STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LIMONAR DEVELOPMENT, LLC, A FLORIDA LIMITED LIABILITY COMPANY; WONDERLY HOLDINGS, LLC, A FLORIDA LIMITED LIABILITY COMPANY, AND MILLS FAMILY, LLC, A FLORIDA LIMITED LIABILITY COMPANY, Petitioners, vs. MIAMI-DADE COUNTY, Respondent. / TROPICAL AUDUBON SOCIETY AND MICHELLE GARCIA, Petitioners, vs. MIAMI-DADE COUNTY, Respondent. / | Case No. 18-5695GM Case No. 18-5696GM |
RECOMMENDED ORDER
A duly-noticed final hearing was held in this matter in Miami, Florida, on July 16 through 19, and 23 through 26, 2019, before Suzanne Van Wyk, an Administrative Law Judge assigned by the Division of Administrative Hearings.
APPEARANCES
For Petitioners, Limonar Development, LLC; Wonderly Holdings, LLC; and Mills Family, LLC:
John C. Lukacs, Esquire
John C. Lukacs, P.A., Trial Lawyers 75 Valencia Avenue, Suite 600 Coral Gables, Florida 33134
Francisco J. Pines, Esquire Francisco J. Pines, P.A.
3301 Ponce de Leon Boulevard, Suite 220 Coral Gables, Florida 33134
For Petitioners, Tropical Audubon Society and Michelle Garcia: Paul J. Schwiep, Esquire
Coffey Burlington, P.L.
2601 South Bayshore Drive, Penthouse 1
Miami, Florida 33133
Richard J. Grosso, Esquire Richard Grosso, P.A.
6511 Nova Drive, Mail Box 300
Davie, Florida 33317
For Respondent, Miami-Dade County:
Dennis Alexander Kerbel, Esquire Christopher J. Wahl, Esquire
Miami-Dade County Attorney’s Office 111 Northwest First Street, Suite 2810
Miami, Florida 33128
STATEMENT OF THE ISSUE
Whether the Miami-Dade County Comprehensive Plan Amendment adopted by Ordinance 2018-109 on September 27, 2018 (the “Plan
Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1
PRELIMINARY STATEMENT
On October 26, 2018, Petitioners, Limonar Development, LLC; Wonderly Holdings, LLC; and Mills Family, LLC (the “Limonar Petitioners”), filed a Petition with the Division of Administrative Hearings (“Division”) challenging the Plan Amendment as not based on relevant and appropriate data and analysis and internally inconsistent with the Miami-Dade County Comprehensive Plan (“the Plan”), in violation of the Community Planning Act, chapter 163, part II, Florida Statutes. That same date, Petitioners, Tropical Audubon Society and Michelle Garcia (the “Audubon Petitioners”), filed a Petition with the Division challenging the Plan Amendment on similar grounds. The cases were assigned to the undersigned, who entered an Order of Consolidation on November 9, 2019, and scheduled the consolidated cases for hearing on April 15 through 19, 2019.
Following the disclosure of expert witnesses, the parties jointly moved for a continuance of the final hearing, which was granted. The case was rescheduled for final hearing on July 16 through 19, and 23 through 26, 2019, and commenced as rescheduled.
At the final hearing, the Limonar Petitioners offered the testimony of Henry Iler, accepted as an expert in comprehensive planning, and introduced Exhibit 69, which was admitted in evidence. Limonar Petitioners proffered Exhibit 1, which was not admitted, but travels with the record of this proceeding.
1 Except as otherwise noted, all references to the Florida Statutes are to the 2018 version, which was in effect when the Plan Amendment was adopted.
The Audubon Petitioners offered the testimony of Petitioner Michelle Garcia; Thomas Hawkins, accepted as an expert in comprehensive planning; Dr. Chris McVoy, accepted as an expert in the Everglades, wetlands, and water resources; and Walter Kulash and Juan Mullerat, accepted as experts in transportation planning. Audubon Petitioners’ Exhibits 10, 13, 15, 15a, 16,
21, 24, 24a, 41, 56, 59, 61, 73, 87, 102, 103, 112, 123, 125 through 128, and
133 through 135 were admitted in evidence.
