STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ELLEN MONKUS, JAMES VEBER, and ) GONZALO DE RAMON, )
)
Petitioners, )
)
vs. )
)
CITY OF MIAMI, )
)
Respondent, )
)
and )
) RAD MIAMI RIVER-PHASE I, LLC, ) and RAD MIAMI RIVER-PHASE II, ) LLC, )
)
Intervenors. )
Case No. 04-1080GM
)
RECOMMENDED ORDER
Notice was given and on July 7 through 9, 2004, a final hearing was held in this case. Pursuant to Sections 120.569, 120.57(1), and 163.3187(3)(a), Florida Statutes (2003),1 the final hearing was conducted by Charles A. Stampelos, Administrative Law Judge, in Miami, Florida.
APPEARANCES
For Petitioners Ellen Monkus, James Veber, and Gonzalo De Ramon:
Andrew W. J. Dickman, Esquire Odelsa D. McConnell, Esquire
Law Offices of Andrew Dickman, P.A. 9111 Park Drive
Miami Shores, Florida 33138-3159
For Respondent City of Miami:
Rafael Suarez-Rivas, Esquire City of Miami
Miami Riverside Center, Suite 945
444 Southwest Second Avenue Miami, Florida 33130-1910
For Intervenors RAD Miami River–Phase I, LLC, and RAD Miami River-Phase II, LLC:
Paul R. Lipton, Esquire Greenberg Traurig, P.A. 1221 Brickell Avenue
Miami, Florida 33131-3224 and
David C. Ashburn, Esquire Greenberg Traurig, P.A.
101 East College Avenue Tallahassee, Florida 32301-4472
STATEMENT OF ISSUES
Whether the Small Scale Comprehensive Plan Amendment No. 2003-03 (Plan Amendment) to the City of Miami Future Land Use Map (FLUM), adopted by Ordinance No. 12492, is "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes, and whether Petitioners have standing as “affected person[s]” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
PRELIMINARY STATEMENT
On February 26, 2004, the City of Miami (City) amended its FLUM by the adoption of Ordinance No. 12492. This Ordinance changes the designated future land use from “Industrial” to
“Restricted Commercial” for a 6.31-acre parcel of property located on the Miami River at 1007 Northwest 7th Street in Miami, Florida.
On March 26, 2004, Petitioners filed a Petition Challenging Compliance of Small-Scale Comprehensive Plan Amendment with the Florida Growth Management Act (Petition) with the Division of Administrative Hearings (Division) pursuant to Section 163.3187(3), Florida Statutes. Petitioners sought to contest the City’s FLUM Plan Amendment on the grounds that the Plan Amendment is inconsistent with several provisions of the City’s adopted Comprehensive Plan (Comprehensive Plan), and is not in compliance with Section 163.3177(2) and (6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2).
On or about April 12, 2004, Royal Atlantic Developers, LLP (Royal) filed an unopposed Petition to Intervene, and was granted the right to intervene in this case in support of the City.
On April 23, 2004, an Order of Pre-hearing Instructions and Notice of Hearing setting the final hearing set for July 7 through 9, 2004, in Miami, Florida, were entered.
On April 23, 2004, Royal filed a Motion to Amend Petition to Intervene, which was granted on April 26, 2004. Intervenor’s name was changed to RAD Miami River-Phase I, LLC, and RAD Miami River-Phase II, LLC (RAD).
Also on May 17, 2004, RAD filed a Motion for Partial Summary Final Order, which was joined in by the City at a later date.
On May 19, 2004, an Order was issued indicating that RAD’s Motion for Partial Summary Final Order would be treated as a motion in limine.
On June 25, 2004, Petitioners filed a response to RAD’s motion.
On June 28, 2004, a telephone hearing was held on RAD’s motion. After hearing argument of counsel, RAD’s motion was denied without prejudice.
On July 6, 2004, the parties filed their joint Pre-Hearing Stipulation. RAD also filed a Motion for Recommended Order of Dismissal. On the same day, Petitioners filed their response to RAD’s Motion for Recommended Order of Dismissal.
On July 7 through 9, 2004, the final hearing was held in Miami, Florida.
Petitioners called Dr. Ellen Monkus; James Veber;
Gonzalo De Ramon; Ana Gelabert-Sanchez, the City’s Director of the Planning and Zoning Department; Brett Bibeau, Managing Director of the Miami River Commission; Herbert Payne, a tugboat captain on the Miami River; Francis M. Bohnsack, Executive Director of the Miami River Marine Group; and Jack Luft,
A.I.C.P., an expert in land use planning. Petitioners’ Exhibits
1 through 5 were admitted into evidence.
RAD called Guillermo Olmedillo, A.I.C.P., an expert in land use planning. RAD’s Exhibits 1 through 6 were admitted into evidence.
The City called Lourdes Slyazk, Assistant Director of the City’s Planning and Zoning Department and an expert in land use planning. The City’s Exhibits 1 and 2 were admitted into evidence.
Joint Exhibits 1 through 5 were admitted into evidence.
The Transcript (Volumes I through V) of the final hearing was filed with the Division on August 2, 2004. Petitioners filed a Proposed Recommended Order, and RAD and the City filed a Joint Proposed Recommended Order and a Memorandum Of Law in a timely fashion. All post-hearing submissions have been considered in preparing this Recommended Order.
FINDINGS OF FACT
Background
The Parties
Petitioners, Dr. Ellen Monkus, James Veber, and Gonzalo De Ramon, reside in Spring Garden, a historic neighborhood located within the City of Miami, across the Miami River and to the north of the property subject to the Plan Amendment. Petitioners do not own or operate a port facility,
or property on which a port facility is located or property that falls within the definition of “Port of Miami River” found in the City’s Comprehensive Plan. See Finding of Fact 53.
