STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HERBERT PAYNE; ANN STETSER; ) THE DURHAM PARK NEIGHBORHOOD ) ASSOCIATION, INC.; and THE ) MIAMI RIVER MARINE GROUP, ) INC., )
)
Petitioners, )
)
vs. ) Case No. 04-2754GM
)
CITY OF MIAMI, )
)
Respondent, )
)
and )
) BALBINO INVESTMENTS, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on April 4 and 5, 2006, in Miami, Florida.
APPEARANCES
For Petitioners: Andrew W. J. Dickman, Esquire
Law Offices of Andrew Dickman, P.A. Post Office Box 771390
Naples, Florida 34107-1390
For Respondent: Rafael Suarez-Rivas, Esquire
Assistant City Attorney
444 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130-1910
For Intervenor: Paul R. Lipton, Esquire
Pamela A. DeBooth, Esquire Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131-3224
David C. Ashburn, Esquire Greenberg Traurig, P.A. Post Office Box 1838
Tallahassee, Florida 32302-1838 STATEMENT OF THE ISSUE
The issue is whether the City of Miami's small scale development amendment adopted by Ordinance No. 12550 on June 24, 2004, is in compliance.
PRELIMINARY STATEMENT
On June 24, 2004, Respondent, City of Miami (City), adopted a small-scale plan amendment (Ordinance No. 12550), which changed the future land use designation on the City's Future Land Use Map (FLUM) on a 7.91-acre parcel from Industrial and General Commercial to Commercial Restricted. The Ordinance was signed by the City's Mayor on July 7, 2004. The parcel is located on the Miami River at 1818 and 1884 Northwest North River Drive, Miami, Florida. The amendment was adopted under the procedure described in Section 163.3187, Florida Statutes (2005).1
On August 5, 2004, Petitioners, Herbert Payne (Payne), Ann Stetser, The Durham Park Neighborhood Association, Inc. (Durham Park), Ann B. Fremont, and The Miami River Marine Group, Inc. (Marine Group), filed their Petition Challenging Compliance of Small-Scale Comprehensive Plan Amendment with the Florida Growth Management Act (Petition). (On October 29, 2004, Ann B. Fremont filed a Notice of Voluntary Dismissal and was dismissed as a party in this case by Order dated November 1, 2004.) On
August 17, 2004, Intervenor, Balbino Investments, Inc. (Balbino), who is the contract owner of the parcel in question, filed its Amended Petition to Intervene in support of the challenged amendment. On August 18, 2004, the Amended Petition to Intervene was granted.
By Notice of Hearing dated August 18, 2004, a final hearing was scheduled for September 14 and 15, 2004, in Miami, Florida. On August 27, 2004, Petitioners' unopposed Motion for Continuance was granted and by agreement of the parties the matter was rescheduled to December 15-17, 2004, at the same location.
On October 26, 2004, the City and Intervenor filed a Joint Motion for Summary Recommended Order of Dismissal (Motion) on the ground the Petition was not timely filed within thirty days after the plan amendment was adopted. The Motion was treated as
a motion to relinquish jurisdiction and was granted by Order dated November 23, 2004. The Department of Community Affairs (Department) affirmed the undersigned's ruling and issued a Final Order on December 23, 2004, dismissing the Petition.
Petitioners then appealed the Department's Final Order to the Third District Court of Appeal. On November 16, 2005, the Court reversed the Department's determination that the Petition was untimely and remanded the matter for further proceedings. See Herbert Payne et al. v. City of Miami et al., 913 So. 2d 1260 (Fla. 3d DCA 2005) (Payne I). On January 5, 2006, the Department issued an Order of Remand to the Division of Administrative Hearings requesting that the case be reopened.
By Order dated January 9, 2006, the case was reopened.
By Notice of Hearing dated February 9, 2006, a final hearing was scheduled on April 4-6, 2006, in Miami, Florida.
On March 1, 2006, Petitioners filed a Motion for Leave to Amend Petition (Motion to Amend), together with an Amended Petition Challenging Compliance of Small-Scale Comprehensive Plan Amendment with the Florida Growth Management Act (Amended Petition). A Response in opposition to the Motion to Amend was filed by Intervenor (and joined in by the City) on March 8, 2006. By Order dated March 16, 2006, the Motion to Amend was granted in part, and Petitioners were authorized to file an
amended petition. However, new allegations pertaining to land development regulations, development orders, and zoning issues were excluded. Also, several other allegations were stricken on the ground they had no application to the small scale amendment being challenged. The stricken allegations pertained to the following provisions within the City's Comprehensive Plan (Plan): Policies LU-1.1.1, LU-1.5.1, LU-1.10, HO-1.1.7, and LU-
1.6.5, and Objectives CI-1.2, LU-1.1, LU-1.5, SS-1.3, PW-1.1,
CI-1.2, LU-3.2, IC-1.2, IC-1.2, TR-1.9, PA-3.2, IC-2.1, LU-3.1, HO-2.1, CI-1.1, and TR-1.5.
