“Kittelson”), independent transportation planning and
engineering consultants, to report on Krome Avenue. Kittelson produced two reports in August and October of that year (the "First Kittleson Report" and the "Second Kittleson Report").
The First Kittleson Report is entitled “SR 997/Krome Avenue Existing Level of Service Study” and the Second Kittleson Report is entitled “SR 997/Krome Avenue Future Conditions Analysis and Mitigation Measures.” See Joint Exhibits 15 and 49.
The 1999 Action Plan, prepared in the wake of public controversy and concerns regarding consistency between the CDMP and the FIHS Directive, directly addressed those concerns and reached a compromise in the conflict. As stated in the last paragraph of its Executive Summary:
Although the improvements in the Krome Avenue Action Plan do not result in a facility that meets all FHS standards, the Action Plan represents the best compromise among a wide range of diverse interests including hundreds of interested residents, agency staff, and elected officials.
Joint Exhibit 19 (emphasis supplied). Unlike the Action Plan, however, Kittelson's focus, as stated in the opening sentence of its Executive Summary in the First Kittleson Report, was squarely on level of service and safety issues: "The purpose of this study is to perform a detailed Level of Service and safety analysis for existing conditions along the SR 997/Krome Avenue (177th Avenue) corridor." Joint Exhibit 15, pgs. II and 2.
In the Second Kittleson Report, Kittleson summarizes its finding with regard to the increase in the number and severity of crashes on Krome Avenue:
. . . [I]t is clear that traffic volume growth and increasing levels of congestion have contributed to driver frustration and attempts to make risky passing maneuvers on Krome Avenue. This has probably led to an increase in the number and severity of crashes in the corridor.
Joint Exhibit 49, p. E-V.
The Second Kittleson Report recognized that short of widening to a divided, four-lane roadway, there are a number of congestion and safety measures that could be considered to enhance mobility and safety, some of which were recommended by the 1999 Action Plan and some that were in addition to that plan. But the Second Kittleson Report argued for consideration of widening Krome Avenue to a four-lane divided roadway:
. . . [T]here are four factors that, in combination, argue for the consideration of widening Krome Avenue to a four lane divided section:
The fact that Krome Avenue is on the Florida Intrastate Highway System and the requirement that it be designated as controlled-access facility with a cross-section that provides for at least four lanes with a restrictive median.
The likelihood that the high percentage of trucks that use the entire length of the corridor
Id.
contribute to an increase in crash severity when trucks are involved in crashes.
The increasing levels of roadway and
intersection congestion and the difficulty in mitigating these levels of congestion short of providing for additional north-south through movement capacity.
The crash experience on Krome Avenue
exceeds the statewide average for this type of roadway. The high number of crashes and the increase in crash severity (as demonstrated by an increase in the number of fatal crashes largely due to head-on and angle collisions) that likely would be mitigated by physically separating the directions of travel with a median.
In a section of the Second Kittelson Report under the
heading of "Availability of Passing" Kittelson details the problems with passing on a two-lane undivided Krome Avenue, the contribution these problems make to head-on collisions and the high speeds at which passing maneuvers occur. The report concludes that several measures should be considered to counter safety issues associated with passing maneuvers, among them, the addition of passing lanes and a median separated two-lane section. The first countermeasure recommended, however, is the creation of a four-lane section:
A four-lane section eliminates the need for drivers to judge the adequacy of gaps in opposing traffic and use the opposing lane to perform the passing maneuver. The length
and placement of a four-lane section can vary (for example, a four-lane section can be located between intersections or on a specific stretch of roadway). It is noted that in areas where access to roadside properties exists or is planned, a four-lane section should be median separated and that left-turn lanes need to be provided to minimize crossover crashes and rear-end crashes. A properly designed four-lane section can be expected to nearly eliminate head-on crashes (a crash type that often results in severe injuries or fatalities) and reduce the total number of roadway crashes associated with passing maneuvers.
Joint Exhibit 49 (emphasis supplied). The Second Kittleson Report notes that "[w]hen considering potential countermeasures, it is important to note that one treatment does not have to be applied to the entire corridor." Joint Exhibit 49, p. 36. The reason is that there are a number of issues including safety that should be examined. The Second Kittelson Report reaches the conclusion, therefore, that "[a]n alternative analysis that considers issues such as available right-of-way, environmental impacts, safety benefits, operational benefits, and community concerns should be completed in order to decide what the preferred treatment should be." Id.
In light of four factors stated above and specifically, the solution to head-on collisions offered by upgrading a two-lane undivided highway to a four-lane divided highway, Kittelson in the Second Kittleson Report recommends, "that a Project Development and Environment process be conducted
to consider the range of solutions for improving the operational and safety characteristics of Krome Avenue." Joint Exhibit 49,
p. E-V. The Kittleson reports, therefore, went a step beyond the 1999 Action Plan. They call for improvement of some or all of Krome Avenue to a four-lane section with a restrictive median as one of the solutions, among a range of solutions, to safety on Krome Avenue.
Before such an improvement can take place, however, FDOT must conduct a Project Development and Environment Study (a "PD&E Study.")
FDOT's Position
FDOT is solely responsible for funding and building improvements to Krome Avenue.
FDOT has neither a rule nor an un-codified policy that it will not consider funding or building an improvement to a road under its jurisdiction when improvement would be inconsistent with an applicable local comprehensive plan. Nevertheless, as made clear in the 1999 Krome Avenue Action Plan, FDOT is plainly sensitive to undertaking expensive studies necessary to roadway improvements that are inconsistent with local comprehensive plans. A PD&E Study is resource-intensive in time, money and FDOT commitment. Inconsistency with a local comprehensive plan is not a prescription for action on roadway
improvement; rather it tends to produce a situation laden with complication as FDOT's District Engineer testified at hearing:
(Tr. 768)
Q. . . .[I]f this plan amendment which authorizes the widening, on the comprehensive plan, to four lanes, if this amendment is rejected, what happens next?
A. . . . [W]e would have to stop and consider the circumstances, the situation, a lot of different factors before we decided whether or not to proceed with the ... study.
FDOT has long been aware of safety problems on Krome Avenue. In the wake of the Kittelson Reports commissioned after a rapid rise in life-threatening traffic accidents on Krome suspected to be due, at least in part, to its configuration and a strong recommendation that widening and median placement be considered among a range of improvements, a PD&E Study was not commenced. As of the time of hearing a PD&E Study had still not been commenced.
Evacuation Route
In considering the data related to safety on Krome Avenue, including the Kittelson Report, the Commission considered Krome Avenue's status as an evacuation route.
Since the early 1990s, Miami-Dade County has experienced significant population growth along its southern and western fringes, between the Broward County line and the
Homestead/Florida City area. This growth is reasonably expected to continue.
Because Krome Avenue is one of only three continuous north-south routes in Miami-Dade County, it is important to persons evacuating the City of Homestead and other surrounding areas in southern and western Miami-Dade County and Monroe County. Krome Avenue is an evacuation route not only for hurricanes but also for “all hazards,” such as a meltdown at the Turkey Point Nuclear Power Plan. Nonetheless, it is not designated by Monroe County as part of the official evacuation route.
Krome Avenue had been used to evacuate southern Miami- Dade County during Hurricane Andrew. It had also been used to transport relief personnel, vehicles, and supplies in the aftermath of that storm.
Given the growth of Miami-Dade County’s population, the other north-south routes, the Florida Turnpike and US 1, would be extremely congested if all of southern and western Miami-Dade County evacuated—much more so if Monroe County evacuated at the same time.
Moreover, it is not only people who live in mandatory evacuation zones who evacuate during an emergency: an increasing number of people evacuate voluntarily. Additional
capacity on Krome Avenue is necessary to accommodate both mandatory and voluntary evacuees.
Miami-Dade County’s Comprehensive Emergency Management Plan, prepared by the Miami-Dade Office of Emergency Management (“OEM”) in October 2000 and adopted by the County Commission, currently designates Krome Avenue as a primary north-south evacuation route for the Florida Keys and south Miami-Dade, in the event of a hurricane or an emergency related to the Turkey Point Nuclear Power Plant. Designated evacuation routes are roads that OEM encourages people to use in an emergency, and they are selected based on recognizability, carrying capacity, and where they end.
To maintain consistency between the Emergency Management Plan and the CDMP, the Plan Amendment amends the map of “Designated Evacuation Routes-2015” in the Transportation Element to add Krome Avenue as a “Major Route.”
Monroe County’s Director of Growth Management, Timothy McGarry, opined that Krome Avenue was not necessary to accommodate evacuation from Monroe County, because the Florida Turnpike provided adequate capacity. But McGarry based his opinion on the amount of Monroe County’s population that has historically evacuated, which is 50 percent. McGarry would not say that the Florida Turnpike would provide adequate capacity if
100 percent of Monroe County’s population were to evacuate.
Moreover, McGarry conceded that, in formulating his opinion, he had not considered what would happen if both Monroe County and southern Miami-Dade County evacuated at the same time.
A four-lane Krome Avenue would increase the capacity of Miami-Dade County’s Primary Evacuation Route System and facilitate relief efforts to south Miami-Dade and Monroe County. Moreover, if residents of both Miami-Dade County and Monroe County are evacuated, the additional capacity would allow OEM to direct Miami-Dade residents to Krome Avenue, thus opening the Turnpike and US 1, which provide the only exit routes from the Florida Keys, for residents and tourists evacuating Monroe County.
The CDMP and the UDB
Miami-Dade County is one of the only counties in the State of Florida to have an “urban development boundary" (UDB.) In the Land Use Element of the Adopted Components of the Year 2000 and 2010 CDMP dated December, 1988, the UDB is described:
The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2000 from areas where it should not occur.
* * *
The CDMP seeks to facilitate the necessary service improvements within the UDB to accommodate the land uses indicated on the LUP map within the year 2000 time frame.
Accordingly, public expenditures for urban
service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element.
Joint Exhibit 56-A, pgs. I-35 and I-36. Thomas Pelham, Miami- Dade County's expert in comprehensive planning, explained the difference between a UDB and an Urban Services Area:
The urban service area concept is the local government's designation of the areas in which it . . . will provide urban services.
The urban growth boundary is a technique by which a line is drawn beyond which urban development will not be allowed.
Tr. 662-3. With regard to the UDB, the parties stipulated,
The CDMP currently contains policies to discourage urban sprawl and urban development in areas outside the Urban Development Boundary (the "UDB"), particularly areas designated Agriculture, Open Land, or Environmental Protection.
These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas.
Pre-hearing Stipulation, p. 14, para. 13.