Respondent introduced the testimony of Albert Sosa; Vinod Sandanasamy, accepted as an expert in transportation planning; Michael Spinelli, accepted as an expert in wetlands; Wilbur Mayorga, P.E., accepted as an expert in wellfields; and Mark R. Woerner, accepted as an expert in comprehensive planning. Respondent’s Exhibits 1 through 12, 14 through 16, 21, 30, 34, 38,
44, 49, 53, 54, 59, 64, 65, 72 through 77, 80, 81, 96, 99, 102, 103, 106, 114,
132, 134 through 138, and 140 were admitted in evidence.
The 12-volume Transcript of the final hearing was filed with the Division on September 20, 2019. The parties requested and received three separate extensions to file proposed recommended orders in this complex case. The Order Granting Third Extension of Time and Extension of Page Limitation required the parties to file proposed recommended orders no later than January 2, 2020, 105 days following filing of the Transcript.2 Pursuant to the parties’ joint request, the parties were also allowed to file proposed recommended orders of up to 100 pages in length.
2 By agreeing to a filing date for the proposed recommended orders that is more than 10 days after the date the Transcript was filed, the parties waived the requirement that this Recommended Order be issued within 30 days after the Transcript was filed. See Fla. Admin. Code R. 28-106.216(2) (2018).
The parties timely filed Proposed Recommended Orders on January 2, 2020, which have been carefully considered by the undersigned in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties and Standing
Respondent, Miami-Dade County (“the County”), is a political subdivision of the State of Florida with the duty and authority to adopt and amend a local government comprehensive plan, pursuant to section 163.3167, Florida Statutes.
The Limonar Petitioners are limited liability companies under the laws of the State of Florida whose principal places of business are in Florida. The Limonar Petitioners own property within the area affected by the Plan Amendment.
Petitioner, Michelle Garcia, resides and owns property in the County near the area affected by the Plan Amendment.
Petitioner, Tropical Audubon Society (“Tropical”), is an environmental organization in South Florida dedicated to conserving and restoring South Florida ecosystems, focusing on birds and other wildlife, as well as their habitats. Tropical owns property in the County.
Each of the Petitioners submitted oral or written comments, recommendations, or objections concerning the Plan Amendment to the County during the time period beginning with the Plan Amendment adoption hearing and ending with the Plan Amendment transmittal hearing.
The parties stipulated that Ms. Garcia’s substantial interests will be adversely affected by the Plan Amendment given that her property is located in the County near the area affected by the Plan Amendment.
The Plan Amendment
The Plan Amendment amends the Plan to allow an extension of State Road 835 (also known as the Dolphin Expressway) from its current terminus
at Northwest (NW) 137th Avenue and NW 12th Street to the West Kendall suburban area of the County. The approximate 13-mile extension is planned as a six-lane expressway from its current terminus to Southwest (SW)
8th Street and SW 167th Avenue, then continuing as a four-lane expressway to connect with SW 136th Street in Kendall. The proposed extension is referred to herein as the “new corridor.”
The Plan Amendment incorporates the new corridor on the County’s Future Land Use Map (“FLUM”), as well as the Transportation Element map series, including both the traffic circulation and Mass Transit subelements.
Additionally, the Plan Amendment changes some existing, and adds several new, policies in the Land Use, Transportation (including Traffic Circulation and Mass Transit subelements), Open Space, and Intergovernmental Coordination Elements.
The new corridor was first envisioned in 2012, when the Miami-Dade Metropolitan Planning Organization (“MPO”), since renamed the
Transportation Planning Organization (“TPO”), added the southwest extension of SR-836/Dolphin Expressway to its Long-Range Transportation Plan (“LRTP”) as a “partially funded project.” “Partially funded” means that the TPO authorized the project to move forward for study—in the case of the new corridor, to undertake a Project Development and Environment (“PD&E”) Study—but that the project is not yet approved for construction funding.
The LRTP describes the purpose and need for the new corridor as follows:
The new extension will address existing highway congestion and enhance mobility in the fastest growing area of the county. The purpose of the SR- 836 (Dolphin) SW Extension is to: Improve system connectivity, Improve access to and from the area to major employment centers such as the MIA, the MIC, the Port of Miami, Downtown Miami, Doral, as well as educational and commercial centers
within the study area, Provide north south expressway access to serve existing and future travel demand, Improve hurricane/emergency evacuation routes and travel times, Evaluate multimodal transportation opportunities to improve connectivity to the fast growing southwest area of Miami-Dade County, Evaluate the best alternative for the SR-836 (Dolphin) SW Extension that is technically sound, environmentally sensitive and publicly acceptable.