On March 29, 2006, Intervenor filed a Motion to Strike other allegations in the Amended Petition (carried over from the original Petition) on the ground they also related to land development regulations and zoning issues or were not relevant to this dispute. After hearing argument of counsel, the Motion to Strike was granted in all respects except one by Order dated March 31, 2006. The stricken allegations pertained to Policies PA-1.1, PA-3.12, PA-3.1.3, PA-3.3.1, LU-1.1.3, LU-1.6.9, HO-
1.1.5, and HO-1.1.8, and Objective PA-3.1. Because the Order inadvertently failed to address an allegation related to Policy HO-1.1.8, which pertains to Special District zoning, that portion of the Amended Petition is likewise stricken.
On March 3, 2006, Petitioners filed a Notice of Filing Additional Case Law and requested that the undersigned take official recognition of the case of Herbert Payne et al. v. City of Miami et al., 30 Fla. L. Weekly D2601 (Fla 3d DCA, November 16, 2005) (Payne II), which involved an appeal from a circuit court decision which dismissed for lack of standing two of four petitioners (Payne and the Marine Group) who had filed a challenge under Section 163.3215, Florida Statutes, alleging that the City's decision to rezone the property in question and to issue a major use special permit to Intervenor was inconsistent with the Plan. The Court, by a 2-1 vote, reversed the lower court's determination. However, because the decision was not yet final at the time of hearing, as a Motion for Rehearing and Rehearing En Banc had been pending before that Court since November 28, 2005, the Request for Official Recognition was denied. On May 10, 2006, the Court denied the Motion for Rehearing and Rehearing En Banc, and the decision is now final. Accordingly, the earlier ruling is vacated, and the request for official recognition is granted. Also, at the hearing, Intervenor's request for Official Recognition of the Final Order and Recommended Order in DOAH Case No. 04-1080GM was granted. See Monkus et al. v. City of Miami et al. (DOAH Sept. 3, 2004; DCA Oct. 26, 2004). Finally, Petitioners' request that
an affidavit of Captain James Maes, United States Coast Guard, be used as substantive evidence in the case was denied. See
§ 120.57(1)(c), Fla. Stat.
At the final hearing, Petitioners presented the testimony of Ann Stetser, who owns property and resides near Intervenor's parcel; Horacio S. Aguirre, president of the Durham Park Neighborhood Association, Inc.; Herbert Payne, a tugboat captain on the Miami River; Fran Bohnsack, executive director of the Miami River Marine Group, Inc.; Lourdes Slazyk, assistant director of the City Planning Department; and Jack Luft, a land use planner. Also, it offered Petitioners' Exhibits 1-10. All were received in evidence except Exhibit 5, upon which a ruling was reserved. That exhibit is hereby received in evidence. The City and Intervenor jointly presented the testimony of Lourdes Slazyk, assistant director of the City Planning Department.
Intervenor offered Intervenor's Exhibits 1-4, while the City offered City Exhibit 1. Those exhibits have been received in evidence. Finally, Joint Exhibits 1-4 were received in evidence.
A Transcript of the hearing (four volumes) was filed on April 18, 2006. By agreement of the parties, Proposed Findings of Fact and Conclusions of Law were due no later than April 28, 2006, and were jointly filed by the City and Intervenor that
date. On May 1, 2006, or after the due date, Petitioners filed a Motion for Extension of Time to File Proposed Recommended Order (Motion) asking that they be given until May 5, 2006, in which to submit their filing. The Motion was opposed by the City and Intervenor. Before a ruling on the Motion was made, on May 3, 2006, Petitioners filed their Proposed Findings of Fact and Conclusions of Law.2 Although Petitioners' filing is untimely, both Proposed Recommended Orders have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based upon all of the evidence, the following findings of fact are determined:
Background
On December 31, 2003, Intervenor submitted an application to the City for an amendment to the FLUM which would change the land use designation on a 7.91-acre tract of property from Industrial and General Commercial to Restricted Commercial. The property is located at 1818 and 1844 Northwest North River Drive, Miami, and is situated on the north side of the Miami River. It is bordered by Northwest North River Drive to the north, the Miami River to the south, and a recently renovated condominium development known as Serenity to the east. At one time (the specific date is unknown), the property was used as a
boat repair facility and commercial marina. The property is currently unused.
The application was submitted concurrently with an application for a zoning change in connection with Intervenor's intent to develop a mixed use project on the property.
The applications were reviewed by the City's Planning and Zoning Department (Planning Department). The Planning Department recommended that the applications be approved. In doing so, it determined that the land use change furthers the objectives of the Plan, and that the land use pattern in the neighborhood should be changed.
On April 7, 2004, the City Planning Advisory Board voted 4-3 in favor of recommending approval of the application. However, that vote constituted a denial due to the failure to obtain five favorable votes.
Both the FLUM and zoning applications were initially presented for first reading to the City Commission (Commission) on April 22, 2004. At that meeting, the Commission voted to approve both applications.
The applications were again presented to the Commission on June 24, 2004. At that time, Balbino's application for a major use special permit was also presented to the Commission. After consideration, the Commission adopted Ordinance No. 12550,
which amended the FLUM by changing the land use designation on the property, as requested by Intervenor. (It also granted the rezoning request and approved the issuance of a major use special permit.) The Ordinance was signed by the City's Mayor on July 7, 2004.
Because the amendment is a small scale development amendment under Section 163.3187(1)(c), Florida Statutes, it was not reviewed by the Department. See § 163.3187(3)(a), Fla. Stat.