The UDB appears on the CDMP's Adopted 2005 and 2015 Land Use Plan map ("LUP map") as a broken line that on its northern end commences on the border with Broward County. It
runs primarily north-to-south along the breadth of developed Miami-Dade County, within several miles of the Everglades and environmentally protected lands, and through the Redland to a point southwest of Florida City and Homestead where it turns sharply east for five to six miles and then heads in a primarily northeast direction around Homestead Regional Airport to meet the coast along Biscayne Bay near Black Point Park.
Other counties have at most an “urban service area” or “urban service boundary,” which merely designates the areas in which the government will provide urban services. In contrast to the UDB, an urban service area does not prohibit urban development outside its boundary. A comprehensive plan with an urban services area typically provides only that the landowner, rather than the government, is responsible for providing urban services outside the urban services area.
Miami-Dade County had the UDB before the Florida legislature adopted the laws requiring comprehensive plans, in 1985. The UDB thus predates the CDMP, which was adopted in 1988.
Neither Chapter 163 nor Rule 9J-5 requires an urban development boundary. In providing a UDB in the CDMP, therefore, Miami-Dade County is making use of a technique to discourage urban sprawl that exceeds the requirements of Chapter
163 and Rule 9J-5.
Miami-Dade County has rarely expanded the UDB in areas not designated as Urban Expansion Areas (“UEAs”). In the last
10 years, the UDB has only been expanded once. That amendment, for the Beacon Lakes project, approved an industrial use where rock mining and cement manufacturing had already taken place.
All along its path, Krome Avenue is outside (or to the west of) the UDB.
The CDMP does not specify any procedures for applications to move the UDB, beyond the requirements applicable to plan amendments generally. Instead, the procedures for moving the UDB are set forth in Section 2-116.1 of the Code of Miami-Dade County Florida (the “County Code”). That section requires an affirmative vote from two-thirds of the total membership of the County Commission.
There are no restrictions on how frequently the County Code may be amended. Changes to the County Code may be accomplished by ordinance at any legislative meeting of the County Commission. The entire process can take as little as three months.
Changes to the CDMP, by contrast, are subject to more rigorous procedures: applications may only be filed twice a year; they require review by the Regional Planning Council and DCA; they require two public hearings before the Planning
Advisory Board; they require two public hearings before the County Commission; and the entire process takes one year.
In its “Statement of Legislative Intent,” the CDMP provides:
3. The CDMP is intended to set general guidelines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations.
* * *
6. The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities.
Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare.
Pre-Hearing Stipulation, para. 14.
The CDMP currently contains substantive policies to discourage urban sprawl and urban development in areas outside the UDB, particularly areas designated Agriculture, Open Land,
or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas.
Land Use Objective 1 provides:
The location and configuration of Miami-Dade County’s urban growth through the year 2015 shall emphasize concentration and intensification of development around centers of activity, development of well designated communities containing a variety of uses, housing types and public services, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl.
Pre-Hearing Stipulation, para. 15.
Land Use Element Policy 1P provides:
Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities.
Pre-Hearing Stipulation, para. 16.
Land Use Element Policy 1Q provides:
While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism related to the area’s agricultural and natural resource
base including Everglades and Biscayne National Parks.
Pre-Hearing Stipulation, para. 17.
Land Use Element Policy 2B provides:
Priority in the provision of services and facilities and the allocation of financial resource for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non-urban areas.
Pre-Hearing Stipulation, para. 18.
Land Use Element Policy 8C provides:
Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to promote agriculture as a viable economic use of land in Miami-Dade County.
Pre-Hearing Stipulation, para. 19.
Land Use Element Policy 8F provides:
Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objective and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would:
Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County;
Enhance or impede provision of services at or above adopted LOS Standards;
Be compatible with abutting and nearby land uses and protect the character of established neighborhoods;
Enhance or degrade environmental or historical resources, features or systems of County significance; and
If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period of headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective 7, herein.
Pre-Hearing Stipulation, para. 20.
Land Use Element Policy 8G provides:
The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of the EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy 7F. The adequacy of non-residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community-
oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities.
Pre-Hearing Stipulation, para. 21.
Land Use Element Policy 8H provides: When considering land areas to add to the
UDB, after demonstrating that a countywide need exists,
The following areas shall not be considered:
The Northwest Wellfield Protection Area located west of the Turnpike Extension between Okeechobee Road and NW 25 Street, and the West Wellfield Protection Area west of SW 157 Avenue between SW 8 Street and SW
42 Street;
Water Conservation Areas, Biscayne Aquifer Recharge Areas, and Everglades Buffer Areas designated by the South Florida Water Management District;
The Redland area south of Eureka Drive; and
The following areas shall be avoided:
Future Wetlands delineated in the Conservation and Land Use Element;
Land designated Agriculture on the Land Use Plan map;
Category 1 hurricane evacuation areas east of the Atlantic Coastal Ridge; and
The following areas shall be given priority for inclusion, subject to conformance with Policy 8G and the foregoing provision of this policy:
Land within Planning Analysis Tiers having the earliest projected supply depletion year;
Land contiguous to the UDB;
Locations within one mile of a planned urban center or extraordinary transit service; and
Locations having projected surplus service capacity where necessary facilities and services can be readily extended.
Pre-Hearing Stipulation, para. 22.
Interpretation of the LUP Map: Policy of the Land Use Element provides:
Urban Development Boundary (p. I-45)
The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2005 from areas where it should not occur Adequate
countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process . . . .
[U]rban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted
only if such roadways are shown on the LUP map and in the Transportation Element. . . .
Concepts and Limitations of the Land Use Plan Map: Coordinated-Managed Growth (p. I- 59)
[C]ritical in achieving the desired pattern of development is the adherence to the 2005 Urban Development Boundary (UDB) and 2015 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined.
In this regard, the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that the actions of one single- purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives.
Concepts and Limitations of the Land Use Plan Map: Ultimate Development Area (p. I- 64)
The 2005 and 2015 Land Use Plan map identified the areas that will be urbanized within those time frames. As indicated throughout this Plan, these are the areas of the County where financial resources should be directed from the maintenance and construction of urban infrastructure and services. Growth of Dade County, however, is not projected to cease after the year 2015. Therefore, prudent long-term planning for infrastructure may need to anticipate locations for possible future extension.
For example, it may be desirable to reserve
rights-of-way in certain growth corridors as well as on section, half-section, and quarter-section lines, well in advance of need so that opportunities to eventually provide necessary roadways are not irrevocably lost.
It is difficult to specify where and how much of Dade County’s total area may ultimately be converted to urban development. . . . It is reasonably safe to assume, however, that the areas least suitable for urban development today will remain least suitable. Theses areas include the remaining high-quality coastal and Everglades wetland areas in the County, and the Northwest Wellfield protection area.
The areas more appropriate for, and more likely to experience sustained urban pressure are the heavily impacted, partially drained wetlands in the Biscayne-Snake Creek and Bird-Trail Canal Basins, the agricultural areas of southwestern and southeast Dade, and the impacted wetlands south of Homestead and Florida City. When the need for additional urban expansion is demonstrated after the year 2015, such expansion should be carefully managed to minimize the loss of agricultural land and to maximize the economic life of that valuable industry. Accordingly, urban expansion after the year 2015 in the South Dade area should be managed to progress westerly from the Metrozoo area to Krome Avenue north of Eureka Drive, and on the west side of the US 1 corridor southerly to Homestead only when the clear need is demonstrated. . . .
Pre-Hearing Stipulation, para. 23 (emphasis supplied).
Of particular import to this proceeding, Policy 4C of the Traffic Circulation Subelement requires avoidance of improvements which encourage development in certain areas. With
regard to development in Agriculture and Open Land areas, transportation improvements which encourage development are to be avoided but avoidance is subject to an exception, "those improvements necessary for public safety and which serve the localized needs of these non-urbanized areas." Areas designated Environmental Protection, on the other hand, are to be "particularly avoided." Policy 4C of the Traffic Circulation Subelement provides:
Dade County’s priority in the construction, maintenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan map. Second priority in transportation allocations shall support the staged development of the urbanizing portions of the County within the Urban Expansion Area. Transportation improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas.
Areas designated Environmental Protection shall be particularly avoided.
Pre-Hearing Stipulation, para. 24 (emphasis supplied).
Policy 1A of the Water and Sewer Sub-element provides: The area within the Urban Development
Boundary of the Land Use Plan map shall have the first priority in providing potable water supply, and sanitary sewage disposal, and for committing financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public
water and sewer service shall be avoided in those areas designated for Agriculture, Open Land, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health, safety or welfare.
Pre-Hearing Stipulation, para. 25.
Policy 1H of the Water and Sewer Sub-element provides:
New water supply or wastewater collection lines should not be extended to provide service to land within the areas designated Agriculture, Open Land or Environmental Protection on the Land Use Plan map. New water or wastewater lines to serve land within these areas should be approved or required only where the absence of the facility would result in an imminent threat to public health or safety. The use of on- site facilities should be given priority consideration. In all cases, facilities should be sized only to service the area where the imminent threat would exist, to avoid inducing additional urban development in the area. This policy will not preclude federal, State or local long-range planning or design of facilities to serve areas within the Urban Development Boundary (UDB) or Urban Expansion Area (UEA). Public health and safety determinations will be made in accordance with Chapter 24 of the Code of Miami-Dade County (Environmental Protection) and Section 2-103.20, et. seq., (Water Supply for Fire Suppression) Code of Miami-Dade County.
Pre-Hearing Stipulation, para. 26.
Policy 5A of the Capital Improvements Element provides:
As a priority, previously approved development will be properly served prior to new development approvals under the
provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority for investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs.
Pre-Hearing Stipulation, para. 27.
The Plan Amendment
The Plan Amendment consists of several components grouped as follows: a. changes in Plan designations in the Land Use Element on the LUP map and in the Traffic Circulation Subelement that increase the lanes on a segment of Krome Avenue from 2 lanes to 4 lanes (the "Lane Increase Changes");
b. changes in the Transportation Element's Traffic Circulation Subelement that add Krome Avenue as a Major Route in the Designated Evacuation Routes 2015 (the "Evacuation Route Change"); c. addition of new policies that require among other matters a super-majority of the County Commission for zoning action or amendment to the CDMP that would approve certain uses within one mile of Krome Avenue designated for improvement to four lanes (the "New Super-Majority Policies"); and d. addition of a new policy that requires adoption of a binding access control plan for the Krome Avenue corridor before capacity
improvements to Krome Avenue outside the UDB (the "New Binding Access Control Plan Policy").
The parties stipulated to the following narrative description of the Plan Amendment:
31. As part of the October 2002 Plan Amendment, the County Commission approved Application 16. Application 16 made the following changes to the CDMP:
Changed the Plan designations of Krome Avenue (SR 997/SW 177 Avenue), between US 27 and SW 296 Street, as follows:
In the Land Use Element, on the Land Use Plan map change from Minor Roadway (2 lanes) to Major Roadway (3 or more lanes); and in the Transportation Element, Traffic Circulation Subelement, Figure 1, “Planned Year 2015 Roadway Network”: Change from 2 lanes to 4 lanes.