Petitioners do not own property within the East Little Havana neighborhood. Petitioners are members of the Spring Garden Civic Association (Association) and Mr. Veber is the president of the Association. Dr. Monkus is a physician and retired from the University of Miami School of Nursing. Mr. De Ramon is a senior vice president for community development for Bank of America; a board member of the Miami-Dade Affordable Housing Advisory Board; and the chair of the Housing Committee for the Homeless Trust. Petitioners are “affected person[s]” and have standing to participate in this proceeding. See Findings of Fact 26-31.
The City is a political subdivision of the State of Florida. The City initially adopted its Comprehensive Plan in 1989, and it was most recently revised in April 2004.
RAD owns the 6.31-acre parcel (the Property), which is subject of the Plan Amendment. RAD submitted comments to the City at both City Commission hearings held on January 22, 2004, and February 26, 2004. RAD is an “affected person” and has standing to participate as a party in this proceeding.
The Property
The parties stipulated that the Property is located on the south side of the Miami River in the East Little Havana neighborhood.2 The Property is situated on the part of the Miami River known as the “middle river.” See Finding of Fact 35.
The Property is bordered by Northwest 7th Street and South River Drive to the south, a Dade County maintenance facility and a fire station to the west, and a marine maintenance facility to the east. See Intervenors’ Exhibits 1 and 2, for two photographs and identifications of the surrounding area.3
The Property has been vacant for at least ten years.
The Property was designated “Industrial” on the City’s FLUM prior to the challenged Plan Amendment, which changed the land use to “Restricted Commercial.” See Endnote 4.
Across the Miami River to the north are “Medium Density Multifamily” and “Single Family Residential” land use designations where the Petitioners reside.
The Small Scale Plan Amendment Application
On or about November 4, 2003, RAD’s predecessor in interest filed with the City an application (Application), requesting a change in land use designation for the Property from “Industrial” to “Restricted Commercial” by amending the FLUM of the Comprehensive Plan.4 The Application was submitted
at the same time as applications for a zoning change and a major use special permit (MUSP), because RAD intends to develop a mixed-use project (the Development Project) on the Property. As stipulated, the Application included all items required by all applicable statutes and ordinances for the requested Plan Amendment.
Prior to the submission of the land use change Application, the Miami River Commission (MRC) and the Miami River Commission Urban Infill Working Group and Greenways Subcommittee (MRC Subcommittee) reviewed the Development Project.5 The composition of the MRC (18 members) is determined by Section 163.06, Florida Statutes, and includes a neighborhood representative from Spring Garden, the Chair of the Miami River Marine Group, and the Chair of the Marine Council. The MRC acts only in an advisory capacity to the City on issues affecting the Miami River. The MRC provides the Commission with “an official statement” on items impacting the Miami River.
When the MRC reviews proposed projects, it determines only if the projects comply with the Miami River Greenway Action Plan6 and the Miami River Corridor Urban Infill Plan (UIP),7 which is the MRC’s strategic plan. Although adopted by the MRC in 2002, the UIP has not been adopted by the City and is not binding on the City’s decisions.
After reviewing the Development Project, the MRC Subcommittee voted to recommend to the MRC that it be approved, subject to conditions to which RAD agreed.
Upon receiving the MRC Subcommittee’s recommendation, the MRC unanimously (of the members present) voted to recommend approval of the Development Project based on the findings that it is consistent with the UIP and the Miami River Greenway Action Plan (Greenway Plan). The Greenway Plan is incorporated into the UIP, but is a separate plan. See Endnote 6.
The MRC submitted a letter, which reflected its recommendation, to the City’s Planning and Zoning Department (P&Z Department) and presented its recommendation to the Commission at the Commission’s January 22, 2004, and February 26, 2004, meetings.8
The P&Z Department reviewed the Application and presented its analysis and favorable recommendation to the City’s Planning Advisory Board (PAB).
On December 17, 2003, after a public hearing, the PAB voted to recommend approval of the land use change.
The Application was presented to the Commission at public hearings held on January 22, 2004 (“First Reading”), and February 26, 2004 (“Second Reading”), (collectively the Commission Hearings), at which time the P&Z Department provided its written analysis and recommendation for approval of the
Application.9 (The application for the zoning change was also presented to the Commission on January 22, 2004. On
February 26, 2004, the Commission also considered the Plan Amendment, the zoning change, and the MUSP application.)
The P&Z Department’s recommendation for approval of the Plan Amendment took into consideration that “the change to ‘Restricted Commercial’ is also a logical designation and will allow greater flexibility in developing the property in a manner that will be beneficial to the surrounding area.” The analysis also stated that “the existing land use pattern in this neighborhood should be changed” because, in part, the Plan Amendment “promotes and facilitates economic development and growth of job opportunities in the City” under Goal LU-1 and “encourage[s] a diversification in the mix of d [sic] commercial activities” under Policy LU-1.3.6.
The analysis concluded by stating that the “Concurrency Management Analysis pertaining to concurrency demonstrates that no levels of service would be reduced below minimum levels” due to redevelopment of the Property, as required by Land Use Policy 1.1.1. See Finding of Fact 42.
The Commission voted to approve RAD’s request for a land use change at both the First and Second Readings and adopted Ordinance No. 12492, which amended the FLUM. (The Commission also approved the zoning change and the MUSP.)
The Challenge
Petitioners challenge the internal consistency of the Plan Amendment with certain goals, objectives, and policies of the Comprehensive Plan and the sufficiency of data and analysis to support the Plan Amendment.
Standing
Introduction
RAD and the City contend that Petitioners lack standing to maintain this proceeding, because they do not qualify as “affected person[s]” as defined by Section 163.3184(1)(a), Florida Statutes.