On August 5, 2004, Petitioners filed their Petition challenging the FLUM amendment generally alleging that the amendment involved a use of more than ten acres and therefore was not a small scale development amendment, that the amendment was internally inconsistent with other provisions in the City's Plan, and that the amendment was not supported by adequate data and analysis. After an intervening appeal to the Third District Court of Appeal, which involved the timeliness of their Petition, on March 1, 2006, Petitioners filed their Amended Petition which added additional grounds for finding the amendment not in compliance.
On August 17, 2006, Intervenor, who is the contract owner of the property, petitioned to intervene in this proceeding. That request was granted on August 18, 2004.
The Parties
Durham Park is a non-profit corporation comprised of approximately ninety homeowners who reside within the Durham Park area. It lies on the south side of the Miami River across from Balbino's property. According to its president, Horacio Aguirre, every homeowner is automatically a member of the association but no dues are assessed. A list of members is not maintained. At the hearing, Mr. Aguirre acknowledged that the association is not engaged in any business and does not own any property. Although its corporate purpose is not of record, the association occasionally meets to discuss issues that "impact the neighborhood," including the amendment being challenged here. No minutes of meetings are kept. Once, in September 2003, the association published a newsletter. Mr. Aguirre appeared before the City Commission on behalf of Durham Park and offered comments in opposition to the plan amendment.
Ann Stetser resides in a ten-story condominium at 1700 Northwest North River Drive, which is on the north side of the River and just east of the subject property. The Serenity condominium development lies between her condominium and Intervenor's property. Ms. Stetser offered oral or written comments to the City regarding the small scale amendment.
Therefore, she is an affected person and has standing to bring this challenge.
Mr. Payne resides in the City of Davie in Broward County but owns and operates a tug boat company known as Towing and Transportation, which is located in the Lower River portion of the Miami River. Mr. Payne submitted timely comments to the City regarding the small scale amendment and thus is an affected person with standing to bring this action.
Miami River Marine Group, Inc. is a private, non- profit trade association comprised of approximately fifty-five members, each of which is a private business. Its mission "is to protect the working river." The executive director of the association, Fran Bohnsack, appeared before the City Commission on behalf of the association and offered comments in opposition to the proposed amendment. The parties agree that Miami River Marine Group, Inc. is an affected person and has standing to participate.
The City is a political subdivision of the State of Florida. It initially adopted the Plan in 1989. The Plan has been amended from time to time.
Balbino is the contract purchaser of the subject property. Balbino submitted comments concerning the amendment
to the City at its meeting on June 24, 2004, and is an affected person with standing to participate in this proceeding.
Relevant Provisions of the Plan
The section of the Plan entitled "Interpretation of the Future Land Use Plan Map" describes the various land use categories in the Plan. See Joint Exhibit 2, pages 13-16. It describes the Industrial land use category as follows:
Industrial: 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, illumination, traffic, hazardous wastes, or negative visual impact unless properly controlled. Stockyards, rendering works, smelting and refining plants and similar activities are excluded. Residential uses are not permitted in the "Industrial" designation, except for rescue missions, and live-aboards in commercial marinas.
The section also describes the "General Commercial" land use classification as follows:
General Commercial: Areas designated as "General Commercial" allow all activities included in the "Office" and the "Restricted Commercial" designations, as well as wholesaling and distribution activities that generally serve the needs of other businesses; generally require on and off loading facilities; and benefit from close proximity to industrial areas. These commercial activities include retailing of second hand items, automotive repair services, new and used vehicle sales, parking lots and garages, heavy equipment
sales and service, building material sales and storage, wholesaling, warehousing, distribution and transport related services, light manufacturing and assembly and other activities whose scale of operation and land use impacts are similar to those uses described above. Multifamily residential structures of a density equal to R-3 or higher, but not to exceed a maximum of 150 units per acre, are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents. This category also allows commercial marinas and living quarters on vessels for transients.
Finally, the section describes the "Restricted Commercial" land use category as follows:
Restricted Commercial: Areas designated as "Restricted Commercial" allow residential uses (except 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 well as commercial activities that generally serve the daily retailing and service needs of the public, typically requiring easy access by personal auto, and often located along arterial or collector roadways, which include: general retailing, personal and professional services, real estate, banking and other financial services, restaurants, saloons and cafes, general entertainment facilities, private clubs and recreation facilities, major sports and exhibition or entertainment facilities and other commercial activities whose scale and land use impacts are similar in nature to those
uses described above, places of worship, primary and secondary schools. This category also includes commercial marinas and living quarters on vessels as permissible.
The Plan is based on a pyramid structure. See Joint Exhibit 2, Interpretation of the Future Land Use Plan Map, page 13, paragraph 4. That is, each land use classification permits all land uses within previously listed categories, except as otherwise specifically provided in the Plan. Therefore, with the exception of residential uses, all uses permitted under the Restricted Commercial designation are permitted under the Industrial classification.
The Restricted Commercial category is a logical designation for the property because of its proximity to residential neighborhoods. Those residential properties would clearly be more detrimentally affected by industrial activities that may generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact, which are now authorized under the Industrial designation.