In the Transportation Element, Traffic Circulation Subelement, added Krome Avenue between US 27 and US 1 to Figure 7, Designated Evacuation Routes 2015, as a Major Route.
Added the following new Policy 3F to the Land Use Element:
Any zoning action or amendment to the CDMP that would approve any use other than direct agricultural production and permitted residential uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinate use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for
improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. The term “direct agricultural production” includes crops, livestock, 15 nurseries, groves, packing houses, and barns but not uses such as houses of worship, schools, sale of produce and other items, and outdoor storage of vehicles. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office.
Added the following new Policy 3G to the Land Use Element:
Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than limestone quarrying, seasonal agriculture or permitted residential use in an area designated as Open Land on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision.
This policy is not intended to permit any use not otherwise permitted by the CDMP.
Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an
affirmative vote of not less than two-thirds of the Board of County Commissioners then in office.
Added the following new Policy 3H to the Land Use Element:
Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than seasonal agricultural use in the Dade-Broward Levee Basin or permitted residential use in an area designated as Environmental Protection, on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision.
This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office.
Added the following new Policy 4E to the Traffic Circulation Subelement:
Notwithstanding the designation of Krome Avenue as a Major Roadway on the CDMP Land Use Plan Map or as a four-lane roadway in the Traffic Circulation Subelement, no construction associated with the four- laning, or other capacity improvement, of Krome Avenue outside the Urban Development Boundary shall occur until FDOT has prepared, and the Board of County Commissioners has adopted, a detailed
binding access control plan for the Krome Avenue corridor. This plan should emphasize access to properties fronting Krome Avenue primarily through alternative street locations.
Pre-hearing Stipulation, para. 28.
Land Uses Near Krome Avenue
North of S.W. 56th Street, the bulk of land uses around Krome Avenue are Environmental Protection and Open Land with almost all of the adjacent land north of US 41 designated Environmental Protection. South of S.W. 56th Street the land is designated as Agriculture and Environmental Protection except for near Homestead and Florida City where the land use designations are Residential Communities (of mostly low density), Business and Office and some Industrial and Office.
Krome Avenue currently provides the western boundary of an Urban Expansion Area (UEA) for the year 2015 between what would be an extension of S.W. 42nd Street and an extension of
S.W. 112th Street. The CDMP directs that urban infrastructure and services be planned for eventual extension into the UEA, as far west as Krome Avenue, sometime between 2005 and 2015. In addition, the area two miles east of Krome Avenue, between S.W. 12th Street and S.W. 8th Street, is designated as UEA.
What the Plan Amendment Does Not Do
Of particular import to this proceeding, given the case presented by Petitioners, is what the Plan Amendment does not do.
The Krome Avenue Amendment does not change any land uses.
It does not alter the existing Conservation Element or any other CDMP policies that protect environmental resources.
It does not add Krome Avenue to the Capital Improvements Element or provide funds for or authorize construction on Krome Avenue.
Furthermore, any future attempt to change land use in the vicinity of Krome Avenue, if anything, will be more difficult because of the New Supermajority Land Use Policies contained in the Plan Amendment.
The New Supermajority Policies work in tandem with the substantive policies to provide the standards for land use changes within one mile of Krome Avenue designated for improvement to four lanes. For example, existing Land Use Policy 8H states that the areas surrounding Krome Avenue, particularly areas west of the road, be avoided or not be considered if Miami-Dade County proposes expanding the UDB.
Because the only procedural requirements for moving the UDB are currently contained in the County Code, which may be amended from time to time, adding the Supermajority Requirement to the CDMP with its more rigorous amendment procedures, tends to make it more difficult to change the planning and zoning designations on a property.
The Lane Increase Changes
There are serious safety problems that rise to the level of literally "life-or-death" on the segment of Krome Avenue subject to the Lane Increase Changes.
The Lane Increase Changes do not mandate that the portion of Krome Avenue that they govern be four-laned. They simply allow four-laning if a PD&E Study is conducted by FDOT that determines four-laning is the best way to address the safety issues. While the Lane Increase Changes give a designation to the Changed Segment of Krome Avenue that would allow it to be four-laned, it will not be four-laned until it is determined on the basis of further study in the future that four-laning is the best alternative for improving the Changed Segment.
The Lane Increase Changes, without regard to the New Supermajority Policies, are supported by adequate data and analysis. This data and analysis consists of studies and
commentaries by FDOT, including the Kittelson Reports and the 1999 Action Plan.
The Lane Increase Changes do not authorize construction of improvements to the road. They do not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." (Tr. 671) It is only actual development that would cause potential urban sprawl that might threaten agriculture or pose a danger to the Everglades. Before any development could take place, additional amendments would have to be made to the CDMP. Those amendments would be subject to the same process as the Plan Amendment has undergone and is now undergoing. In other words, the potential dangers feared by Petitioners could not materialize without adoption of additional plan amendments.
Furthermore, the fears held by Petitioners are mitigated by the New Supermajority Policies.
DCA Review
The entire package of amendments in the second round of 2002 for the CDMP, which included Application 16, is referred to by DCA as "Miami-Dade County 02-2 Proposed Comprehensive Plan Amendments." See Joint Exhibit 11.
Initial staff review of Miami-Dade County 02-2 culminated in a August 5, 2002 memorandum (the "Pre-ORC Staff Analysis Memorandum") to the Chief of the Bureau of
Comprehensive Planning from a Senior Planner. The staff analysis is summarized in the memorandum:
Staff has identified two potential ... objections with the Krome Avenue (FIHS facility) segment[5] amendment concerning internal inconsistency with the CDMP objectives and policies, and lack of supporting data and analysis addressing public safety.
Joint Exhibit 11, p. 1.
With regard to the "safety" data and analysis, staff wrote, "the amendment is not supported with adequate data and analysis which demonstrates consistency with the CDMP policies which allow for capacity improvements outside the Urban Development Boundary (UDB) only upon showing the amendment is 'necessary' to address public safety." Id., p. 3.
The CDMP objectives and policies were summarized as
follows:
The corridor runs through Agriculture and Open Land use categories. In order to promote the agricultural industry, the CDMP clearly states, under its Agriculture land use category, facilities which support or encourage urban development are not allowed in the amendment area. The subject segment of the roadway currently runs north-south through an extensive area of active farmlands, except the northern portion between US 41 (SW 8th Street) and SW 56th Street which is designated as Open Land in the CDMP's FLUM.
The CDMP also states that Open Land designated land, is not simply surplus undeveloped land, but rather land that is
Id.
intended to serve for production of agriculture, limestone extraction, resource- based activity such as production of potable water supplies or other compatible utility and public facilities or rural residential development at no more than 1 du/5 acres.
The amendment area is also a prime candidate for conservation, enhancement of environmental character, and for acquisition by federal, state, regional, county or private institutions that would manage the areas for optimal environmental functions.
Beyond SW 8th Street to Okeechobee Road is the environmental and wellfield protection areas through which the upper Krome Avenue runs. One mile west of the segment is the Everglades National Park Expansion Area (Attachment 3) which is authorized by the Congress for federal acquisition.
Agriculture is the existing primary use of the corridor area as shown in (Attachment 4).
The concern with regard to inconsistency was expressed
in this way:
Id.
Staff is concerned that expansion of Krome Avenue will increase market pressure in the western MSA's within the UDB, resulting in the premature extension of the UDB. Staff concurs with County staff that the widening will cause appraisals to increase property values in the corridor, causing farmers to sell agricultural lands for urbanization.
It is also likely that property values will increase on environmental/open lands which should be maintained for water management, resource protection and other functions related to Everglades protection.
Within two weeks of the Pre-ORC Staff Analysis Memorandum, DCA issued the ORC Report. In a cover letter,
Bureau Chief Charles Gautier wrote the following synopsis of the ORC:
The Department is concerned that the widening of Krome Avenue or a segment of it will undermine the County's ability to control urban sprawl and impacts to agriculture and environmental lands. While we share concerns regarding accidents and fatalities on Krome Avenue, we recommend that the County fully evaluate all possible alternatives designs, including implementation of the FDOT 1999 Krome Avenue Action Plan, before considering the four lane option to address public safety.
Department staff is available to assist your staff as they formulate the County's responses to the objections and recommendations for the amendment.
Joint Exhibit 20, 1st page of the cover letter dated August 16, 2002.
Miami-Dade County responded to the ORC Report by clarifying its interpretations of provisions in the CDMP, particularly LUE 2B, and by providing additional data and analysis. Department staff struggled with the response, but ultimately concluded that Miami-Dade County's interpretations were defensible and recommended the Plan Amendment be found in compliance. See Joint Exhibit 16.
On December 18, 2002, the Department wrote to Miami- Dade County that it had determined the Plan Amendment to be in compliance. Accordingly, a Notice of Intent to determine the
Plan Amendment in compliance was published in the Miami Herald on December 20, 2002.
The Petition
After the issuance of the notice of intent by the state land planning agency (DCA) to find the Plan Amendment in compliance, this proceeding was initiated by the filing of a petition as allowed by Section 163.3184(9)(a), Florida Statutes. The petition was filed by Sierra Club and John S. Wade and joined by Intervenor, Monroe County.
The issues presented by the petition that remain after the parties entered a preheating stipulation filed with DOAH are stated in a section of the stipulation entitled, "D. Issues of Law and Fact That Remain to Litigated."
Material Issues of Ultimate Fact
While not exhaustive, the parties agree that the following are the major issues of disputed fact:
Whether the amendment is consistent with legal provisions concerning the discouragement of urban sprawl.
Whether the amendments will have a material impact on the agricultural industry in south Miami-Dade County.
Whether the amendments will have a material impact on the restoration of the Everglades.
Whether the plan amendments is necessary to address public health and safety and serve localized needs.
Issues of Law
Whether the Plan Amendment is in compliance.
Whether the Plan Amendment maintains the Plan's internal consistency and reflects the plans goals, objectives and policies, per 163.3177(2) Rule 9J-5.005(5)(a)&(b), F.A.C., specifically in regard to:
Transportation Element Policy 4C.
FLUE Policy 2B.
FLUE Policy 8F.
Transportation Element(TE) Policy 4C.
FLUE Policy 3B.
Whether the Plan Amendment is supported by data analysis as required by Sections 163.3177(6)(a), (8), and (10)(e), Fla. Stat. and Rules 9J-5.005(2) and (5), F.A.C.
Whether the Plan Amendment is inconsistent with Fla. Admin. Code Rules 9J- 5.006(5)(g)(1)-(10) and (13), and Rules 9J- 5.006(5)(h), (i), and (j)(6), (18), and (19) because it fails to coordinate future land uses with the appropriate topography and soil conditions, and the availability of facilities and services; ensure the protection of natural resources; and discourage the proliferation of urban sprawl.