The new corridor is to be funded by the Miami-Dade Expressway Authority (“MDX”).3
UDB and UEA
The entirety of the new corridor will be located outside of the County’s urban development boundary (“UDB”). Some portions of the new corridor lie within the area known as the urban expansion area (“UEA”), but the majority of the new corridor lies outside the UEA.
The UDB is a defining feature of the Plan, which distinguishes the area where urban development may occur through the year 2020 from areas where it should not occur. The County’s plan accommodates urban development within the UDB by increasing development densities and intensities inside the UDB.
The UDB was originally established in 1975 and comprised 233,000 acres. The UDB boundary was significantly amended in 1988, following enactment of Florida’s Growth Management Act, by the addition of 16,000 acres. Between 1990 and 2012, only about 2,400 acres have been added to the UDB, most of which was added by a 2006 amendment to the Plan.
At least in part, the UDB operates to limit development pressure on the County’s agricultural lands located to the west of the UDB between the urbanized area and the Everglades National Park. A 2012 Environmental
3 MDX was dissolved by chapter 2019-169, Laws of Florida. The legislation has been challenged and a current appeal is pending before the First District Court of Appeal. See Fla. Dep’t of Transp. v. MDX, Case No. 19-3625 (Fla. 1st DCA 2019).
Protection Agency study noted, “the dwindling supply of agricultural land is an especially urgent issue.” The study characterized the County as
“dangerously close” to losing its “critical mass” of land in active agriculture usage.
The Plan provides for expansion of the UDB to provide additional countywide development capacity “when the need for such change is determined to be necessary through the Plan review and amendment process.”
The UEA was established in 1993 and is the area currently projected to be needed to accommodate development in the area between the 2020 UDB boundary and 2030 UEA boundary. Until this area is brought into the UDB through an amendment to the Plan, development within the UEA is limited to uses consistent with “Agriculture” and “Open Land” areas, as defined in the Plan.
Residential development outside the UDB is limited to one dwelling unit per five acres (1du/5acres).
New Corridor Path
The new corridor is planned to pass through lands that are protected by a variety of regulations and development limitations. Figure 1 depicts the location of the new corridor on the Plan Land Use Map, identified as the solid black line beginning at the western end of NW 12th Street and following a winding path west and southwest to its termination at SW 136th Street.
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From its connection with the existing SR 836 corridor, the new corridor will first traverse an area designated “Open Land,” which, according to the Plan is “set aside for uses other than urban development.” It is more than “simply surplus undeveloped land,” and is intended to serve resource-
based functions like agriculture or development of potable water supply. According to the Plan, “Open Land areas primarily consist of wetlands.” The only use definitively allowed in this subarea is rural residential. The Plan provides that all other proposed uses will be reviewed on a case-by-case basis.
More particularly, the new corridor will traverse the County’s Open Land Subarea 3, which contains the Tamiami-Bird Canal Basins and the eastern portion of the North Trail and Bird Drive Everglades Basins. The basins are recharge areas for the Biscayne Aquifer, the primary source of the County’s drinking water. The Plan provides that the following land uses may be considered for approval in this subarea:
[R]ural residences at one dwelling unit per 5 acres (“1 du/5”), compatible institutional uses, public facilities, utility and communications facilities, seasonal agricultural use, recreational use, or limestone quarrying and ancillary uses.
Uses that could compromise groundwater quality shall not occur in this area. Any land alteration and development in the Bird Drive or North Trail basins shall conform to the wetland basin plans adopted for those basins pursuant to policies of [the Plan].
The new corridor will traverse a portion of the Bird Drive Basin outside the UDB. Existing development in that area is limited to agriculture and the C-4 detention basin. The detention basin is utilized by the South Florida Water Management District (“District”) to hold water drained from the C-4 canal prior to storm events in order to prevent flooding of the Sweetwater residential community lying to the north.
A majority of the new corridor will be located within the County’s West Wellfield protection area, and a portion will run through the 30-day and 100-
day travel-time contours. The contours represent the time it takes for a substance released at the contour line to travel to a production well.4
A short segment of the new corridor, approximately three-quarters of a mile, will traverse the Pennsuco wetlands, characteristically high-quality swamps and wet prairies not suited for agriculture or urban development. It is a restored wetland area that has been used as a mitigation project for developers and rock miners over the last 20 to 30 years (i.e., a “mitigation bank”). The mitigation project is under the jurisdiction of the District and other environmental agencies, and is almost complete.