The Miami River
The Miami River runs northwest to southeast for more than five miles from the Miami International Airport to Biscayne Bay (the mouth of the River). For planning purposes, it
includes three sections: the Upper River, the Middle River, and the Lower River. Although the demarcations of those sections are in dispute, the best evidence of the appropriate demarcations of the three sections is found in the Miami River Master Plan (Master Plan), which was adopted by the City in 1992. See Joint Exhibit 1.
The Master Plan clearly depicts the geographic scope of the Mid-River (or Middle River) as extending west to Northwest 27th Avenue and the Up River (or Upper River) as being that portion of the Miami River lying west of Northwest 27th Avenue. Based on these demarcations, the Lower River would run from the mouth of the Miami River to the 5th Street Bridge, the Middle River from the 5th Street Bridge to Northwest 27th Avenue, and the Upper River from Northwest 27th Avenue westward. It is undisputed that Intervenor's property is located on the Middle River.
The parties agree that Restricted Commercial is a reasonable land use designation for the Middle River. Petitioners' expert witness also agreed that the Middle River "is supposed to be a mix of residential."
In its discussion of the Middle River, the Master Plan provides:
The Mid-River area contains most of the existing housing located along the Miami
River. The wide variety of dwelling types, ranging from single family homes to high- rise apartment/condominium buildings, are mostly occupied by middle-income households. This is an important segment of the population for the City to retain in order to support the local economy and tax base.
A number of opportunities remain for development of new housing by building on vacant lots or by increasing the density of existing developed lots. New housing construction should be encouraged, except on lands reserved for water dependent uses. In the proposed SD-4.1 waterfront commercial zoning district (See page 1.14) residential development could be permitted as an accessory use to a marina.
The property is located within the referenced proposed SD-4.1 waterfront commercial zoning district.
According to the Master Plan, the strategy for the Middle River is to "[b]ring the neighborhoods back to the river." The Master Plan further provides that "[d]iverse residential neighborhoods interspersed with commercial districts make the Mid-River unusual. The strategy is to develop centers of activities at strategic locations that will become gateways to the river and give identity to the neighborhoods."
In contrast, the Master Plan describes the Up-River as "a working river." It also notes that "[m]arine industries in the Up-River area create a busy, economically vital district that is important to preserve. The challenge is to protect these industries from displacement by non-water-dependent uses
and to nurture growth in marine industries without negatively impacting nearby residential neighborhoods."
In describing the Upper River, the Master Plan provides:
The character of the river changes dramatically west of NW 27th Avenue bridge. In fact, it is not really the river there; it is the man-made Miami Canal (and the Tamiami Canal branching off to the west).
In contrast to the gently curving paths and irregular edges of the natural river, the canal banks are rigidly straight and significantly closer together at 90 feet.
The most striking difference in the up-river area is the change in land use. The Miami Canal is almost entirely industrial in character, with commercial shipping being the predominant use. Most of the larger cargo vessels on the Miami River are loaded and unloaded in this area, resulting in an incredibly busy, narrow river channel.
Due to the industrial nature of the up-river corridor, many of the urban design recommendations made for the mid-river and downtown areas are not applicable. The emphasis in this area should be to promote growth in shipping and related industries and to provide adequate roadways for the vehicles and trucks associated with these businesses.
Allapattah
The property is located in a community development target area known as Allapattah. Community development target areas are neighborhoods to which the City directs community block grants for revitalization. In need of revitalization,
Allapattah has deteriorated over time and is one of the poorest neighborhoods in the City.
Allapattah has been designated as a neighborhood development zone, a designation used in connection with community development programs.
Also within the Allapattah neighborhood, and less than one mile from the subject property, is an area known as the Civic Center. The Civic Center includes Jackson Hospital, Cedars Hospital, the Justice Building, the County Jail, and government offices. More than 25,000 persons work in the Civic Center area. The area continues to expand.
Urban Infill Area
It is undisputed that the property is located within an urban infill area. Among the purposes of an urban infill designation are the promotion of the efficient use of infrastructure, including transportation and the prevention of urban sprawl.
The Civic Center area is a major transportation hub and includes a metro rail station that is located approximately a five-minute drive from the property. The property is also served by several bus routes.
As to urban sprawl, the amendment will fulfill a need for housing for persons who work in the Civic Center area. By
doing so, the amendment is also expected to promote job creation.
The Size of the Parcel
Petitioners first contend that the parcel actually comprises 10.41 acres and therefore exceeds the threshold size (ten acres or fewer) for small scale development amendments. Petitioners point out that the approved companion rezoning and special permit encompasses 10.41 acres, while the application for the FLUM amendment is for 7.91 acres. Petitioners argue that the total area encompassed by the rezoning and special permit applications is the correct number to use in determining the actual size of the parcel.
The application for the FLUM amendment included a site drawing on which the surveyor certified that the "NET TOTAL LOT AREA" of the property is 7.91 acres. This acreage includes upland and submerged lands and comprises all of the land under Intervenor's ownership and/or control. (Slightly more than one- half of the 7.91 acres is upland property, while the remainder is submerged land in the Miami River where Balbino will construct a marina.)
The site drawing also includes areas adjacent to the property (from the boundaries of the property to the centerline of the adjacent rights-of-way and the centerline of the Miami
River) and the surveyor's calculation of the sizes of those areas. The sum of the acreage of those areas and of the property is referred to as the "gross total lot area."