Whether the Plan Amendment is inconsistent with Rule 9J-5.019(3)(d), (f), (i) and 9J-5.019(4).
Whether the Plan Amendment is inconsistent with Rule 9J-5.005(6), FAC because it fails to establish meaningful and predictable standards for the use and
development of land and fails to provide meaningful guidelines for the content of more detailed land development and use regulations that would prevent the urban sprawl and impacts to agricultural, rural and environmentally sensitive lands caused by the four-laning of Krome Avenue.
Whether the Plan Amendment is inconsistent with Sections 163.3177(6)(a)- (g), (8) & (10(e), Fla. Stat.
Whether the Plan Amendment is inconsistent with the Strategic Regional Policy Plan of the South Florida Regional Planning Council as a whole, and directly conflicts specifically with:
Strategic Regional Goal 2.1
(1) | Policy | 2.1.4 |
(2) | Policy | 2.1.10 |
(3) | Policy | 2.1.14 |
Strategic Regional Policy 2.2.1
Strategic Regional Policy 3.9.1
Whether the Plan Amendment is inconsistent with the State Comprehensive Plan as a whole, including:
Goal 15 (a) (LAND USE); Policy 15(b)1; Policy 15(b)6
Goal 16(a) & (b)(URBAN DOWNTOWN REVITALIZATION)
Goal 17(a) (PUBLIC FACILITIES);
Policy 17(b)1
Goal 19(a); Policy(b)12
Goal 22(a) & (b) (AGRICULTURE) Pre-hearing Stipulation, Section D.
The Parties
The Sierra Club is a national organization with close to 800,000 members. Qualified to do business in the State of Florida, 30,000 or so of the Sierra Club's members are in its Florida Chapter. About 2800 Sierra Club members live and work in Miami-Dade County where the Miami Group of the Florida Chapter of the Sierra Club holds regular meetings. The Miami Group is a "wholly owned subsidiary . . of the national organization." (Tr. 235) "[A]s opposed to some other organizations which may have separate chapters . . . separately
. . . incorporated in their local jurisdictions," the Miami Group, the Florida Chapter and the national organization of the Sierra Club "speak with one voice . . . ." Id.
Organized to explore, enjoy and protect particular places around the globe, to practice and promote the responsible use of the earth's ecosystem, to educate and enlist humanity to protect and restore the quality of the natural and human environment and to use all lawful means to carry out these objectives, the Sierra Club has taken numerous actions in support of restoration and preservation of the Everglades.
The Sierra Club has been involved on many occasions in growth management issues in different parts of the state. It is particularly concerned about public policy issues that affect Miami-Dade County, including increased urban sprawl, the loss of agricultural lands, clean water, clean air, open space, parks and recreation and the associated loss of quality of life.
A substantial number of Sierra Club members use areas surrounding Krome Avenue to recreate and regularly traverse the area on their way to the Everglades, Biscayne National Park, and Florida Keys National Marine Sanctuary as well as using the area for biking, hiking, bird watching, and picking tropical fruits and vegetables. A substantial number of members also regularly use and enjoy Everglades National Park and Florida Bay and use Krome Avenue en route to these destinations.
Representation of its members' interests in administrative proceedings to enforce growth management laws is within the corporate purposes of Sierra Club.
In keeping with its purposes, the Sierra Club commented to the Board of County Commissioners regarding the Plan Amendment between the time of its transmittal to DCA and its adoption.
John S. Wade, Jr., operates an interior foliage or a "container" nursery business at 20925 S.W. 187th Avenue "in the
center of the Redlands area," tr. 210, one mile due west of Krome Avenue.
Mr. Wade has been extensively involved in county planning issues for many years. A member of the Sierra Club, he is also an individual Petitioner in this proceeding. Mr. Wade commented to the Board of County Commissioners regarding the Plan Amendment between the time of transmittal to DCA and their adoption.
Mr. Wade believes that the Plan Amendment affects his interests in that it will have a negative impact on wildlife which he enjoys and on his nursery business.
The parties stipulated that Mr. Wade is an "affected person" with standing to bring and maintain this action under Section 163.3184, Florida Statutes.
Roads and Land Use: General Impact
Chapter 163, Florida Statutes, establishes an important link between planned road infrastructure and future land use decisions. The future transportation map, furthermore, plays a critical role in the future land use pattern of a local government, particularly with regard to roadways.
The impact of a road-widening amendment is relevant to land use or environmental policies. There is, moreover, no question that improved or expanded transportation infrastructure does nothing to diminish the potential for development in
surrounding areas as a general matter. In general, widening a roadway promotes development in surrounding areas served by the roadway. Growth management laws, therefore, generally discourage the provision of roadway capacity in areas where a local comprehensive plan discourages development.
The general principles of the effects of roadway capacity and improvements to roadway infrastructure, including road widening, are also reflected in the State Comprehensive Plan, the Regional Policy Plan, Florida Administrative Code Chapter 9J5, and the CDMP, itself.
Petitioners and Monroe County emphasize this point in the following paragraphs of their proposed recommended order now found as fact in this Recommended Order:
[]. Goal 19(a) of the SCP requires that future transportation improvements aid in the management of growth. Fla. Stat.
187.201(19)(a).
[]. Policy 19(b)(12) of the SCP requires that transportation improvements in identified environmentally sensitive areas such as wetlands be avoided. Fla. Stat.
187.201 (19)(b)(12).
The Regional Policy Plan states that "roadways also aid in attracting development to new areas." Jt. 7@ 36.
Rule 9J5 recognizes limits on extending infrastructure as a development control that can inhibit sprawl. Conversely, making improvements or extensions to infra- structure [when considered in isolation] can encourage urban sprawl. Darst V9@ 972.
The CDMP's data and analysis contains the following language:
Concepts and Limitations of the Land Use Plan Map: Coordinated- Managed Growth (p. I-59)
Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 7.
Miami-Dade County, the Department and the City of Homestead do not contend otherwise. In the words of
Thomas Pelham, distinguished expert in comprehensive planning whose testimony was presented by Miami-Dade County, the transportation map is "always relevant" (tr. 709) to issues of encouragement and discouragement of urban development.
Furthermore, as Miami-Dade County concedes and as Mr. Pelham testified, new roads and improvements in roadway infrastructure
"can aid in attracting development in new areas anywhere." Tr. 713 (emphasis supplied).
For that basic reason, if a local government adopts a plan amendment that increases roadway capacity and the intent is not to attract development to the area around the roadway, the local government may opt to adopt additional protective policies. For example, in such a situation, the local government could take a clarifying step toward discouragement of urban development in areas served by the roadway planned for improvement: simultaneous adoption of a policy that prohibits consideration of the additional planned capacity of a roadway in subsequent future land use map decisions.
Such an additional policy was not adopted as part of the Plan Amendment. In Mr. Pelham's opinion, however, it was not necessary, because of "the strong policies that already exist in the [CDMP]." Tr. 714. These strong policies include, of course, the existence of the UDB, a planning concept associated with Miami-Dade County in a unique manner in the State of Florida due to its strength and the length of existence over time. They also include CDMP policies related to lands designated as "Agriculture" or "Environmental Protection" whose purpose is to preserve and protect.
The impact of roads on land use patterns in general, moreover, does not necessarily translate into expected impact in
any specific case because of facts peculiarly associated with the specific case. As Mr. Pelham testified, "[t]here is absolutely nothing inconsistent with the four-lane divided highway in rural areas and agricultural areas. We have them all over the country, and in fact, you can identify numerous ones in this state alone." Tr. 676.
Three prominent examples in Florida of four-lane divided highways that have not led to development were provided at hearing: Alligator Alley (the segment of Interstate 75 known also as Everglades Parkway) that stretches nearly the width of the Florida Peninsula from Collier County not far from the City of Naples at its western terminus through Big Cypress National Preserve across the boundaries of the Miccosukee Indian Reservation and the Big Cypress Seminole Indian Reservation into Broward County on the east; the Florida Turnpike running from deep in South Florida northward and westerly to Wildwood in Sumter County; and Veteran's Parkway, US 19, from Pasco County to Crystal River "that goes through vast stretches of rural and agricultural lands . . . ." Tr. 677. The construction of these four-lane divided highways have not promoted urban development in lands immediately adjacent to significant sections of these highways.
That these highways did not promote urban development flows from their purpose. Their purpose, quite simply, is other
than to support urban development. Their purpose is to provide efficient commercial transportation and to be safe for the transportation of people or as expressed at hearing, "to be conduits for people to go from one [point] to another without interruption in an efficient manner." Id.
Furthermore, access to these rural, divided four-lane highways is restricted or tightly managed for several reasons. One of the benefits of restricted access is that it discourages urban development. While Miami-Dade County did not adopt a policy that a widened Krome Avenue was not to be taken into consideration in subsequent decisions to amend the future land use map, as Petitioners suggest it could have, New Transportation Policy 4E was added to the Plan Amendment in order to discourage urban development. That policy requires a detailed, binding controlled access plan for the Avenue corridor to be prepared by FDOT and adopted by Miami-Dade County prior to the commencement of any construction associated with four-laning or a capacity improvement.
Adoption of such an access control plan will have a deterrent effect on urban development along whatever part of Krome Avenue may at some point in the future be widened to four lanes. The effect of the adoption of a binding access control plan was explained at hearing by Mr. Pelham:
It means that most of the traffic on it is not going to be entering or leaving the highway to shop at retail commercial establishments or to go into office parks to work, or to frequent any of the other kinds of urban development that could spring up along the road.
It will be a deterrent to anyone who wants to seriously talk about locating a business there because they're going to realize that the public does not have readily easy access to it.
[New Transportation Policy 4E] will certainly help insure that [Krome Avenue] remains a primarily rural facility rather than the typical urban highway that's lined with urban development.
Tr. 679.
From a planning perspective, in addition to being an impediment to urban development, the New Binding Access Control Plan Policy is also a sufficient guideline to discourage urban development. Incorporation of the professional land planning concept of access control makes the policy clear to transportation planners and FDOT and to any party or entity called on to implement the plan especially when the last sentence of the new policy is considered: "[The binding access control plan] should emphasize access to properties fronting Krome Avenue primarily through alternative street locations." This sentence indicates that while access to Krome Avenue is not prohibited, access is to be governed by "a strictly limited access plan," tr. 681, a "strong benefit [of the Plan Amendment]
and a strong disincentive or deterrent to urban development." Tr. 679.
Urban Sprawl
Internal DCA memoranda and the ORC Report reflect a concern by Department staff that the re-designation of Krome Avenue could encourage urban sprawl with serious negative impacts to the Redland and agricultural lands and the Everglades and areas designated to be protected environmentally.