The Pennsuco wetlands are also designated as critical habitat for endangered species, including the wood stork, the Florida bonneted bat, the Everglades snail kite, and the Florida Panther.
The Pennsuco wetlands are designated on the FLUM as Environmental Protection (“EP”). According to the Plan, the EP designation applies to those areas in the County “most environmentally significant, most susceptible to environmental degradation, and where such degradation would adversely affect the supply of potable fresh water or environmental systems of County, regional, State, or national importance.”
The final stretch of the new corridor will traverse Agriculturally- designated lands, mostly within the UEA. Land with this designation “contains the best agricultural land remaining in [the County].”
The Plan provides that protection of viable agriculture is a priority of the County. Principle uses allowed in this category “should be” agriculture and uses ancillary to,5 and directly supportive of, agriculture and farm residences. Notably, the Plan provides that, in order to protect the
4 The times are calculated based on a non-reactive substance, i.e., water. Chemicals and other contaminants may have different actual travel times.
5 Uses ancillary to agriculture are those related to preserving, processing packaging, or selling agricultural products; farm supplies; and sale and service of farm machinery and implements.
agricultural industry, “uses and facilities that support or encourage urban development are not allowed in this area.”
The Comprehensive Everglades Restoration Plan
The Comprehensive Everglades Restoration Plan (“CERP”) is an extensive environmental restoration project primarily aimed at restoring as much natural Everglades wetland habitat as possible and re-establishing healthy freshwater flows to parts of the Everglades which have suffered from historic alteration of its hydrology, a result of fragmentation of the ecosystem for urban development and agriculture.
CERP is a multi-decade, inter-agency process implemented primarily by the District and the U.S. Army Corps of Engineers (“the Corps”).
CERP includes approximately 68 individual projects, approved by a formal process set out in federal law. The projects are compiled in a “yellow book,” originally produced in 1999 and delivered to Congress for approval. Some projects are set forth in great detail, while others are conceptual, but each project identifies a set of hydrologic or ecologic objectives that it is proposed to meet.
Restoring surface water flows to the Everglades is a balancing act. While the Everglades is in need of more fresh water, allowing unregulated flows to the Everglades means flooding urban and agricultural properties which were once part of the Everglades system. On the other hand, the urban and agricultural areas depend on surface water flows for water supply, directly or indirectly through groundwater recharge (to prevent saltwater intrusion), for drinking water and agricultural production. CERP regulates the free flow of surface water to provide needed water for urban and agricultural uses, and avoid flooding those areas, while providing as much fresh water to the Everglades as possible.
Large portions of the four-square mile Bird Drive Basin have been acquired by the District and the Department of the Interior (“DOI”) to implement a CERP project known as Component U.
Component U has several major objectives, including goundwater recharge, reducing seepage from the Everglades National Park buffer areas, enhancing and maintaining wetland viability within the basin, flood attenuation, water treatment of outflows from west Dade wastewater treatment plant, and supplying water to meet demands of the downstream conveyance systems.
The state conservation lands north and east of the basin, particularly conservation area 3A, are, at times, inundated with so much water that the wetland literally drowns. CERP projects, including the L31 canal (adjacent to Krome Avenue) and the small canal associated with the Dade/Broward levee, were designed to “shuttle” collected water from the conservation areas and store it for proportionate distribution to both urban areas and the Everglades National Park.
Component U is envisioned as both a surface water storage and treatment area, to assist in regulation of water flowing to both the Everglades and the urban areas from the conservation areas to the north and north east. It is related to a larger project to reroute water flowing through the L31 canal, west of Krome Avenue, to the east side of the Bird Drive Basin and eventually into the Bird Drive Canal, utilizing the large, undeveloped basin for storage and treatment, as well as flood control. Additionally, Component U would provide an aquifer recharge function while storing excess water, which would benefit the West Wellfield lying due south.
Because of its location relative to several other CERP projects, the Bird Drive Basin plays a critical strategic role in the overall plan for restoration of the southern Everglades. The water quality, conveyance, and storage objectives it is required to meet, along with its flood-attenuation objectives, are relied upon as part of the planning and operation of the other CERP projects in the region to restore the hydrology of the state-owned Water Conservation Areas, Everglades National Park and Florida Bay, and Biscayne Bay. The Bird Drive Basin project is a necessary flow way for
restored water levels along the eastern edge of the Everglades, necessary to prevent the flow of too much water through the more central portions of the Everglades, which results in drowning out native plant and animal species.