Petitioners reside in Spring Garden, a historic neighborhood in the City of Miami, located across the Miami River and to the north of the Property. RAD and the City, however, assert that Petitioners failed to submit oral or written comments, recommendations, or objections “during the period of time beginning with the transmittal hearing for the plan amendment and ending with the adoption of the plan amendment.” § 163.3184(1)(a), Fla. Stat. The prescribed time period will be referred to as the “Comment Period.”
Comment Period
The parties agree that the Comment Period ended on February 26, 2004, the date on which the Commission voted to
adopt the Plan Amendment, but disagree as to the beginning date of the Comment Period.
The Commission holds two publicly noticed hearings for small scale amendments, because the City uses ordinances as the means by which small scale plan amendments are implemented.
The Department of Community Affairs (Department) does not review or issue a notice of intent regarding small scale plan amendments. § 163.3187(3)(a), Fla. Stat. The Comment Period commenced at the first of those hearings—the First Reading.
Petitioners’ Comments, Objections, and Recommendations
As noted, on January 22, 2004, the Commission held its First Reading on the land use change and the zoning change. See Intervenor’s Exhibit 5. Mr. Dickman advised that he was “representing the neighborhood of Spring Garden” regarding the two items. Prior to presenting the testimony of two witnesses, Mr. Dickman further advised that he was “representing Spring Garden Civic Association.”
The Commission’s Chairman advised that both items were on the agenda and that Mr. Dickman would technically be entitled to two presentations, but that normally “everybody comes up and says what they’ve got to say on both” and this was understood by Mr. Dickman.
Mr. Dickman put into the record approximately over 100 signatures collected from neighbors and appears to reflect, in
part, residents on the north side in Spring Garden and south of the Miami River. These signatures appear to be part of Petitioners’ Exhibit 2, including Petitioners’ Exhibit 1, a one- page sheet including the name and signature of Mr. De Ramon.
The signatories opposed the requested MUSP, the land use amendment, and the re-zoning to allow the construction of the project. In particular, the “Petition in Opposition” states in part: “The proposed height and bulk of this project is out of scale with the single family and low density character of the Historic Spring Gardens Neighborhood and surrounding
areas . . . .” It does not appear that Petitioners, Dr. Monkus and Mr. Veber signed the Petition, although each Petitioner testified during the First Reading and Mssrs. Veber and De Ramon testified during the Second Reading. During the Second Reading, Mr. Dickman announced that he was “representing the homeowners in Spring Garden.” During both hearings, Mr. Dickman opposed the Development Project and the MUSP, the zoning change, and the land use change.
During the final hearing, Mr. De Ramon stated that he had legal representation at the First and Second Readings. It is a fair inference that he was referring to Mr. Dickman.
Mr. Veber states that he retained Mr. Dickman to represent him at the Second Reading.
During both hearings before the Commission, Petitioners’ objections and comments mainly addressed the following issues: RAD’s alleged failure to demonstrate hardship based on the current land use; the Development Project’s design, height, and density; the alleged need for mixed income housing in the neighborhood; “gentrification”; traffic; alleged light pollution; Petitioners’ contention that the Property’s zoning should be low-density residential; Petitioners’ contention that the Property should be used as a senior residential community or park; RAD’s sound study; the Development Project’s feasibility analysis; and the increase in neighborhood property values.
Based upon the weight of the evidence and fair inferences to be derived from the evidence, it is concluded that Petitioners made comments, objections, and/or recommendations regarding the Plan Amendment during the Comment Period.
Data and Analysis
Petitioners contend that the Plan Amendment is not in compliance with Florida Administrative Code Rule 9J-5.005(2), because the Plan Amendment is not based on relevant and appropriate data, which was collected and applied in a professionally acceptable manner. Petitioners argue that the Plan Amendment is inconsistent with Section 163.3177(6)(a), Florida Statutes, because there is insufficient data and analysis to support the Plan Amendment.
Petitioners did not prove that the data and analyses considered by and available to the City in approving the Plan Amendment was insufficient to support approval of the plan Amendment. See Conclusions of Law 92-96. Moreover, approval of the Plan Amendment is supported by substantial data (in existence at the time the Plan Amendment was adopted) and appropriate analysis.
Approval of the Plan Amendment is consistent with the City’s analysis of the location of the Property and the surrounding neighborhood.
The Property is located on the lower part of the “middle river,”10 close to downtown, and is situated near public transportation, the City’s major employment areas, and the Civic Center.11 The Civic Center, which includes medical facilities and the Criminal Justice Center, is near Northwest 12th Avenue and north of and close to the Miami River. The Property is east of Northwest 12th Avenue and south of the Miami River.
The Property is located within an area designated by the City for urban infill. The UIP specifically designates the Property (within the middle river) as an urban infill site, which means that the Property is considered “ripe” for redevelopment. (The Property’s urban infill designation post- dates the 1992 Miami River Master Plan.)
Urban infill is also part of the “Eastward Ho” planning concept, which encourages urban infill growth where there is sufficient infrastructure to support it. (The “Eastward Ho” program was created by the Department to encourage a philosophy of development that the City has embraced, although it is not a part of the Comprehensive Plan.) Urban infill is encouraged in order to prevent further westward urban sprawl, which results in over-development in the suburbs, impacting the roadways and the environment.
Urban sprawl may occur when land is developed at a very low density, i.e., by using significant parcels of land for a limited number of activities, which, in turn, may yield an inefficient use of land and infrastructure. It was not proven that the Plan Amendment is urban sprawl or will lead to the proliferation of urban sprawl. Also, Petitioners did not prove that there is an over-allocation of residential land uses in the City. See Sierra Club, infra, Final Order at 9-10.
Eastward Ho promotes the return of residents to the City and encourages residential, commercial, and retail redevelopment in the City.