To determine the size of the property for a future land use map amendment, for at least the last twenty-two years the City has employed the "net lot area" concept. Under that concept, defined in the City's Zoning Ordinance, an applicant may only seek a future land use map amendment with respect to property under its ownership or control, and the only property on which a land use classification is changed as a result of such an application is that which is within the ownership or control of the applicant. Approval of an application for a future land use map amendment does not result in a change in land use classification for lands not within the ownership or control of an applicant, such as a public right-of-way.
Petitioners seek to contravene the City's longstanding use of net lot area in determining the size of property subject to a future land use map amendment by contending that it is the gross lot area that should be considered in determining the size of the property subject to the FLUM amendment. By doing so, however, they are improperly attempting to apply a zoning concept to the City's Plan process.
More specifically, the concept of "gross total lot area" is relevant only for use in a mathematical calculation of "floor area ratio." Floor area ratio is a mathematical calculation pursuant to which the City determines the square footage of buildings that may be built on a particular piece of property. The City's Zoning Ordinance permits a property owner to include portions of the acreage of adjacent rights-of-way, bays, parks, or other open spaces in the floor area calculation. The floor area calculation will not be affected by the FLUM amendment.
The City's net lot area approach is the correct methodology to be used in determining the size of the parcel. Therefore, the map amendment involves or uses only 7.91 acres and was properly considered by the City as a small scale development amendment.
Consistency of the Amendment with the Plan
At the hearing, Petitioners failed to present any evidence bearing on the consistency (or lack thereof) of the amendment with the following Plan objectives and policies: LU- 1.2.3, LU-1.3.1, HO-1.1, HO-1.2, SS-1.4, SS-2.1, SS-2.2, SS-2.5, SW-1.1, SS-2.1, SS-2.5, SW-1.1, PR-1.1, PR-1.4, CM-1.1, CM-2.1, CM-4.2, NR-1.1, NR-1.2, NR-3.2, and CI-1.3. Accordingly,
Petitioners' challenge to the amendment based upon alleged inconsistencies with these objectives and policies must fail.
Remaining for consideration are allegations that the amendment is inconsistent with Goal LU-1, Policy LU-1.3.6, and Objectives LU-1.2, LU-1.3, LU-1.6, SS-2.2, PW-1.2, TR-1.1, PA- 3.3, CM-3.1, CM-4.1, NR-1.3, NR-2.1, and CI-1.4.
Goal LU-1 in the Plan's Future Land Use Element (FLUE) provides that a goal of the Plan shall be to:
Maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city; (4) fosters the growth and development of downtown as a regional center of domestic and international commerce, culture and entertainment; (5) promotes the efficient use of land and minimizes land use conflicts; and (6) protects and conserves the city's significant natural and coastal resources.
The property is surrounded by residential neighborhoods. By eliminating the potential for development on the property of industrial uses that may generate "excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact," the amendment will enhance the quality of life in those surrounding neighborhoods.
The Allapatah neighborhood, in which the property is located, is a declining area. The amendment is therefore consistent with subpart (2) of Goal LU-1, which is concerned with the redevelopment and revitalization of declining areas.
Petitioners have also alleged that the amendment is inconsistent with subpart (3) of the Goal because it will negatively impact marine industrial uses along the Miami River. However, no persuasive evidence to support this contention was offered.
Subpart (4) is not relevant to this case because it pertains to the downtown area and the property is not located in that part of the City.
As to subpart (5), Petitioners offered no evidence that the amendment is inconsistent with the concept of the promotion of the efficient use of land. On the other hand, the evidence shows that the amendment will minimize land use conflicts by placing a land use classification on the property that is consistent with adjacent residential areas.
Petitioners failed to offer any evidence that the amendment is inconsistent with subpart (6), which pertains to the protection and conservation of natural and coastal resources.
FLUE Objective LU-1.2 provides that one of the objectives of the Plan is to:
Promote the redevelopment and revitalization of blighted, declining or threatened residential, commercial and industrial areas.
Because the property is in the Allapatah neighborhood, which is a declining residential area, the amendment will promote redevelopment and revitalization of that area and is therefore consistent with the Objective.
FLUE Objective LU-1.3 provides as follows:
The City will continue to encourage commercial, office and industrial development within existing commercial, office and industrial areas; increase the utilization and enhance the physical character and appearance of existing buildings; and concentrate new commercial and industrial activity in areas where the capacity of existing public facilities can meet or exceed the minimum standards for Level of Service (LOS) adopted in the Capital Improvement Element (CIE).
The concurrency analysis performed by the City shows that approval of the amendment will not result in a failure of existing public facilities to meet or exceed applicable LOS minimum standards.
At the same time, the new Restricted Commercial land use category permits the types of land uses that Objective LU-
1.3 seeks to encourage, namely, commercial and office uses.
FLUE Policy LU-1.3.6 provides:
The City will continue to encourage a diversification in the mix of industrial and commercial activities and tenants through comprehensive marketing and promotion efforts so that the local economy is buffered from national and international cycles. Particular emphasis is on, but not limited to, Southeast Overtown/Park West, Latin quarter, Little Haiti, Little River Industrial District, River Corridor, the Garment District and the Omni area.
In considering the amendment, the City gave particular significance to the fact that the Restricted Commercial designation would allow greater flexibility in the development of the property. Such greater flexibility is consistent with the promotion of a diversification in the mix of industrial and commercial activities.