Among the goals of the project is to recharge groundwater and drinking water supplies, and to buffer developed areas in the County from flooding that would result from the higher restored water levels into Everglades National Park.
The Bird Drive Recharge project is important to the County as a seepage management project to ensure that restoration of water levels does not affect County landowners and to provide the County with water supply to nearby wellfields.
These wetlands are a hydrological buffer between the high water table of Everglades National Park and the much lower water table of the developed areas east of Krome Avenue. This buffer reduces the hydrological gradient of the area, thereby reducing groundwater seepage from the park.
Challenges to the Plan Amendment
Petitioners allege (as stipulated by the parties) that the Plan Amendment: (1) creates internal inconsistencies with numerous existing Plan goals, objectives and policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by
section 163.3177(6)(a)9.; (3) violates the requirement in section 163.3177(6)(d)2.k., that the Plan maintain a conservation element that directs incompatible “future land uses” away from wetlands; (4) violates the requirements in section 163.3177(6)(b)2.a., e., and 3.a., that the Plan maintain a transportation element “to plan for a multimodal transportation system,” address “[a]ll alternative modes of travel,” “identif[y] . . . land use densities, building intensities, and transportation management programs to promote public transportation systems in designated public transportation corridors,” and address “provision of efficient public transit services” and the
requirement in section 163.3177(6)(b)1. that the element reflect certain “data,
analysis, and associated principles and strategies”; (5) fails to be “based upon relevant and appropriate data and analysis,” as required by
section 163.3177(1)(f); (6) fails to “be based upon surveys, studies, and data regarding the area, as applicable, including the character of undeveloped
land,” as required by section 163.3177(6)(a)2., and to be based on an “analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site,” as required by section 163.3177(6)(a)8.; and (7) violates the requirement of section 163.3177(1) that the Plan “maintain[] meaningful and predictable standards for the use and development of land and provide[] meaningful guidelines for the content of more detailed land developments and use regulations.”
Petitioners’ umbrella contention is that the Plan Amendment is contrary to the Plan as a whole—which limits urban services and development to within the UDB, prioritizes implementation of CERP, seeks to preserve remaining agricultural areas and a viable agriculture industry, and is completely dependent on a sensitive aquifer for drinking water—by allowing a four- and six-lane expressway outside of the UDB, through an area identified for a CERP project, bisecting agricultural areas, through a wetland preservation area, and within the West Wellfield.
Petitioners’ arguments can be categorized generally as concerns with land use, environment, CERP, agriculture, and transportation.
UDB and Land Development Issues
Petitioners contend that constructing the new corridor outside of the UDB is inconsistent with the purpose of the UDB, and with the overarching construct of the Plan to achieve the desired development form while protecting both sensitive natural resources and agriculture.
The Plan provides that the UDB distinguishes “the area where urban development may occur through the year 2020 from areas where it should not occur.” Translating this concept to infrastructure investment, the Plan
provides that “public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB.” (emphasis added). The Plan further provides, “Critical in achieving the desired pattern of development is adherence to the 2020 UDB and 2030 UEA boundary,” and that “since its inception [the Plan] has provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined.”
Petitioners’ expert planning witness, Mr. Hawkins, explained that “this regulatory line is not one that just says we are going to have urban land uses on one side and not on the other. We are also going to limit the provision of urban services across the line.”
The County offered little response to this allegation. In a series of leading questions on direct examination, Mr. Woerner was asked whether the Plan Amendment is inconsistent with policy language that begins, “Given the fundamental influences of infrastructure and service availability on land markets and development activities …” Mr. Woerner gave a conclusory “no” answer, to which Mr. Kerbel asked, “And is that for the reasons you’ve already addressed?” Mr. Woerner agreed. However, none of the prior questions addressed anything regarding public expenditures for urban infrastructure.
The Plan Amendment proposes development of urban infrastructure outside the UDB, and thus, outside of the envelope within which the Plan dictates public expenditures for urban infrastructure “will be confined,” in contravention of the Plan’s direction that adherence with the UDB/UEA construct is “critical” to achieve the desired pattern of development for the County.