Properties that are especially appropriate for urban infill are those that are vacant, underdeveloped, underutilized and/or blighted and are located near public facilities, major employment areas, and transportation. Such properties are
considered ideal for mixed-use development of residential and commercial uses, which promote efficient use of public facilities. Land designated as Industrial may be used in a manner that promotes the increased employment opportunities goal of the urban infill concept, but, by definition, it is not likely to be used in a manner that would meet other goals of urban infill such as the promotion of mixed-use projects that also include residential development and promote efficient use of public facilities.
The Property’s location is suitable for urban infill because it is near public transportation, it benefits from natural amenities afforded by being on the Miami River, and it is located in an area that the City is trying to revitalize. Furthermore, the Property is not currently used for marine industrial purposes; indeed, it has long been vacant.
The Plan Amendment was also subjected to a concurrency management analysis, the purpose of which was to determine whether existing public facilities are sufficient to support the levels of additional development permitted under the Restricted Commercial land use designation sought by RAD. See City’s Exhibit 2. The result of the concurrency management analysis (which included consideration of the potential demands on the City’s roadways, potable water supplies, sanitary sewer transmission systems, storm sewer capacity, and solid waste
capacity) was a determination that potential development of the Property under the Restricted Commercial designation would not cause a breach of the LOS standards applicable to the City’s facilities and resources.
The City’s analysis of the Plan Amendment also included consideration of the MRC letter of recommendation, City planning staff’s general knowledge of the UIP, the Miami River Master Plan,12 and a housing shortage in the City identified by a quasi-City agency known as the Downtown Development Authority.
The Applicant prepared an economic impact analysis, which was in existence at the time the City considered the Plan Amendment.13
Leaving a piece of property vacant in hopes that in the future it can be used with its current land use designation is not supported by good planning principles.
Petitioners’ expert, Mr. Luft, stated that a high- density residential land use is not necessarily incompatible with marine industrial uses-“[t]hey can co-exist,” depending on how the project is developed. But, Mr. Luft opined that the Plan Amendment is inappropriate and inconsistent with the Port of Miami River goals, objectives, and policies referred to herein, because approving a potential high-density residential land use next to an industrial use, creates uncertainty as to how the marine industry will be protected, necessarily creating
an “incompatible environment.” Nevertheless, Mr. Luft also testified that Restricted Commercial is one of a number of reasonable land use designations to consider for the Property. He also agreed that the middle river could support a mixed-use development of residential and commercial that could serve the needs of the neighborhood. Further, Mr. Luft concurred that the City should consider what is beneficial for the City as a whole.
Internal consistency
Background
In general, Petitioners allege that the Plan Amendment is inconsistent with Section 163.3177(6)(a), Florida Statutes, because no goals, objectives, or policies of the Comprehensive Plan supplement the Plan Amendment and that the Plan Amendment is inconsistent with several provisions of the Comprehensive Plan discussed below. Petition at 7.
The FLUM “is a planning instrument designed to guide the future development and distribution of land uses within the city in a manner that is consistent with the goals, objectives and policies of the Miami Comprehensive Neighborhood Plan (MCNP). The [FLUM] is a generalized map that does not depict areas less than 2 acres.”
There are numerous goals, objectives, and policies within the Comprehensive Plan that supplement the Restricted Commercial land use designation sought by RAD. See, e.g., Joint
Exhibit 1, Goal LU-1, Objective LU-1.3, Goal LU-3, and supporting Policies.
Petitioners did not prove that the Plan Amendment is inconsistent with the goals, objectives, and policies in the Comprehensive Plan cited by Petitioners.
Port of Miami River Element
Petitioners contend that the Plan Amendment is inconsistent with Objective PA-3.1, Policy PA-3.1.1, Policy PA 3.1.2, Policy PA-3.1.3, Objective PA-3.3, Policy PA-3.3.1, and Policy LU-1.3.1, because the Plan Amendment “allows the encroachment of the High Density Multifamily Residential land use into a heretofore Industrial land use reserved for the Port of Miami marine related industries.” Petition at 8.
Petitioners further allege that the Plan Amendment does not comply with Section 163.3177(2), Florida Statutes,14 because the Plan Amendment is inconsistent with the Comprehensive Plan goals, objectives, and policies which are aimed at retaining the current land use designation of Industrial on those properties along the Miami River intended for marine industrial use. Petition at 7.
“Port of Miami River” is a defined term, which includes approximately 14 privately-owned shipping companies that were in existence at the time that the Comprehensive Plan was adopted.15 All of the goals, objectives, and policies use
the defined term Port of Miami River. Thus, these goals, objectives, and policies apply solely to that defined term.
The Port of Miami River definition refers to “companies” because those companies needed to be legally defined as a port in connection with U.S. Coast Guard regulations. Nevertheless, the Port of Miami River is not a publicly run port. (Mr. Olmedillo and Ms. Slazyk opined that the Port of Miami River is not a land use element, i.e., there is no land use designation in the FLUM referring to Port of Miami River.)
At the time that the Comprehensive Plan was adopted, a private shipping company did not own the Property, nor was it used for marine industrial purposes. Instead, it appears that the Miami News occupied the Property.
Based on an examination of the Certificates of Use maintained in the City’s public records and other evidence of record relative to the Property, it does not appear that the Property has ever been owned by any of the shipping companies operating on the Miami River at the time of the City’s adoption of the Comprehensive Plan.
Objective PA-3.1 and Policies PA-3.1.1, PA-3.1.2, and PA-3.1.3 in the Port of Miami River Element of the Comprehensive Plan require the City to take certain actions through its “land development regulations” (LDRs). LDRs are zoning ordinances,
which implement the Comprehensive Plan. See Joint Exhibit 1, “Interpretation of the Future Land Use Plan Map.”