The mix of uses permitted under the Restricted Commercial land use classification will promote urban infill and serve to prevent urban sprawl. As such, the amendment is consistent with Policy LU-1.3.6.
FLUE Objective LU-1.6 provides as follows:
Regulate the development or redevelopment of real property within the City to ensure consistency with the goals, objectives and policies of the Comprehensive Plan.
This Objective (and its underlying policies) is not relevant because it pertains specifically to land development
regulations. Even so, there was no evidence to show that the amendment is inconsistent with the Objective.
Potable Water Element Objective PW-1.2 and Natural Resource Conservation Objective R-2.1 are identical and provide as follows:
Ensure adequate levels of safe potable water are available to meet the needs of the City.
Petitioners presented no evidence that the amendment is inconsistent with either Objective. Rather, they asserted that in evaluating the amendment application, the City failed to do an independent analysis to address the availability of potable water. (The City relied on information provided by Metro-Dade County.)
The City's concurrency analysis revealed that potable water supplies will be available to the City even after the amendment becomes effective. Petitioners also failed to provide any evidence that the potable water usage under the Restricted Commercial classification would exceed that which may occur under the Industrial land use classification. Further, Petitioners failed to provide any evidence that there is a potable water deficiency in the City, or that the amendment would cause one. Finally, there was no evidence that the reliance on information provided by other local governments was unreasonable.
Transportation Element Objective TR-1.1 provides as follows:
All arterial and collector roadways under County and State jurisdiction that lie within the City's boundaries will operate at levels of service established by the respective agency. All other City streets will operate at levels of service that are consistent with an urban center possessing an extensive urban public transit system and characterized by compact development and moderate-to-high residential densities and land use densities, and within a transportation concurrency exception area (TCEA). The City will monitor the levels of service of all arterial and collector roadways to continue to develop and enhance transportation strategies that promote transit and minimize the impacts of the TCEA.
Petitioners contend that the concurrency analysis performed by the City assumed that an unreasonably high percentage of persons accessing the property would use a form of transportation other than an automobile. However, Petitioners' expert conceded that he had no expertise in traffic analysis, and that the City's analysis was performed by persons who did. Because the challenge is based on criticism that is not supported by credible expert testimony, the assertion must necessarily fail.
Coastal Management Element Objective CM-3.1 provides as follows:
Allow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami.
Florida Administrative Code Rule 9J-5.003(137) defines "water-dependent uses" as "activities which can be carried out only on, in or adjacent to water areas because the use requires access to the water body for water-borne transportation including ports or marinas; recreation; electrical generating facilities; or water supply."
Witness Payne, who is a tug boat captain, stated that the United States Coast Guard requires vessels over five hundred gross tons to "leave the port, seek shelter" in the event of a hurricane and that Intervenor's property is a destination for boats seeking shelter from a hurricane.
Because the land use on the property is Industrial, there is no requirement that a marina or any other water-related facility be located on the property as an available site for boats seeking shelter from a hurricane, even in the absence of the amendment. In addition, the Restricted Commercial land use category permits commercial marinas; therefore, the amendment in no way prevents the property from serving as a destination for boats over five hundred gross tons seeking shelter.
Finally, because the property can already be developed in such a manner that it would be used by large numbers of
persons (e.g., offices and malls), there is no basis upon which to conclude that the amendment will have any impact on the potential for loss of human life and destruction of property by hurricanes.
Natural Resources Element NR-1.3 provides as follows:
Maintain and enhance the status of native species of fauna and flora.
Although the parties agree that there are manatees in the Miami River, Petitioners failed to provide any evidence identifying locations along the Miami River where such manatees are found, or any evidence that the amendment would have any impact on those manatees.
It is fair to conclude that by eliminating the potential for development that might include such uses that involve noise, fumes, smoke, and hazardous wastes, this will enhance the status of native species of flora and fauna.
Capital Improvements Element Objective CI-1.4 provides as follows:
Ensure that public capital expenditure within the coastal zone does not encourage private development that is subject to significant risk of storm damage.
Contrary to Petitioners' assertion, this Objective does not provide that the City should discourage development in the coastal zone. For example, there are other areas of
substantial development within the coastal zone, such as Brickell Avenue.
The amendment does not trigger the expenditure of public funds for capital improvements. This is clearly demonstrated by a comparison of development permitted under the Industrial and Restricted Commercial land use classifications. Due to the intensity of development allowed under either land use classification, there is no basis upon which to conclude any development under the Restricted Commercial land use classification will require any greater infrastructure expenditures than development under the Industrial land use classification.
Based on the foregoing, it is fairly debatable that the map amendment is internally consistent with other provisions of the Plan.
Data and analysis
Petitioners contend that the amendment "is not based on the best available, professional acceptable, existing data," as required by Florida Administrative Code Rule 9J-5.005 and Section 163.3177, Florida Statutes. However, they failed to offer any evidence that the City failed to consider any relevant data in existence at the time the amendment was adopted, or that the City failed to appropriately react to that data.