The County contends that the new corridor is not “development,” a position which is untenable and is addressed in the Conclusions of Law.
Petitioners proved the Plan Amendment is inconsistent with the unnumbered policy statements in paragraph 46 appearing on pages I-60, I-61, and I-74 of the Plan.6
Petitioners further allege the Plan Amendment is inconsistent with Plan policies that discourage urban sprawl, “emphasize[] concentration and intensification of development around centers of activity” and “high intensity, well-designed urban centers,” and “seek to prevent discontinuous, scattered development at the urban fringe,” such that “[u]rban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided . . . [and] [a]reas designated Environmental Protection shall be particularly avoided.” Petitioners identify the following goals, objectives, and policies in support of these objections: Land Use Element Objective LU-1 and Policies LU-1B and LU-1O; Objective LU-2 and Policy LU-2B; Policy LU-8G; Policy LU-10A; Transportation Policy TC-6A; and Capital Improvement Element Objective CIE-5 and Policy CIE-5A. Petitioners’ arguments that the Plan Amendment fails to discourage urban sprawl are based on many of the same Plan policies.
Petitioners contend that the mere existence of the new corridor will increase development pressure, and induce sprawl development, outside of the UDB contrary to Plan policies promoting compact, high-intensity developments in urban centers. This argument is not novel and can be
summarized as, “If you build it, they will come.”
Petitioners are not wrong, and the expert County planning staff raised the same concern during review of the Plan Amendment application, stating:
While roadways facilitate long-distance and local travel and provide access to real property, they also
6 Provisions such as these, which are referred to as “interpretive text,” are contained in the Land Use Element section titled, “Interpretation of the Land Use Plan Map: Policy of the Land Use Element.” Although not among the element’s numbered goals, objectives, and
policies, the interpretive text is expressly “adopted as County policy.” Furthermore, LU-5C requires “planning activities pertaining to development or redevelopment and the provision of public services and facilities in [the County] shall be consistent with … the locations and extent of future land uses as identified by the [FLUM] map and its interpretive text.”
significantly affect the use and development of land in their immediate vicinity. In high growth areas such as [the County], any reduction in travel time between centers of population and commerce directly increases competition in the land market between urban uses, including residential and commercial uses. This could generate increased demand for development of land adjacent to the proposed expressway corridor. Because the proposed alignment is generally adjacent to but outside the UDB, the [new corridor] could have the unintended consequence of increasing development pressure on land outside the UDB, including current agricultural lands, if the proposed amendment only addressed the future construction of the roadway.
In response to this concern, staff recommended adoption of, and the Plan Amendment was adopted with, the following new Policy:
Traffic Circulation Subelement Policy TC-1M. [The County] approves the [new corridor] only to the extent necessary to relieve existing traffic congestion in the southwestern part of the County and to provide a reliable, robust, and faster connection to Downtown Miami and other major trip attractors across the County. To discourage urban sprawl within the Area of Impact of [the new corridor] … the County’s Concurrency Management System shall be amended to remove the additional LOS/capacity that the roadways in the Area of Impact would experience due to the diversion of trips resulting from the construction of [the new corridor] could not be used to demonstrate concurrency. The purpose of this policy is to assure that the additional capacity attributable to the [new corridor] cannot be used to support further development in the Area of Impact.
In other words, “If you build it, they cannot come.”
Petitioners raised many arguments to demonstrate that this language would not be effective to truly prevent urban sprawl outside the UDB. They introduced the testimony of Walter Kulash, who exclaimed that it would “be
absurd” to create excess roadway capacity that could not be used by developers, and that, as a transportation engineer, “it is not at all clear to me how the chain of computation would work here.”
However, as explained by Mr. Sandanasamy, the County’s expert transportation planner, the concurrency restriction will be implemented by comparing the roadway capacity figures prior to the opening of the roadway to any future traffic counts, to determine how much those traffic counts have been reduced. He gave the following example: Assume an arterial with a capacity of 35,000 trips, and before the new corridor opened, the actual amount of traffic counted is 30,000 trips. That means the arterial had a remaining capacity of 5,000 trips before the opening of the new corridor. Assume that when traffic is counted after the opening of the new corridor, the number of vehicles on that arterial drops to 28,000 trips—a reduction of 2,000 trips attributed to the new corridor—meaning that the remaining capacity of the arterial has increased from 5,000 trips to 7,000. Policy TC-1M would require the Concurrency Management System to log the capacity of the arterial as reduced by 2,000 trips, so that future applications would be measured against a roadway capacity of 33,000 trips.