With respect to Objective PA-3.3, no persuasive evidence was presented regarding the City’s Port of Miami River planning activities or the Plan Amendment’s alleged inconsistency with the City’s obligation to coordinate its Port of Miami River planning activities with other agencies.
Regarding Policy PA-3.3.1, Petitioners offered no persuasive evidence on the subject of the City’s Intergovernmental Coordination Policies with respect to the Port of Miami River and how the Plan Amendment is inconsistent with the City’s obligation to use its Intergovernmental Coordination Policies as the instrument by which it “support[s] the functions of the Port of Miami River.”
Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions.
Land Use Element
Petitioners allege that the Plan Amendment is inconsistent with goals, objectives, and policies of the land use element of the Comprehensive Plan, specifically Goal LU-1, Objective LU-1, Objective LU-1.1, Policy LU 1.1.3, Objective LU- 1.5, Objective LU-1.6, and Goal LU-2, because the Plan Amendment “puts existing residential neighborhoods at risk by introducing an incompatible land use.” Petition at 8.
Although the City’s review of any application for a comprehensive plan amendment involves consideration of the Comprehensive Plan as a whole, the land use element of the Comprehensive Plan is of primary concern in the instant case because it sets forth the goals, objectives, and policies that directly concern land use.
As stated in the P&Z Department’s analysis, the Plan Amendment is consistent with Goal LU-1, and consistency with Goal LU-1 necessarily includes consistency with the objectives and policies that further that goal.
The key part of Goal LU-1 that is relevant to the Plan Amendment is maintaining a land use pattern that protects and enhances the quality of life in the City’s residential neighborhoods. The Plan Amendment is not incompatible with and is likely to maintain the land use pattern in the adjacent mixed-use residential neighborhood of East Little Havana and is likely to afford East Little Havana residents access to needed retail and service uses not currently available on the vacant Property and provide East Little Havana residents some relief from their existing older, overcrowded housing.
The Plan Amendment is consistent with the land use pattern of the area and is also complementary to the nearby land uses. Approximately 15 percent of the boundaries of the
Property are industrial land uses, while the remaining 85 percent include a variety of other land use designations.
The Plan Amendment will likely have a positive impact on the area due to the riverwalk and mix of uses that are likely to bring economic revitalization to the area.
Petitioners allege in their Petition that the Plan Amendment is inconsistent with “Objective LU-1.” “Objective LU- 1,” however, does not exist.
Objective LU-1.1 is concerned with the need for LDRs to foster “a high quality of life in all areas,” with particular regard to the provision of public facilities.
The concurrency management analysis performed with regard to the Plan Amendment indicated that the levels of service would not fall below the minimum required levels.
With respect to Policy LU-1.1.3, Petitioners did not prove that the Plan Amendment is likely to destabilize the existing land uses and will result in the encroachment of an incompatible land use. Moreover, Policy LU-1.1.3 is a recitation of the protections provided by the City’s zoning ordinance, and is therefore irrelevant to the issues in this case.
Policy LU-1.3.1 mandates that the City “provide incentives for commercial redevelopment and new construction” in certain designated areas including the River Corridor.
Petitioners did not offer persuasive evidence as to the relevance of this policy. In any event, it is likely that approval of the Plan Amendment, which is likely to facilitate development of a long vacant property, will encourage commercial redevelopment and construction.
Ms. Slazyk stated that the East Little Havana neighborhood in which the Property is located is a “Target Area” designated to receive funding for the purpose of revitalization, affordable housing and economic development.
Petitioners offered no persuasive evidence that demonstrated that the Plan Amendment is inconsistent with Objective LU-1.5. The Property is designated as a contaminated Brownfield Site and the goals of the Comprehensive Plan include “clean[ing] up” Brownfields. (A Brownfield site has some levels of contamination that make redevelopment difficult without the expenditure of potentially large sums of money for environmental cleanup.)
The Plan Amendment will allow a land use designation that could allow the development of a mixed-use project (subject to separate approval) that will include a view corridor of the river and a publicly accessible river walk via a 20-foot-wide greenbelt on each side of the Property. See Pre-Hearing Stipulation at 11. Moreover, Objective LU-1.5 sets forth
requirements for LDRs, and is therefore irrelevant to the issues in this case.
Objective LU-1.6 provides that the City will regulate property development to insure consistency with the Comprehensive Plan. This proceeding is not concerned with the consistency of the Development Project with the Comprehensive Plan. Therefore, Objective LU-1.6 is irrelevant to this proceeding. However, even if approval of the Plan Amendment is considered to be a regulation of the development of property, such approval is consistent with the Comprehensive Plan because it furthers the Comprehensive Plan’s goals, objectives, and policies.
One policy in particular with which the Plan Amendment complies is Policy LU-1.1.11, which designates the City as an Urban Infill Area and states that “[p]riority will be given to infill development on vacant parcels.” The Plan Amendment will allow the Property, which has been vacant for more than 10 years, to be developed as urban infill.
Petitioners did not present persuasive evidence proving the relevancy of Goal LU-2, i.e., that the Property contains historic, architectural, or archaeological resources. See Finding of Fact 82.
Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions.
Housing Element
Petitioners further contend that the Plan Amendment is inconsistent with Goal LU-2, Goal HO-2, Objective HO-2.1, and Policy HO-2.1.4 on the basis that “it places high density residential development in an area known as the ‘middle river’ far from the area on the Miami River generally accepted as ‘city center.’” Petition at 8.
Petitioners have presented no persuasive evidence proving that these housing element goals, objective, and policy restrict high-density development to the “city center.” See
Endnotes 10 and 11.
Persuasive evidence established that the Plan Amendment is in compliance with the housing element of the Comprehensive Plan.