The concern of staff is not to be taken lightly. Re- designation of Krome Avenue as a Major Roadway with four-lane capacity will allow parties who seek to develop along Krome Avenue in the future to point to the new "planned" capacity as a factor in support of an amendment to the CDMP that would allow such development. "That's a . . . common argument for why a plan amendment . . . increasing densities in that area . . . [would be] appropriate." Tr. 494.
The planned roadway will be more than just fuel for argument. According to Charles Pattison, Petitioners' comprehensive planning expert with significant credentials and experience, the planned capacity increase is without doubt a "key factor," tr. 494-5, for consideration of decision-makers in support of future CDMP amendments that allow urban development.
Still, the existing policies that protect agricultural and environmentally sensitive lands, including the
UDB and related policies, will also have to be taken into consideration. So will the results of FDOT's PD&E Study and the actual improvement undertaken under the guidance of the study by FDOT, if any, and in whatever form it may take. The policies should not fail to protect agricultural and environmentally protected land merely because of this plan amendment. The policies will not cease to be operative because of the re- designation of Krome Avenue even if FDOT ultimately decides to improve Krome Avenue by widening all or part of it to four lanes.
Stated alternatively, in Mr. Pelham's words, existing policies "militate strongly against any urban development ... [outside] the urban growth boundary." Tr. 675. For this reason, among others, Mr. Pelham characterized the concerns of DCA staff and the fears of Petitioners, as "sheer speculation, suspicion and mistrust of . . . government . . . [of] a county that has a strong record of not extending its urban growth boundary." Id.
Furthermore, it must be kept in mind what the re- designation of Krome Avenue does and does not do. It does not constitute the ultimate decision or authorization necessary to widen or improve the capacity of Krome Avenue. It does not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land."
Tr. 671. It is that development which "would cause potential urban sprawl problems that might threaten agriculture, that, theoretically, might pose a danger to the Everglades." Id.
Development of that property would require plan amendments, vulnerable to challenges like this one and subject to scrutiny under the Growth Management Laws, Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J5. Amendment of the CDMP, therefore, to "allow widening of an existing road to address safety or congestion or level of service or evacuation problems, in and of itself, does not pose any of those threats or harms." Tr. 672.
Rule 9J5 Urban Sprawl Indicators
Urban sprawl is evaluated according to 13 "primary indicators" set forth in Florida Administrative Code Rule 9J- 5.006(5)(g) (the "Primary Indicator Rule.")
Applying the Primary Indicator Rule, the Department analyzes first, "within the context of features and characteristics unique to each locality" whether a plan amendment "trips" or "triggers" any of the 13:
Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need.
Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial
distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development.
Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments.
As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems.
Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils.
Fails to maximize use of existing public facilities and services.
Fails to maximize use of future public facilities and services.
Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government.
Fails to provide a clear separation between rural and urban uses.
Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities.
Fails to encourage an attractive and functional mix of uses.
Results in poor accessibility among linked or related land uses.
Results in the loss of significant amounts of functional open space.
Fla. Admin. Code R. 9J-5.006(5)(g). If a plan amendment trips or triggers one or more of the Primary Indicators, the Department then considers the extent to which the tripped indicators suggest that the amendment does not discourage the proliferation of urban sprawl, or put conversely, induces sprawl.
If the Department determines from review of the tripped indicators that the amendment does not discourage urban sprawl proliferation or in induces sprawl, then it turns its attention to the development controls in the comprehensive plan or in the proposed plan amendment. Evaluation of the development controls is made to determine whether they offset the amendment's inducement of urban sprawl. If the inducement is not sufficiently offset by development controls, then, the Department determines the amendment is not:
consistent with relevant provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, F.S., and the remainder of [Florida Administrative Code
Chapter 9J-5] regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources.
Fla. Admin. Code R. 9J-5.006(5)(a).
It is possible that if only a few of the 13 Primary Indicators were clearly "tripped" then a determination could be made that a plan amendment "does not discourage the proliferation of urban sprawl." Normally, however, if few primary indicators are tripped, "it's going to be a tough argument to make that [there is] sprawl inducement." Tr. 919.
The Department's Position re: Primary Indicators
The Department's position is that the Plan Amendment does not trip in any way 10 of the 13 primary indicators listed in the Primary Indicator Rule. The main reason they are not tripped, in its view, is because the amendment, in and of itself, does nothing more than plan for the improvement of Krome Avenue up to a capacity of four lanes. For example, the first primary indicator is whether the plan amendment "[p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need." Fla. Admin. Code R. 9J-5.006(5)(g)1. As Mr. Darst testified, "[T]his is an amendment for the widening of the road and it's
not a land use amendment." Tr. 913-4. In and of itself, the amendment does not allow or designate any development.
Primary Indicator 4 is not tripped because "premature or poorly planned conversion of rural land to other uses" is not at issue in this case.
An analysis of Primary Indicator 5 can only take place "within the context of features and characteristics unique" to Miami-Dade County, including the UDB and the protective policies of the CDMP and the Plan Amendment, itself.
Primary Indicators 9 through 13, are not tripped.
Primary Indicators 9 through 12 are not relevant to this case. Primary Indicator 13 is not tripped because although small amounts of functional open space might be taken for widening Krome Avenue, the amount would not be significant relative to the amount of functional open space adjacent to Krome Avenue.
Of the other three primary indicators tripped in the Department's view by the Plan Amendment, they are tripped only minimally. Primary Indicator 6 is tripped because with Krome Avenue widened "trips shift there from another road," tr. 916, so that maximum use is not made of the other road, an existing public facility. The same is true of Primary Indicator 7, which relates to future public facilities.
Primary Indicator 8 is tripped because funds will have to be expended to construct any widening and because of an
increase in law enforcement expenses. The involvement of Primary Indicator 8, however, is minimal and without significant impact.
Despite the Department's position, the re-designation of Krome Avenue, at a minimum, has at least the potential to "promote" development so as to trip Primary Indicators 1, 2, and
As Mr. Pattison testified, the planned increased capacity of Krome Avenue is, by the very nature of increased roadway capacity, a key factor for consideration of proposed amendments that would allow increased development of lands surrounding Krome Avenue.
Whether the Plan Amendment is not in compliance for failure to comply with urban sprawl requirements depends on whether the tripped Primary Indicators are offset by development
controls.
Development Controls
Florida Administrative Code Rule 9J-5.006(5)(j, (the "Development Controls Rule") states "[d]evelopment controls in the comprehensive plan may affect the determination in (5)(g) above," that is, whether a plan amendment does or does not discourage the proliferation of urban sprawl. Determination that urban sprawl indicators have been tripped, therefore, is not, standing alone, sufficient to find that a plan amendment fails to discourage urban sprawl.
The Development Controls Rule lists 22 types of development controls to be evaluated to determine how they discourage urban sprawl.
The CDMP contains development controls to discourage urban sprawl and development in areas designated Agriculture, Open Land or Environmental Protection. They are the UDB, see
Florida Administrative Code Rule 9J-5.006(5)(j)21., and the two policies related to it: Land Use Element Policies 8G and 8H.
Evaluation of the development controls in the CDMP leads to a determination that the tripped Primary Indicators, Primary Indicators 1, 2, and 3, triggered by the Plan Amendment's potential to promote development that could lead to urban sprawl and Primary Indicators 6, 7 and 8, all "minimally" tripped, are offset by the development controls.
Furthermore, the Plan Amendment, itself, contains additional policies that constitute development controls: the New Land Use Policies requiring super-majorities of the Board of County Commission for approval of re-designations near Krome Avenue and the New Binding Access Control Plan Policy. See Fla. Admin. Code R. 9J-5.006(5)(j)15. and 22.
Petitioners view the New land Use Policies as inadequate development controls because they do not set forth measurable or predictable standards to govern county commission decisions. Other than to require super-majorities for re-
designation of land uses near Krome Avenue ("procedural" standards), the New Land Use Policies do not contain standards that govern county commission decisions. But there are a plethora of standards elsewhere in the CDMP. These other standards have been determined to be meaningful and predictable and there is nothing in the New Land Use Polices that allows the commission to disregard them.
New Policy 4E which requires an access control plan prepared by FDOT prior to construction of any capacity improvement to Krome Avenue is viewed by Petitioners as "so vague as to fail to meet the definition of an objective or policy or to provide meaningful or predictable standards." Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 18. But a reading of the policy contradicts the
allegation.
Meaningful and Predictable Standards
Petitioners allege that the Plan Amendment is inconsistent with land use policies requiring coordination with the surrounding environment and requiring meaningful standards for more detailed regulations, and, therefore, that it is inconsistent with Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(6).
The CDMP contains meaningful and predictable restrictions on land use in areas designated Agriculture, Open
Land and Environmental Protection. The Plan Amendment does nothing to deter those restrictions. Furthermore, among new policies in the Plan Amendment is the addition of procedural safeguards to the substantive criteria, thereby strengthening the existing standards. The Plan Amendment, therefore, retains meaningful and predictable standards for more detailed regulation, and if anything, strengthens the chance for their application to protect lands designated Agriculture, Open Land and Environmental Protection.
Increasing Land Values and Speculation
Petitioners argue that widening Krome Avenue to four lanes will adversely affect farming in the Redland and the Everglades by increasing land values and speculation. These arguments do not take into account that regardless of improvements to Krome Avenue, most of the area north of 42nd Street has little appeal to developers. Its designation as Environmental Protection makes it difficult if not impossible to develop. Despite extreme development pressure elsewhere in the county, to date there has been little pressure to develop the area due to the success of the comprehensive plan, particularly its policies against development in the area. Asked at hearing about such pressure, Miami Dade County's Director of Planning and Zoning, Diane O'Quinn responded, ". . . I haven't seen it.
Not at all . . . because we've got very strong environmental policies in the comp plan." Tr. 625.
Furthermore, considerations of increasing values and land speculation are not compliance issues under Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5.
Were they compliance issues, there are other forces at work that are encouraging an increase in land values in the Redland: in particular, the economics of the agriculture industry and the increasing demand for residential housing throughout Miami-Dade County.
Agricultural uses in the County have been declining since Hurricane Andrew in 1992. Up to then, the predominant forms of agriculture had been row crops (tomatoes, for example) and lime, avocado and mango groves. Andrew destroyed many groves. They were not replanted because of expense and the length of time it takes from planting for the groves to bear fruit and increasing competition from foreign producers. Within a year or two of the hurricane, the North American Free Trade Act (NAFTA) was passed and produce from Mexico and Central America was introduced in great volume into U.S. markets. The south of the border competition generated by NAFTA, especially with regard to tomatoes and limes, reduced the value of the type of produce that had been predominant in the Redland prior to Andrew.