The preponderance of the evidence supports a finding that the City had sufficient data and analysis available at the time the amendment was adopted to justify its approval. For example, the staff considered data provided by Balbino in its application package; data (such as potable water and wastewater transmission capacities) supplied by Metro-Dade County; the Miami River Master Plan; maps; the target area plans for Allapattah; the current Plan, including the extensive data and analysis supporting the Plan found in Volume II; and other related information, including support by citizen groups from the Allapattah area. In response to that data, among other things, the staff performed a concurrency management analysis concerning the availability of public facilities and levels of service (although actual levels of service cannot be determined until the City knows what is going to be built on the site), and it performed a land use study focusing on the area around the subject property and the compatibility of uses in the area with the new land use designation. A summary of the staff's efforts are found in a fact sheet and analysis package which accompanied the amendment.
One of Petitioners' primary criticisms on this issue is that the City relied upon Metro-Dade County to provide certain data pertaining to concurrency matters (traffic and
potable water). However, Petitioners failed to prove that this data was insufficient to support the adoption of the amendment or that it was unreasonable to rely on that information.
Moreover, at least with respect to traffic, small scale amendments are exempt from the requirement that plan amendment applications be accompanied by a traffic concurrency study.
Petitioners also contend that the City ignored certain data which shows that the amendment disrupts the existing land use pattern supporting water-dependent uses. As noted above, however, the City performed an extensive land use study to consider, among other things, these very concerns and concluded that the new land use designation is compatible with adjacent properties and consistent with the Plan.
It is fairly debatable that the challenged plan amendment is supported by professionally acceptable data and analysis, and that the City reacted to that data and analysis in an appropriate manner.
The Port of Miami River
Petitioners also argue that the Port of Miami River Sub-Element must be considered in determining whether the amendment is in compliance. This Sub-Element is found within the Plan's Ports, Aviation and Related Facilities Element. It
is an optional element not required under Chapter 163, Florida Statutes. The Plan defines the Port of Miami River as:
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 the 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.
The private shipping companies identified as comprising the Port of Miami River are listed in Volume II of the Plan. The location of each of those companies is also shown. See Joint Exhibit 3, Section VIII, page 35. An updated list is found in the City's Evaluation and Appraisal Report. (A few companies are located outside the City's boundaries in unincorporated Dade County.) None are located on 18th Avenue, where the subject property is found. Over the years, the City has consistently interpreted this Sub-Element as applying only to properties that are listed in Volume II of the Plan. Because Intervenor's property is not included within the definition of the Port of Miami River, in reviewing the application, the City adhered to its long-standing interpretation that the Sub-Element was not applicable or relevant to the analysis of the amendment's consistency with the Plan. See Monkus, supra at 33- 34.
Under the majority opinion in Payne II, however, the Sub-Element appears to be relevant and is "intended to apply to the 'uses along the banks of the Miami River", and not just to specific companies named in the definition.3 Even so, only Objective PA-3.3 would require consideration.4 That objective reads as follows:
The City of Miami shall coordinate its Port of Miami River planning activities with those of ports facilities and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County's Port of Miami.
Petitioners failed to present any evidence concerning a lack of coordination activities relative to the FLUM amendment. Coordination does not mean that adjacent local governments or other interested persons have veto power over the City's ability to enact plan amendments. City of West Palm
Beach et al. v. Department of Community Affairs et al., 2005 Fla. ENV LEXIS 191 at *34, DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM (DOAH July 18, 2005, DCA Oct. 21, 2005). Rather,
the City needs only take into consideration input from interested persons. Id. at *35.
The City established that pursuant to its Resolution No. 00-320, before any resolution, ordinance, or issue affecting the Miami River is considered, the City Manager is required to inform the Miami River Commission (MRC) of that impending
matter. The MRC serves as a clearinghouse for all interests of the Miami River, including residential, economic, and industrial interests, as well as the other entities listed in the Objective. See §§ 163.06 et seq., Fla. Stat. The evidence shows that the MRC was notified before the amendment was considered, and that it provided a recommendation to the Commission. At the same time, Petitioners, their expert witness (Mr. Luft), and other interested persons were also given an opportunity to provide input into the process before the amendment was adopted. Therefore, the requirements of the Objective and Sub-Element have been met.
Other Issues
Finally, in their Proposed Findings of Fact and Conclusions of Law, Petitioners contend that "[t]he FLUM amendment renders the Port of Miami River Sub-Element (goals, objectives, and policies) vague, ambiguous, permissive, and without measurable and predictable standards." They also assert that the amendment "is an over-allocation of residential land use and is not economically feasible." Because these issues were not specifically raised in the Amended Petition or the parties' Pre-Hearing Stipulation, to the extent they are not otherwise discussed above, they have been waived. Even if the
issues had been adequately pled, there is insufficient evidence to support these claims.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 163.3187(3), Florida Statutes.
Except for Durham Park, the City and Intervenor agree that all other Petitioners are affected persons within the meaning of Section 163.3184(1)(a), Florida Statutes, and thus have standing to participate in this proceeding. As to Durham Park, they contend that based on its concession at the hearing that it does not own or operate a business, it cannot qualify as an affected person.
Section 163.3184(1)(a), Florida Statutes, defines an affected person in relevant part as follows:
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; . . . [and who have] also submitted oral or written comments, recommendations, or objections to the local government during the time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.
In Florida Wildlife Federation, Inc. et al. v.