With respect to Goal LU-2, Petitioners did not prove that the Property contains any of “Miami’s historic, architectural and archaeological resources,” which is the subject matter of Goal LU-2. See Joint Exhibit 3, tab l.
Petitioners did not prove that the Plan Amendment is inconsistent with these Comprehensive Plan provisions.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction to conduct a hearing on the subject matter of this
proceeding. §§ 120.569, 120.57(1), and 163.3187(3)(a), Fla. Stat.
Burden of Proof and Standard of Review
Sections 120.569 and 120.57, Florida Statutes, provide for de novo proceedings in which a ruling on the petition is based on the record developed at a final hearing. See Denig v.
Town of Pomona Park, Case No. 01-4845GM, 2001 WL 1592220 (DOAH June 18, 2002; DCA October 23, 2002).
The burden of proof in administrative proceedings is generally on the party asserting the affirmative of the issue in the proceeding. Young v. Department of Community Affairs, 625 So. 2d 831, 834 (Fla. 1993).
Section 163.3187(3)(a), Florida Statutes, imposes the burden of proof on the party challenging a small scale development amendment. The City’s determination that the Plan Amendment “is in compliance is presumed to be correct.”
§ 163.3187(3)(a), Fla. Stat.
“The local government’s determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with this act.”
§ 163.3187(3)(a), Fla. Stat.
Relevant here, "in compliance" means consistent with the requirements of Sections 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, Florida Statutes, with the state
comprehensive plan, with the appropriate strategic regional policy plan, and with Florida Administrative Code Chapter 9J-5.
§ 163.3184(1)(b), Fla. Stat. For the reasons stated herein, Petitioners did not prove that the Plan Amendment is not "in compliance."
Standing
In order to have standing to bring an action before the Division pursuant to Section 163.3187(3), Florida Statutes, a petitioner must be an “affected person” as defined by 163.3184(1)(a), Florida Statutes, which provides as follows:
"Affected person" includes the affected local government; persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review. . . . Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections to the local government during the period of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.
§ 163.3184(1)(a), Fla. Stat.
Based upon the weight of the evidence, Petitioners submitted comments, recommendations, or objections “during the period of time beginning with the transmittal hearing for the
. . . plan amendment and ending with the adoption of the . . . plan amendment,” and therefore have standing to challenge the
Plan Amendment pursuant to Section 163.3187(3)(a), Florida Statutes. § 163.3184(1)(a), Fla. Stat. See also Perry v.
Department of Community Affairs and City of Bradenton, Case No. 00-2066GM (DCA Order of Remand, October 27, 2000).16
Data and Analysis
Petitioners contend that the Plan Amendment is not based upon relevant and appropriate data and analysis.
Any amendment to a comprehensive plan must be based upon appropriate data. Although such data need not be original data, local governments are permitted to utilize original data as long as appropriate methodologies are used for data collection. § 163.3177(8) and (10)(e), Fla. Stat.
Florida Administrative Code Rule 9J-5.005(2) requires that, in order for a plan provision to be "based" upon appropriate "data,” the local government must "react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." The data must also be the "best available existing data" "collected and applied in a professionally acceptable manner." Fla. Admin. Code R. 9J-5.005(2)(a)-(c).
However, the data and analysis that may support a plan amendment are not limited to those identified or actually relied upon by a local government. All data available to a local
government in existence at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de
novo proceeding. Zemel v. Lee County and Department of Community Affairs, 15 F.A.L.R. 2735, 2737 (DCA June 22, 1993), aff’d, 642 So. 2d 1367 (Fla. 1st DCA 1994). See also Sierra Club v. St. Johns County and Department of Community Affairs, Case Nos. 01-1851GM and 01-1852GM, 2002 WL 1592234 (DOAH May 20,
2002; DCA July 30, 2002)("The ALJ need not determine whether the [local government] or the Department were aware of the data, or performed the analysis, at any prior point in time." (Citation omitted), aff’d, 857 So. 2d 897 (Fla. 5th DCA 2003). Analysis supporting a plan amendment, however, need not be in existence at the time of the adoption of a plan amendment. See Zemel, supra. Data existing at the time of the adoption of a plan amendment may be subject to new or even first-time analysis at the time of an administrative hearing challenging a plan amendment. Id.
The data and analysis that support the Plan Amendment are largely recounted in Findings of Fact 32 to 46. Petitioners did not prove by a preponderance of the evidence that the data and analysis were insufficient to support the Plan Amendment or that the data were not collected in a professionally acceptable manner.
Internal Consistency
Legal Principles
Petitioners contend that the Plan Amendment is not consistent with certain elements of the Comprehensive Plan. To be "internally consistent," comprehensive plan elements must not conflict. If the objectives do not conflict, then they are coordinated, related, and consistent. See generally Schember v Department of Community Affairs and City of Bradenton, Case No. 00-2066GM (DCA November 1, 2001).
A proposed small scale amendment reviewed under Section 163.3187(1)(c), Florida Statutes, by a local government "does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to the future land use map for a site-specific small scale development activity."
§ 163.3187(1)(c)1.d., Fla. Stat.
The Comprehensive Plan, including the FLUM and plan amendments, is a legislative decision. Coastal Development of
North Florida, Inc. v. City of Jacksonville, 788 So. 2d 204, 208-209 (Fla. 2001). The Comprehensive Plan should be read as a whole in determining the City’s intent with respect to a discrete portion. Id.
The rules of statutory construction provide insight when construing various goals, objectives, and policies of the
Comprehensive Plan. The plain meaning of the statute is considered the foremost rule. Acosta v. Richter, 671 So. 2d 149, 153 (Fla. 1996). Essentially, this rule requires “straightforward consideration of each relevant sentence” because a "statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts." Id. at 153-54. (Citations omitted). Also, "statutory phrases are not to be read in isolation, but rather within the context of the entire section." Id. at 154. (Citations omitted). “When a statute is clear, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” State v. Burris, 875 So. 2d 408, 410 (Fla. 2004)(Citation omitted). “Instead, the statute's plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” Id.