Ten years later, the University of Florida's Florida Agricultural Market Research Center in the Summary and Recommendations Section of its Miami-Dade County Agricultural Land Retention Study (the "Agricultural Land Retention Study") described the market for agricultural commodities produced in Miami-Dade County as "fiercely competitive," Joint Exhibit 55,
p. xiv, because of Latin American produce and predicted, "[e]conomic globalization and trade liberalization will continue. It is unlikely that the U.S. trade policy will be altered to any appreciable degree in the foreseeable future to protect domestic fruit and vegetable industries." Id. at xiii. Testimony at hearing established that these predictions have been accurate through the time of final hearing in late 2005.
The Study, completed in April 2002, also reached this conclusion:
Population growth and concomitant urban development appear inevitable for Miami-Dade County. Based on the capitalization of relatively low financial returns to agriculture in recent years, especially row crops, only about twenty-five percent of the current land prices is justified by returns to land in agricultural uses. The remaining seventy-five percent represents future anticipated value in non-agricultural or I agricultural residential use. Further, as supply of developable land dwindles, prices will undoubtedly increase. These price increases, if accompanied by chronically low financial returns to agriculture, will motivate landowners to convert to agricultural land to higher-valued uses.
Joint Exhibit 55. p. xiii. This observation continued to have validity more than three years later at the final hearing in this case in late 2005.
Following Andrew, land prices that had been stagnant for many years at $5,000 per acre or so increased three and four fold. The increases made it relatively expensive to buy land, plant and grow. The combined effects of Andrew and NAFTA reduced row crop and grove produce profitability. The agricultural industry shifted to ornamental horiculture nurseries. At the time of hearing, land prices had risen so much that even the nurseries whose products have been in demand for residential development have begun to become economically infeasible.
Soon after 1992, the SFWMD also began buying property for Everglades restoration projects west of a levee on the west side of Krome that runs parallel to the roadway. These purchases too increased land values in the area.
The recent rise in prices is also due to the low interest rate environment that began to have a wide-spread effect in early 2000. The low interest rate environment spurred demand for single-family homes. Furthermore, with the stock market decline that commenced in early 2001, investors began shifting from equities to real estate and demand for second
homes increased. Miami-Dade County's excellent weather attracts people from all over the world and this has fostered increased foreign investment in the local real estate market. The combination of all these events led to acquisition of land for residential development throughout Miami-Dade County by developers. The diminution in the amount of vacant residential land naturally turned the attention of developers to agricultural areas and to the Redland where density is limited to one hours per five acres. The increased demand for housing led to price escalation so that five-acre parcels in the Redland became relatively inexpensive.
The confluence of these factors accelerated the subdivision of agricultural properties into five-acre residential estates in the Redland. This trend began with Krome Avenue as a two-lane road and it is reasonably expected to continue, regardless of whether Krome is improved to four lanes or not.
The trend toward development of five-acre residential estates will likely stave off further urbanization of the Redland. As the area is developed at one house per five acres, it becomes difficult to reassemble acreage to create subdivisions of higher density.
For properties in the Redland that do not directly abut the road, the price of land is unrelated to Krome Avenue.
Rather, it is based on the increasing demand for five-acre estates.
The New Land Use Policies will likely restrain speculation based on the re-designation of Krome Avenue. One of the components of value is the probability of rezoning. Often much more important to land values are other factors: the land use plan designation and the history of land use in the surrounding areas. The planning and zoning restrictions, particularly in the light of the New Land Use Policies, send a signal to the market that the area around Krome Avenue is not slated for urbanization. The restrictions thereby limit increase in value and dampen speculation based on the potential widening of Krome Avenue.
The trend in converting agricultural lands to residential uses has been in the making in Miami-Dade County for at least 30 years. The interplay between the agricultural and housing markets is the result of far larger forces than whether Krome Avenue is re-designated for improvement up to a divided four-lane roadway making any such re-designation of minor impact. As Mark Quinlivan, an expert in the field of real estate valuation in particular with regard to the areas along the Krome Avenue Corridor and the Redland, summed up the situation at hearing:
So the trend is and has been for the last few years . . . to convert [the Redland] to five acre estates. Once they are converted to five acre estates and the homes are actually built, there is really not much else that can be done. Now you can't tear down the house and re-subdivide it if you could rezone.
. . . [W]hether you put Krome as two lanes, four lanes, six lanes this trend is way beyond this amendment . . .
Tr. 264.
Environmental Impacts
Although whether Krome Avenue will ever be improved to four lanes north of US 41, most of which crosses lands designated Environmental Protection depends on an environmental evaluation and other factors subject to an FDOT PD&E Study, it must be assumed for purposes of this compliance determination that it is allowed to be four lanes. The same assumption must be made for all of Krome Avenue subject to the Plan Amendment. Were a new plan amendment to be applied for, however, to re- designate land adjacent to Krome Avenue, road capacity would be a "minor" consideration because development control "policies in the plan are very strong and they're much more important and that would override the fact that there happens to be road capacity available." Tr. 737.
The County recognizes the importance of maintaining a buffer between urban development and the Everglades. This
recognition is reflected in CDMP policies. The CDMP, moreover, attempts to prevent the loss of environmentally sensitive lands.
In the 1990's Congress required the U.S. Army Corps of Engineers to develop a plan to reverse as much as possible the anthropogenic damage inflicted upon the Everglades. The result was CERP, a joint federal/state plan to restore the Everglades by completing sixty-eight individual projects by 2038 costing many billions of dollars.
Adopted by an Act of Congress in 2000, CERP directs the Corps to restore the Everglades using CERP as a guideline. With the exception of 10 of the projects authorized by the act, each of the other 58 individual CERP projects must undergo a specific process of planning and then Congressional authorization and appropriation.
There have been no Congressional authorizations since 2000. The 58 projects not authorized in 2000 still await final planning and design and Congressional authorization and appropriation.
Because of a design of Krome Avenue improvement has not been proposed, it is not possible to determine whether the widening of Krome Avenue will physically impact CERP projects.
The concern advanced by Petitioners is that improvement to Krome Avenue will not only decrease the
availability of land availability to CERP but will also raise land values.
The concern is appropriate because, in general, the primary strategy of CERP is the acquisition of privately-owned land to dedicate to water storage, wetland restoration, and other related uses. "Most [CERP] projects have land acquisitions as the single largest factor in their cost."
Tr. 415.
Escalating real estate costs is a significant issue for CERP project managers attempting to stay within budget. As land acquisition costs increase, it becomes more difficult to get adequate funding or even authorization of a project. Furthermore, the federal authorization law requires a re- authorization by Congress if projected initial costs are exceeded by more than 20 percent.
One of the critical aspects of CERP is water storage for which significant amounts of land must be acquired. There are numerous water storage restoration projects planned in the vicinity of Krome Avenue dependent on land acquisition.
Petitioners recognize, however, that there is a certain amount of speculation in any anticipation of a rise in land values in the area of Krome Avenue. "If widening Krome Avenue raises the value . . . of surrounding lands it will have an adverse affect on the success of the Everglades restoration
project." Petitioners and Intervenor Monroe County's Proposed Recommended Order, para. 95, p. 16 (emphasis supplied).
Furthermore, as found already, the rise is dependent on re- designation of lands in the area of Krome Avenue, which are subject to policies in the CDMP, such as the existing Conservation Element, that discourage re-designation in a manner that would stimulate a rise in land values.
It is sufficient for the CDMP to have policies that direct development to minimize impacts to environmental resources and guide the more detailed analysis that will be performed pursuant to the PD&E Study and further regulations. As Thomas Pelham explained:
The purpose of the comprehensive plan is to establish policies that will be applied to and will govern actual development proposals that come in under the plan.
It's not the purpose of a comprehensive plan to do a development permit level analysis.
You do that when development permits are applied for . . . until you have . . . a specific proposal for a road, actual alignment, design features, you can't really fully analyze the impacts of it, anyway.
. . . [T]he comprehensive plan . . . establish[es]] in advance policies that are reviewed for adequacy for protecting natural resources, the environment, so, that when someone comes in with an actual development proposal, then, it has to be evaluated in terms of the policies in the plan, and if
it's not consistent, the law requires that it be denied.
Tr. 686-7.
The existing Conservation Element and other CDMP policies that protect environmental resources adequately address the potential impacts of the Krome Avenue Amendment vis-à-vis the environment and environmental considerations.
South Florida Regional Policy Plan
Amendments must be consistent with the Strategic Regional Policy Plan (SRPP) in order to be in compliance.
§ 163.3184(1)(b), Fla. Stat.
SRPP Goal 2.1 is to achieve long-term efficient and sustainable development patterns by guiding new development and redevelopment into area which are most intrinsically suited for development. This includes areas where negative impacts on the natural environment will be minimal and where public facilities/services already exist, are programmed, or on an aggregate basis, can be provided most economically.
SRPP Policy 2.1.4 requires development to be directed away from environmentally sensitive areas.
Strategic Regional Goal 2.2 is designed to revitalize deteriorating urban areas.
SRPP Policy 2.2.1 requires priority for development in blighted areas characterized by underdevelopment/under- employment that are in need of re-development.
SRPP Policy 3.9.1 is designed to direct development and uses of land inconsistent with restoration away from Everglades and adjacent natural resources of significance.
State Comprehensive Plan
Section 187.101(3), Florida Statutes, states the following with regard to the construction of the State Comprehensive Plan:
The [state comprehensive] plan shall be construed and applied as a whole, and no specific goal or policy in the plan shall be construed or applied in isolation from the other goals and policies in the plan.
Petitioners do not ignore this provision of the statutes, citing to it in their proposed recommended order. See Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 41.
Petitioners contend that it is beyond fair debate that the Plan Amendment is inconsistent with the State
Plan as a whole and that it is specifically inconsistent with the following provisions in the State Plan:
LAND USE.--
Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to
provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner.
Policies.--
Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce.
Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats.
6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water and other natural resources to meet demands; and the potential for flooding.
URBAN AND DOWNTOWN REVITALIZATION.--
(a) Goal.--In recognition of the importance of Florida's vital urban centers and of the need to develop and redevelop downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas.
PUBLIC FACILITIES.--
Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for an
finance new facilities to serve residents in a timely, orderly, and efficient manner.
Policies.--
1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities.
TRANSPORTATION.--
Goal.--Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes.
12. Avoid transportation improvements which encourage or subsidize increased development in coastal high-hazard areas or in identified environmentally sensitive areas such as wetlands, floodways, or productive marine areas.
AGRICULTURE.--
(a) Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace.
Id. at pgs. 41-43.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57, and 163.3184(9), Fla. Stat.
Standing
Section 163.3184(9)(a), Florida Statutes, confers standing on "any affected person" to file a petition at DCA "[i]f the state land planning agency issues a notice of intent to find that the comprehensive . . . plan amendment . . . is in compliance with the [Local Government Comprehensive Planning and Land Development Act."
Section 163.3184(1)(a), Florida Statutes, the statute that governs the process of adoption of comprehensive plan amendments defines "affected person."