Department of Community Affairs et al., DOAH Case No. 03-2164GM
(DOAH March 30, 2004; DCA July 16, 2004), 2004 Fla. ENV LEXIS
239, the Department concluded that "the definition of 'affected person' makes no distinction between different classifications of businesses," and that an affected person need not "have the trappings of 'traditional' business activities." Id. at *6.
Therefore, the lack of traditional business amenities such as a telephone number, occupational license, or office is not necessary to establish standing. It went on to hold that activities such as "participation in local government activities in furtherance of [the entity's] declared corporate purpose" and "involvement by the [affected person] in the local planning process" were sufficient to satisfy the statute. Id. at *8.
Using these liberal standards, it is concluded that while Durham Park does not operate a business in the classic sense, and its declared corporate purpose is unknown, it is occasionally involved in the local planning process. Therefore, it is arguably an affected person within the meaning of the statute.
Under Section 163.3187(3)(a), Florida Statutes, the local government's determination that the small scale amendment is in compliance is presumed to be correct. Further, this determination will be sustained unless "it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of this act." Therefore, the
test is whether the evidence supports or contradicts the determination of the City. Denig v. Town of Pomona Park, DOAH Case No. 01-4845GM, 2002 Fla. ENV LEXIS 220 at *7-8 (DOAH June
18, 2002; Admin. Comm. Oct. 23, 2002). This specific statutory burden of proof has been applied in this proceeding.
Based on the preponderance of the evidence, as described in the Findings of Fact, it is concluded that the plan amendment involves a use of ten acres or fewer and thus complies with the size requirement for small scale development amendments in Section 163.3187(1)(c)1., Florida Statutes; is internally consistent with the City's Plan, as required by Section 163.3187(2), Florida Statutes; and is based upon adequate data and analysis, as required by Florida Administrative Code Rule 9J-5.005(2) and Section 163.3177(8), Florida Statutes. This being so, the City's determination that the plan amendment is in compliance must be sustained. Denig, supra.
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 small scale development plan amendment adopted by Ordinance No. 2055.1 is in compliance.
DONE AND ENTERED this 16th day of May, 2006, in Tallahassee, Leon County, Florida.
S
DONALD R ALEXANDER
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 May, 2006.
ENDNOTES
1/ All statutory references are to Florida Statutes (2005). 2/ In the main, Petitioners' filing does not identify any
specific portions of the record on which the proposed findings of fact are based. In the few instances where citations to the record are given, Petitioners have often cited the entire testimony of a witness or witnesses as supporting a particular finding. For example, proposed findings of fact 25 and 28 cite to pages 72-130, 141-224, and 465-574 of the Transcript as supporting one sentence in each paragraph. The lack of specific citations diminishes the value of the filing.
3/ Unlike the record before the Court in Payne II, the record in this case includes the names of the original fourteen shipping companies who are included in the definition of the Port of Miami River. An updated list is found in the City's Evaluation and Appraisal Report. (In making its determination, the Court noted that "the footnote cannot be definitional as there is no record evidence of any list defining the 14 companies.") There is also evidence here that the City has consistently interpreted this provision in the same manner for many years, with the acquiescence of the Department. Finally, the Court's interpretation of the Sub-Element arose in the context of whether
Payne and the Marine Group were "substantially affected persons" who had standing to file a circuit court action under Section 163.3215, Florida Statutes, and not in an proceeding under Section 163.3187, Florida Statutes, to determine whether an amendment was in compliance. Whether these facts and circumstances would have influenced the Court's decision is debatable. In any event, the undersigned has followed the Payne II rationale in resolving the issues in this case.
4/ Besides one goal, the Port of Miami River Sub-Element includes three objectives and their underlying policies. See Joint Exhibit 1, pages 48-49. Objective PA-3.1, and underlying Policies PA-3.1.1, 3.1.2, and 3.1.3, all relate to the purpose and scope of land development regulations for the Port of Miami River and are therefore not relevant. Objective PA-3.2 and underlying Policy PA-3.2.1 pertain to the coordination of surface transportation access to the Miami River with the traffic and mass transit system shown on the traffic circulation map series and are not germane to this amendment.
COPIES FURNISHED:
Thaddeus Cohen, Secretary Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 100
Tallahassee, Florida 32399-2100
David L. Jordan, Acting General Counsel Department of Community Affairs
2555 Shumard Oak Boulevard, Suite 325
Tallahassee, Florida 32399-2100
Andrew W. J. Dickman, Esquire
Law Office of Andrew Dickman, P.A. Post Office Box 771390
Naples, Florida 34107-1390
David C. Ashburn, Esquire Greenberg Traurig, P.A. Post Office Box 1808
Tallahassee, Florida 32302-1808
Paul R. Lipton, Esquire Greenberg Traurig, P.A. 1221 Brickell Avenue
Miami, Florida 33131-3224
Rafael Suarez-Rivas, Esquire Assistant City Attorney
444 Southwest 2nd Avenue, Suite 945 Miami, Florida 33130-1910
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 21, 2006 | Agency Final Order | |
| May 16, 2006 | Second RO | Small Scall Amendment on Miami River less than 10 acres in size, consistant with plan, and supported by data and analysis. |
| Mar. 03, 2006 | Opinion | |
| Jan. 05, 2006 | Remanded from the Agency |