Port of Miami River Element
Based upon the weight of the evidence in light of the plain and ordinary meaning of the relevant terms, Port of Miami River applies only to shipping companies as defined in the Comprehensive Plan.
The Property was not owned by a shipping company, nor used for marine industrial purposes, at the time that the Comprehensive Plan was adopted or thereafter. The Property does
not fall within the definition of Port of Miami River, and the Port of Miami River element is not applicable or relevant to the analysis of the Plan Amendment’s consistency with the Comprehensive Plan.
Objective PA-3.1, Policy PA-3.1.1, Policy PA 3.1.2, and Policy PA-3.1.3 refer to LDRs as the means by which the objectives and policies are to be implemented. LDRs have been defined by statute as follows:
"Land development regulations" means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land, except that this definition shall not apply in s. 163.3213.
§ 163.3164(23), Fla. Stat. The relevance of LDRs was explained in Robbins v. Department of Community Affairs and the City of Miami Beach, Case No. 97-0754GM, 1997 WL 1432207, at *7 (DCA December 9, 1997).
[L]and development regulations are not relevant to a plan or plan amendment compliance determination. Land development regulations must be consistent with the adopted comprehensive plan, not the other way around. §163.3194(1)(b), (2) and (3), and §163.3213, Fla. Stat. The comprehensive plan is implemented by appropriate land development regulations. §163.3201, Fla.
Stat.
Further, “consistency with land development regulations is not a compliance criterion,” because it is not required by the definition of “in compliance” under Subsection 163.3184(1)(b). See Brevard County v. Department of Community Affairs and City of Palm Bay, Case Nos. 00-1956GM and 02-0391GM, 2002 WL 31846455 (DOAH December 16, 2002; DCA February 25, 2003). Consequently, the Plan Amendment’s consistency with those objectives and policies that serve as guidelines for LDRs is not relevant in this proceeding. Therefore, Objective PA- 3.1, Policy PA-3.1.1, Policy PA-3.1.2, and Policy PA-3.1.3 are not applicable to the determination of whether the Plan Amendment is consistent with the Comprehensive Plan.
Petitioners did not prove by a preponderance of the evidence that the Plan Amendment is inconsistent with Objective PA-3.1, Policy PA-3.1.1, Policy PA-3.1.2, Policy PA-3.1.3, Objective PA-3.3, Policy PA-3.3.1, and Policy LU-1.3.1.
Land Use Element
Petitioners did not offer persuasive evidence that the Plan Amendment is inconsistent with the land use element of the Comprehensive Plan.
Objective LU-1.1, Policy LU 1.1.3, and Objective LU-
1.5 specifically address requirements for the City’s LDRs, with which a comprehensive plan amendment need not be consistent. As discussed above, objectives and policies targeted at
establishing guidelines for the City’s LDRs are not applicable to the determination of the Plan Amendment’s consistency with the Comprehensive Plan. Consequently, Objective LU-1.1, Policy LU 1.1.3, and Objective LU-1.5 are not applicable to the determination whether the Plan Amendment is consistent with the Comprehensive Plan.
Petitioners did not prove the Plan Amendment is inconsistent with Goal LU-1, Objective LU-1, Objective LU-1.1, Policy LU 1.1.3, Objective LU-1.5, Objective LU-1.6, and Goal LU-2.
Housing Element
Petitioners did not offer persuasive evidence which demonstrated that the Plan Amendment is inconsistent with Goal HO-2, Objective HO-2.1, or Policy HO-2.1.4. On the other hand, RAD demonstrated that the Plan Amendment is not inconsistent with the housing element of the Comprehensive Plan. The persuasive evidence supports the conclusion that high-density development is acceptable in parts of the City other than the City Center, including the middle river. Petitioners did not prove by a preponderance of the evidence that the Plan Amendment is inconsistent Goal HO-2, Objective HO-2.1, or Policy HO-2.1.4.
CONCLUSION
Based upon the foregoing, Petitioners did not prove by a preponderance of the evidence that the Plan Amendment is not "in compliance."
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by City of Miami in Ordinance No. 12492 is “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.
DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
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 3rd day of September, 2004.
ENDNOTES
1/ All citations are to the 2003 version of the Florida Statutes.
2/ The Property is commonly known as the Miami News site, because the Miami News used it for many years.
3/ The land use adjacent to the east and west of the Property is designated “Industrial”; the land use adjacent to the Property to the south has an “Office” designation; and the land use adjacent to and southwest of the Property is designated “General Commercial,” and “Major Institutional, Public Facilities, Transportation and Utilities.”
4/ “The areas designated as ‘Industrial’ allow manufacturing, assembly and storage activities. The ‘Industrial’ designation generally includes activities that would otherwise generate excessive amounts of noise smoke, fumes. . .or negative visual impact unless properly controlled. . . . Residential uses are not permitted in the ‘Industrial’ designation, except for rescue missions, and live-aboards in commercial marinas.” (Emphasis added). “Areas designated as ‘Restricted Commercial’ allow residential uses (excepting rescue missions) to a maximum density equivalent to ‘High Density Multifamily Residential’ subject to the same limiting conditions; any activity included in the ‘Office’ designation as a well as commercial activities that generally serve the daily retailing and service needs of the public. . . . This category also includes commercial marinas and living quarters on vessels as permissible.” (Emphasis added). “Areas designated as ‘High Density Multifamily Residential’ allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City’s adopted concurrency management requirements. . . .” (Emphasis added)
5/ The MRC is an advisory body created in 1998. The MRC was created 'as the official coordinating clearing house for all public policy and projects related to the Miami River.'