Respondents concede that both Petitioners Wade and Monroe County meet the definition of "affected person." See Respondent's PRO, pgs. 55-56. There is no dispute, therefore, between the parties that Petitioner Wade has standing to initiate this proceeding and that Monroe County has standing to intervene. Aside from the parties' positions, moreover, it is clear from the evidence that the two have standing to fill their respective roles in this proceeding.
Respondents and City of Homestead assert that Sierra Club's standing need not be addressed since the Petitioner Wade and Monroe County qualify as affected persons with standing. Id. The point is well taken. Had Sierra Club been determined not to qualify as an affected person, it would still be allowed to participate in this proceeding and to have its claims
addressed in this Recommended Order so long as Mr. Wade, a co- Petitioner, has standing to pursue the common interests of the two parties. Durham vs. Polk County, DOAH Case No. 03-0593GM (DOAH Feb. 24, 2004; Admin. Comm. June 25, 2004). In the Recommended Order in that case, conclusions of law addressed whether a citizens' group had standing in tandem with the conclusion that a co-Petitioner had standing. In the wake of a determination that the co-Petitioner had standing, the Administration Commission rejected the conclusions in the Recommended Order with regard to the citizens' group "because neither the Commission nor DOAH needs to exercise its jurisdiction to address that issue in order to resolve the substantive issues [in the case.]" Id. Final Order at 2.
Accord, Coalition for Adequacy and Fairness in School Funding,
Inc. v. Chiles, 680 So. 2d 400, 403 n.4 (Fla. 1996): "While we question the standing of [one plaintiff], we need not discuss that issue because of the standing of the other plaintiffs."
The Fairly Debatable Standard and Burden of Proof
This proceeding was initiated following the issuance by DCA (the "state land planning agency") of a notice of intent to find the Plan Amendment "in compliance" with the Local Government Comprehensive Planning and Land Development Regulation Act, (the Act.) The Plan Amendment, therefore,
"shall be determined to be in compliance if the local government's determination of compliance is fairly debatable,"
§ 163.3184(9)(a), Fla. Stat. (the "Fairly Debatable Standard.")
Petitioners correctly take pains to point out that the Fairly Debatable Standard governs the legal determination of whether the Plan Amendment is in compliance; it is not to be used to find facts. In this administrative proceeding, as in administrative proceedings that are not penal or do not involve licensure discipline (or have a different standard imposed by statute), facts are found based on a preponderance of the evidence. See § 120.57(1)(j), Fla. Stat. The Fairly Debatable Standard, on the other hand, is applicable to the ultimate legal determination: whether the Plan Amendment is in compliance as the term is defined in Section 163.3184(1)(b), Florida Statutes.
The Fairly Debatable Standard is defined neither in Chapter 163, Florida Statutes, nor in Florida Administrative Code Chapter 9J-5. The Supreme Court of Florida, however, in Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997), a case involving an amendment to a comprehensive plan, held that "[t]he 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." Citing to City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953), the Court elaborated on its definition of the Fairly Debatable
Standard applicable to "in compliance" determinations by writing, "[i]n other words, 'an ordinance [or the "compliance" status of an amendment to a comprehensive plan] may be said to be fairly debatable when for any reason it may be said to be open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity." Yusem.
The Fairly Debatable Standard places a heavy burden on Petitioners in their quest to have the Plan Amendment determined to be not in compliance.
The burden of proof is also on Petitioners: the party asserting the affirmative of the issue framed by the pleadings. That party in the proceeding normally has the burden of proof in an administrative proceeding. Florida Department of
Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). Which party has the burden is determined also by the statutory framework that governs the proceeding. See Young v. Department of Community Affairs, 625 So. 2d 831, at 834-845 (Fla. 1993). In light of J.W.C. and Young, infra, and the framework of this proceeding provided by Section 163.3184(9), Florida Statutes, it is Petitioners' burden to prove beyond fair debate that the Plan Amendment is not in compliance. The burden on Petitioners in this case is a heavy one.
Data and Analysis
There is adequate data and analysis of safety problems on the affected segment of Krome Avenue to support the Plan Amendment.
Despite their concession that there is a safety issue on Krome Avenue, Petitioners contend the data and analysis in this case are inadequate. The argument is based in part on the lack of necessity for the amendment summed up in the statement that "the safety issues are essentially irrelevant as a matter of law given FDOT's exclusive legal authority to plan and construct state roads." Petitioner and Intervenor Monroe County's Proposed Recommended Order, p. 29, Conclusion of Law 9. In other words, they contend FDOT has authority to go forward with a PD&E Study and to make safety improvements to Krome Avenue whether the Plan Amendment is in place or not. They point to Sections 338.001 and 335.02, Florida Statutes, as a basis for their position. In particular, Section 335.02,6 provides that FDOT establish standards for lanes on the FIHS, evaluate all alternatives and in conducting the analysis, give "consideration" to certain factors consistent with sound engineering principles. Those factors include:
(g) Compliance with state and federal polices related to . . . growth management
* * *
The future land use plan element of local government comprehensive plans, as appropriate, including designated urban infill and redevelopment areas.
The traffic circulation element, if applicable, of local government comprehensive plans . . . .
§ 335.02, Fla. Stat. The statute does not require FDOT to adhere to local government comprehensive plans. FDOT need only take them into consideration as it appears it has done with regard to the CDMP and Krome Avenue. Section 335.02(4) of the statute, however, makes clear that while FDOT has the discretion to consider a local government comprehensive plan in regard to improvements to the State Highway System, a plan has no application to control FDOT's decision when it comes to the system's existing or future transportation facilities or any appurtenances thereto:
(4) Notwithstanding any general law or special act, regulations of any county, municipality, or special district, including any instrumentality thereof, shall not apply to existing or future transportation facilities, or appurtenances thereto, on the State Highway System.
Thus, Petitioners are correct. Regardless of the stance of Miami-Dade County or the posture of its CDMP, the FDOT could proceed with a study and improvement to four lanes of all of Krome Avenue north of SW 256th St., if it so chooses.
State respect for local government is another matter.
It is quite plain that in exercising its discretion allowed by the statute to take into consideration the CDMP, FDOT has significant reluctance to move toward improvement of Krome Avenue by widening it without allowance of such capacity improvement by the CDMP. If Krome Avenue is to be improved, it appears and may be inferred from this record that the Plan Amendment or something similar to it that is acceptable to FDOT is a necessary pre-requisite to FDOT before the appropriate study and improvement by widening Krome Avenue will occur.
Furthermore, Petitioners' argument that the data and analysis do not support the Plan Amendment (because safety data is irrelevant if FDOT can proceed with improvement of the road in whatever way it sees fit without the Plan Amendment) is at odds with its assertion that:
[A]s a matter of law, compliance determinations must be based strictly on maximum impacts authorized by the amendment terms, not speculation of a lesser impact. Sheridan v. Lee County, 1992 WL 880138, 16
FALR 654, 688-689 (Admin. Comm. 1994)
Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 27, Conclusion of Law 2. There is no disagreement among the parties that there is a line of cases that hold when a future land use classification is proposed by an amendment to a comprehensive plan its compliance determination is to be
analyzed in terms of the maximum density or intensity allowed. Although that line of cases may not have been extended into infrastructure improvement, which is all the Plan Amendment entails according to Respondents, the parties agree that the "compliance determination in this case must be based on an assumption that Krome Avenue is allowed to be a four-lane road [under the Plan Amendment.]" See Tr. 733, Testimony of Thomas Pelham.
Thus, it is not the safety issues that are irrelevant, as asserted by Petitioners. What is irrelevant is whether or not FDOT has the authority to improve the roadway absent a plan amendment and whether FDOT will widen to four lanes all along the segment affected by the Plan Amendment or provide other improvements of lesser capacity. It must be assumed that FDOT will widen to four lanes the Krome Avenue segment subject to the Plan Amendment. The safety data and its analysis as reflected in the 1999 Krome Avenue Action Plan and the Kittelson Reports, on the other hand, are directly relevant to the Plan Amendment. They constitute data and analysis adequate to support it.
Internal Inconsistency
Section 163.3177(2), Florida Statutes, states that "[t]he several elements of the comprehensive plan shall be consistent "
Section 163.3187(2), Florida Statutes, states "[c]omprehensive plans may only be amended in such a way as to preserve the internal consistency of the plan pursuant to
s. 163.3177(2)."
Petitioners argue that the Plan Amendment's policy decision to allow the widening of Krome Avenue to four lanes fails to reflect the basic goals, objectives and policies in the CDMP. Petitioners allege internal inconsistency with CDMP Land Use Policy 2B and Traffic Circulation Policy 4C, which discourage the provision of facilities in areas outside the UDB except where necessary for public health and safety and to service the localized needs of the area; Land Use Policy 8F, which requires that amendments consider potential environmental impacts; and Land Use Policy 3B, which protects natural resources from incompatible land uses.
Petitioners further argue that the Plan Amendment is not necessary to protect public health and safety, and that it is thus inconsistent with both Land Use Policy 2B and Traffic Circulation Policy 4C. To the contrary, however, in this proceeding, the County presented sufficient evidence that the Plan Amendment is necessary for public health and safety. The Plan Amendment is consistent with the priorities for providing service and facilities set forth in these two policies.
Petitioners also argue that the Plan Amendment is inconsistent with the requirement that improvements serve the localized needs of the non-urban area because it will change Krome Avenue to a regional facility. Even in its current configuration as a two-lane rural highway, Krome Avenue is a regional facility. The Plan Amendment serves localized needs by providing the residents of the area with a safer and more effective regional thoroughfare and emergency evacuation route.
There is no inconsistency between the Plan Amendment and Land Use Policy 3B which governs land uses, not public facilities and services. The Plan Amendment does not change land uses or alter densities or intensities of land use. If the Plan Amendment has any effect on proposed changes in land uses or the likelihood of an increase in densities or intensities, it is to make them more difficult because of the New Supermajority Policies in the amendment. As the testimony showed the mere re- designation of Krome Avenue has no land use implications. See Tr. 668.
Because the Plan Amendment neither changes any land uses nor runs afoul of the strong development controls in the CDMP, it is not internally inconsistent.
There is one point made by Petitioners, however, that requires closer examination.
Traffic Circulation Sub-element Policy 4C provides that "Transportation improvements which encourage development in
. . . [a]reas designated Environmental Protection shall be particularly avoided."
Road improvements allowed by the Plan Amendment are a type of transportation improvement which generally encourage development. But, they do not do so invariably. The development controls in the CDMP, moreover, particularly the UDB, are an offset to any such encouragement. It is fairly debatable, therefore, as to whether or not the Plan Amendment constitutes the opening of the door to a path that will encourage development in the areas surrounding Krome Avenue that are designated Environmental Protection. Furthermore, it cannot be concluded to be beyond fair debate that the safety issues the Plan Amendment seeks to address are not compelling enough to override the proscription of Traffic Circulation Subelement Policy 4C with regard to lands designated Environmental Protection especially in the context of the CDMP which contains such strong policies with regard to such lands.