6/ The Greenway is “a pedestrian publicly accessible path for walkers, rollerbladers, bicyclists and the like to be able to have a path and accessibility to the waterfront, to the riverfront.”
7/ The Miami River Improvement Act in 2000 mandated that the County and City work together to create a plan, which involved a two year public hearing and planning process and resulted in the Miami River Corridor Urban Infill Plan. See § 163.065, Fla.
Stat.
8/ See Intervenors’ Exhibit 3.
9/ Mr. Olmedillo, former Director of Miami-Dade County’s Planning and Zoning Department and Deputy Director of the City’s P&Z Department, and Ms. Slazyk, Assistant Director of the City’s P&Z Department, both testified that the P&Z Department’s analysis provided to the Commission does not include all information considered by the P&Z Department when making a recommendation, because otherwise the packet would be too voluminous.
10/ According to two studies of the Miami River, the Miami River Master Plan and the UIP, the river is divided into three parts - the lower river, which encompasses the City’s high density downtown area; the middle river, which is a transition zone of mixed-used and residential development and marine industrial uses; and the upper river, which is known as the “working river” for its high concentration of marine industrial uses.
The Miami River Master Plan in particular recommends that riverfront land located west of Northwest 27th Avenue, which is known as the upper river, be preserved for “expansion of shipping terminals and other marine industries.” The Property, however, is located on the middle river, east of Northwest 12th and 27th Avenue and closer to the lower river and the downtown area than the upper river. The UIP advises that the upper river prototype should include “preservation and growth of the shipping industry.” The UIP also states that “[t]here are locations in the Middle River that can support mid-rise and mixed-use development, that serve the needs of Middle River neighborhoods and greenway users.” (The UIP states that “[t]he Lower River includes Biscayne Bay to the 5th Street Bridge.
Middle River includes: 5th Street Bridge to the NW 22nd Avenue Bridge. Upper River includes 22nd Avenue Bridge to the Salinity Dam.”)
11/ The Miami River Master Plan indicates that there is a need for additional services in the area of the Civic Center. This plan suggests a “mixed-use, high-rise complex that includes offices, apartments, retail/service establishments, parking garages and a marina to serve the Civic Center area.”
12/ The Miami River Master Plan is considered outdated because the City has been since designated as an Urban Infill Area, which promotes different development on the river than that of the Miami River Master Plan. Mr. Olmedillo testified that the City was designated an Urban Infill Area about seven or eight years after the Miami River Master Plan was adopted in 1992.
The Miami River Master Plan with its 1992 perspective is used only as a “guiding tool” for development.
13/ The economic impact analysis for the Development Project indicated a favorable impact on the City’s economy including the creation of jobs and an increase in ad valorem taxes as well as other benefits.
14/ Subsection 163.3177(2) provides as follows: “Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be economically feasible.”
15/ The Comprehensive Plan defines “Port of Miami River” in a footnote which provides: “The ‘Port of Miami River’ is simply a legal name used to identify some 14 independent, privately-owned small shipping companies located along the Miami River, and is not a ‘Port Facility’ within the usual meaning of the term. The identification of these shipping concerns as the ‘Port of Miami River’ was made in 1986 for the sole purpose of satisfying a
U.S. Coast Guard regulation governing bilge pump outs.” Further, Goal PA-3 of the Port of Miami River element reiterates the defined scope of this term as follows: “The Port of Miami River, a group of privately owned and operated commercial shipping companies located at specific sites along the Miami River, shall be encouraged to continue operation as a valued and economically viable component of the city’s maritime industrial base.” The current number of “independent, privately-owned small shipping companies located along the Miami River” is uncertain. (The UIP refers to 15 boatyards operating on the Miami River and 25 shipping terminals operating on the Miami River upon completion of the UIP.)
16/ In Perry, Schember, a petitioner, “commented about how she did not have notice of the public hearing until ten o’clock that day. She also engaged in a dialogue with the local governing body as to whether people could be provided notice in addition to the notice published in the newspaper. Although she did not object to the legal sufficiency of the notice for that meeting,
she did speak as to whether it was practically sufficient.” The Department concluded that “[b]y addressing the notice procedure used for the amendment, Schember made comments that relate directly to the challenged amendment. Accordingly, her comments meet the direct nexus test discussed in Starr v. Department of Community Affairs and Charlotte County, DOAH Case No. 98-0449GM (Department of Community Affairs, Final Order Dated May 16, 2000.)” The Department ultimately concluded that Schember’s “comment regarding the amendment’s notice was sufficient to afford her standing under Section 163.3184, Florida Statutes.” Perry, Case No. 00-2066GM at 6-7.
COPIES FURNISHED:
Thaddeus Cohen, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Heidi Hughes, General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
Andrew W. J. Dickman, Esquire
Law Offices of Andrew Dickman, P.A. 9111 Park Drive
Miami Shores, Florida 33138-3159
Paul R. Lipton, Esquire Greenberg Traurig, P.A. 1221 Brickell Avenue
Miami, Florida 33131-3224
Rafael Suarez-Rivas, Esquire City of Miami
Miami Riverside Center, Suite 945
444 Southwest Second Avenue Miami, Florida 33130-1910
David C. Ashburn, Esquire Greenberg Traurig, P.A.
101 East College Avenue Tallahassee, Florida 32301-7742
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 |
|---|---|---|
| Oct. 26, 2004 | Agency Final Order | |
| Sep. 03, 2004 | Recommended Order | Petitioners did not prove by a preponderance of the evidence that the small scale plan amendment to the future land use map was inconsistent with the City`s Comprehensive Plan. Florida Admin. Code Rule 5J-5.002 and Section 163.3184, Florida Statutes. |