Environmental Impacts
Petitioners claim that the Plan Amendment is inconsistent with Sections 163.3177(6)(d) and 163.3178, Florida Statutes, because they do not meet planning requirements for conservation, use and protection of natural resources. In the
same vein, Petitioners claim that the Plan Amendment is inconsistent with the following provisions of Florida Administrative Code Rules 9J-5.006(3)(b)1., & 4., (4) and (6); 9J-5.011(2)(b)5 and (c)4.; and 9J-5.013(2)(c)3.,4.,5., & 9. and (3).
The CDMP currently meets the planning requirements for the conservation, use and protection of natural resources in the Land Use, Transportation and Conservation Elements, which direct incompatible land uses away from environmental resources and require, at a later development stage, that impacts be assessed in detail and be avoided or minimized.
Existing policies in the CDMP (in particular, Land Use Policies 8G and 8H), provide adequate protection against any adverse environmental impact that might arise from improvement of Krome Avenue allowed by the Plan Amendment. The New Land Use Polices and the New Binding Access Control Plan Policy provide additional protection.
Petitioners failed to prove beyond fair debate that the Plan Amendment is inconsistent with any of the cited provisions in the Florida Statutes or Florida Administrative Code Chapter 9J-5.
Urban Sprawl
Pursuant to Florida Administrative Code Rule 9J- 5.006(5) (the "Urban Sprawl Rule"), plan amendments must discourage the proliferation of urban sprawl.
To assist local governments in complying with this requirement, DCA has adopted a definition of "urban sprawl," and a general methodology for determining whether a plan amendment discourages the proliferation of urban sprawl. See Fla. Admin. Code R. 9J-5.006(134) and 9J-5.006(5).
The methodology first requires an analysis to determine the presence or absence of thirteen "primary indicators." Fla. Admin. Code R. 9J-5.005(g). Triggering a single indicator is insufficient to support a conclusion that the Plan Amendment fails to discourage urban sprawl. See Fla. Admin. Code R. 9J-5.006(5)(d): "The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl." (Emphasis supplied)
Contrary to Petitioners' claims that the Plan Amendment prioritizes westward expansion outside the urban services district, encourages urban development in agriculture and open land, exacerbates urban sprawl and is inconsistent with the Urban Sprawl Rule, the Plan Amendment merely allows for improved capacity of Krome Avenue up to four lanes. It does not
change any land uses or alter densities or intensities of land use. The New Land Use Policies make it more difficult to adopt such changes.
Based on DCA's adopted methodology, the Plan Amendment does not fail to discourage urban sprawl.
Meaningful and Predictable Standards
The existing CDMP provides meaningful and predictable standards for more detailed land development and use regulations. The Plan Amendment does not alter these standards. Petitioners have not proven beyond fair debate that the Plan Amendment is inconsistent with the requirements of Section 163.3177(6), Florida Statutes, or Florida Administrative Code Rule 9J-5.006(6).
Transportation Element
Petitioners failed to prove beyond fair debate that the Plan Amendment is inconsistent with any of the provisions in Florida Administrative Code Chapter 9J-5.
Strategic Regional Policy Plan
To be in compliance, the Plan Amendment must be consistent with the Strategic Regional Policy Plan.
§ 163.3184(1)(b), Fla. Stat.
Petitioners allege that the Plan Amendment is inconsistent with the following goals of the SRRP: Goal 2.1, regarding sustainable development patterns; Goal 2.2, regarding
the revitalization of deteriorating urban areas; and Goal 3.9 regarding preservation of the Everglades and policies that support these goals: SRRP Pol.s 2.1.4., 2.2, and 3.9.1.
The underlying arguments with regard to the SRPP are the same as those addressed with regard to internal consistency, environmental impacts and urban sprawl. For the reasons set forth in those sections, the Plan Amendment is not inconsistent with the SRPP. The Plan Amendment furthers two of the SRRP goals: 5.1, "To achieve mutually supportive transportation planning . . . that promotes mobility and accessibility in order to . . . promote safety"; and 5.2, "To enhance the regional transportation system's role in system-wide preparedness for emergency situations."
State Comprehensive Plan
Petitioners allege that the Plan Amendment is inconsistent with the following goals of the State Comprehensive Plan: Land Use Goals 15(a), (b)(1), and (b)(6); Urban and Downtown Revitalization Goals 16 (a) and (b); Public Facilities Goals 17(a) and (b)(1); Transportation Goals 19(a) and (b)(12); and Agriculture Goals 22(a) and (b). The arguments underlying these allegations are the same as those addressed to urban sprawl, environmental impacts and internal consistency.
The Plan Amendment allows safety and operational improvements to be made to an existing roadway. It does not
change any land uses and make changes to uses other than agriculture or environmental protection more difficult to approve. As such, it does not encourage development in non- urban areas. The Plan Amendment is not inconsistent with Land Use Goal 15, Urban and Revitalization Goal 16 or Agriculture Goal 22.
Nor is it inconsistent with Public Facilities Goal
By improving an existing regional thoroughfare and emergency evacuation route, the Amendment furthers the goal of "protect[ing] the substantial investments in public facilities that already exist . . . ." § 187.201(17)(a), Fla. Stat.
The Plan Amendment is not inconsistent with Transportation Goal 19. It furthers some policies relating to transportation: (6) "Promote timely . . . repair of roads . . . to enhance safety"; (9) "Ensure that the transportation system provides Florida's citizens and visitors with timely and efficient access to services, jobs, markets and attractions";
(11) "Emphasize state transportation investments in major travel corridors . . ."; and (13) "Coordinate transportation improvements with state, local and regional plans." See
§ 187.201(19)(b), Fla. Stat.
Ultimate Legal Conclusion
The Comprehensive Development Plan is a long-term look into the future of Miami-Dade County. The data and
analysis produced in this proceeding show that for the safety of travelers along the segment of the Krome Avenue corridor subject to the Plan Amendment there is a need for the CDMP to allow the improvement to the roadway to a divided four-lane roadway. It was reasonable for the Board of Miami-Dade County Commissioners to provide in the CDMP that a regional throughfare and emergency evacuation route that suffers from significant life-safety problems be widened up to four lanes.
If a local government adopts a comprehensive plan amendment that meets the criteria of the Local Government Comprehensive Planning and Land Development Regulation Act found in Part II of Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5, that decision is in compliance, even where some may view another decision as better when compared with the same criteria. The ability to make that choice is at the very core of the local legislative planning process.
The County determined that the Plan Amendment was necessary, that its potential benefits to public health and safety outweighed the potential harm, and that the existing development controls in the CDMP together with the New Land Use Policies and New Binding Access Control Policy adequately contained whatever impact the amendment might have on existing development pressures. That is a policy decision and one that
meets the Fairly Debatable Standard in a proceeding to determine whether the Plan Amendment reflecting the decision is in compliance with Growth Management Laws.
It is Petitioners' burden in this proceeding to prove beyond fair debate that the Plan Amendment is not in compliance. Petitioners failed to carry their burden.
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 that the October 2002 Plan Amendment to the Comprehensive Development Master Plan of Miami- Dade County adopted by the Board of County Commissioners for Miami-Dade County as reflected in Ordinance No. 02-198 be determined to be "in compliance."
DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida.
S
DAVID M. MALONEY
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 16th day of June, 2006.
ENDNOTES
1/ Application No. 16 was but one of several applications that were granted as part of the amendment to the CDMP the Commission adopted in Ordinance 02-198. It is the only part of the amendment challenged by Petitioners. For ease of reference, it is referred to as the Plan Amendment.
2/ For the sake of ease of reference, the term "Petitioners" as used in this order, therefore, refers to Sierra Club, Mr. Wade and Intervenor Monroe County.
3/ Likewise, for ease of reference, DCA, Miami-Dade County and Intervenor City of Homestead may be referred to in this order as "Respondents." Miami-Dade County, referred-to individually, may be referred to as "County;" Monroe County, individually, will be referred-to by its full name to distinguish it from Miami-Dade County.
4/ The Krome Avenue segment with which DCA's initial review was concerned did not include the entire segment of Krome Avenue ultimately subject to the re-designations produced by the Plan Amendment. The segment initially reviewed is between SW 8 Street (US 41/Tamiami Trail) and SW 184 Street (Eureka Drive.) Added later through revision following issuance of DCA's ORC Report were a segment north of SW 8 Street up to US 27 a corridor in areas of Environmental Protection and a segment that runs south of 184 Street to SW 296 Street (Avocado Drive).
Initial review, therefore, found inconsistency with CDMP Policies related to Open Land and Agriculture categories but not Environmental Protection categories even though concerns were raised by staff about property value increase "on environmental/open lands which should be maintained for water management, resource protection and other functions related to Everglades protection." Joint Exhibit 11, p. 3.
5/ The statute that mandates FDOT to plan and develop the FIHS.
6/ Stipulated by the parties in the Pre-hearing Stipulation to establish FDOT's authority to designate transportation facilities for the FIHS and to govern the application of local regulations to state roads.
COPIES FURNISHED:
Thaddeus Cohen, 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
Richard Grosso, Esquire
Environmental and Land Use Law Center, Inc. Shepard Broad Law Center
Nova Southeastern University 3305 College Avenue
Fort Lauderdale, Florida 33314
Robert N. Hartsell, Esquire
Environmental and Land Use Law Center, Inc. Northern Everglades Office
330 U.S. Highway 1, Suite 3 Lake Park, Florida 33403
Dennis A. Kerbel, Esquire Craig H. Coller, Esquire
Miami-Dade County Attorney Office Stephen P. Clark Center
111 Northwest First Street, Suite 2810 Miami, Florida 33128-1993
Richard E. Shine, Esquire David L. Jordan, Esquire
Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Nina L. Boniske, Esquire
Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.A.
2665 South Bayshore Drive, Suite 420
Miami, Florida 33133
James E. White, Esquire
Weiss, Serota, Helfman, Pastoriza, Cole & Boniske, P.A.
3107 Stirling Road, Suite 300 Fort Lauderdale, Florida 33312
Derek V. Howard, Esquire Morgan & Hendrick
317 Whitehead Street
Key West, Florida 33040
Jerry D. Sanders, Esquire Monroe County Attorney's Office
502 Whitehead Street Courthouse Annex, Third Floor Key West, Florida 33040
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. 12, 2006 | Agency Final Order | |
| Jun. 16, 2006 | Recommended Order | The amendment to Miami Dade County`s Comprehensive Development Master Plan that allows Krome Avenue to be widened to four lanes is "in compliance." |