Mr. Sandanasamy concluded that the policy is intended to “prevent urban sprawl [and] allow development to go on as it was, like this roadway doesn’t exist.”
The parties introduced the testimony of competing expert transportation planners on this subject; but, in the end, Petitioners’ expert, Juan Mullerat, conceded the issue, as follows:
Q. [Mr. Kerbel] And in the event that there is a process in which someone seeks to amend their land uses, they would have to address the fact that the road can't be used to show concurrency, right?
A. [Mr. Mullerat] Correct.
* * *
So at the end of the day that is why I am saying it is the same. Right now you don't have infrastructure, so you can't use it for concurrency. Once you put the infrastructure, this says that you won't be able to use that as -- in order to change the land use.
Q. Okay. So it is a wash?
A. It is a wash. It doesn't make—it is neither harder nor easier.
New Policy LU-3Q was added to further ensure the Plan Amendment did not encourage development in the agriculturally-designated lands. The policy reads as follows:
Any zoning action or amendment to [the Plan] that would approve any use other than direct agricultural production, the sale of agricultural produce, and permitted residential and Bed and Breakfast uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinated use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the [UDB] and b) within one mile of the right-of-way line of any portions of [the new corridor], shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where the applicable board issues a decision.
Petitioners claimed this policy was not based on data and analysis to demonstrate its effectiveness. To the contrary, the language of new Policy LU-3Q was modeled on language utilized when the County adopted the Plan
to allow widening of Krome Avenue, which lies outside the UDB, farther west than the new corridor. Even a cursory review of the FLUM reveals that the land uses adjacent to Krome Avenue remain agriculture. The County’s
experience with development surrounding Krome Avenue is data that has been available to, and was relied upon by, the County in adopting the subject Plan Amendment.
Petitioners did not prove that the Plan Amendment would induce additional urban development outside the UDB and in environmentally sensitive areas. Thus, Petitioners did not prove the Plan Amendment is inconsistent with Objective LU-1, which requires “the location and configuration of [the County’s] urban growth through the year 2030 shall
emphasize concentration and intensification of development around centers of activity”; Policy LU-1O, which requires the County to “seek to prevent discontinuous, scattered development at the urban fringe in the Agricultural Areas outside the UDB”; Objective LU-2, which provides that “[d]ecisions regarding … urban expansion … shall be based on the physical and financial feasibility of providing, by the year 2020, all urbanized areas with services at levels of service (LOS) which meet or exceed the minimum standards” in the CIE; Policies LU-2B, TC-4C, and CIE-5A, which provide that urban services and facilities, including roadways, which support or encourage “urban development in Agriculture and Open Land areas shall be avoided”; Policy LU-10A, which requires the County to “facilitate contiguous urban development, infill [and] redevelopment”; and TC-6A, which mandates that the County “shall avoid transportation improvements which encourage or
subsidize increased development in … environmentally sensitive areas.”
The remaining policies implicated by Petitioners are irrelevant to the Plan Amendment: Policy LU-1B, which provides that “major centers of activity” and “other concentrations of significant employment … shall be sited on the basis or metropolitan scale considerations at locations with good countywide, multi-modal accessibility”; Policy LU-1S, which requires the County Strategic Plan to be consistent with the Plan; Objective LU-5 and Policy LU-5B, which pertain to the consistency of development orders with
the Plan; and LU-8G, governing considerations for adding land areas to the UDB.
Environmental Considerations Wellfields
Petitioners allege the Plan Amendment is inconsistent with the following objectives and policies of the Conservation Element relating to protection of wellfields: CON-3, 3A, 3B; and CON-5F.
CON-3, 3A, and 3B provide, in relevant part, as follows:
Objective CON-3. Regulations governing approved wellfield protection areas shall be strictly enforced
….
CON-3A. No new facilities that use, handle, generate, transport or dispose of hazardous wastes shall be permitted within wellfield protection areas[.]
CON-3B. The water management systems that recharge regional wellfields shall be protected and enhanced.
The Plan Amendment does not adversely affect the County’s ability to enforce its approved wellfield regulations.
The new corridor is not a facility that uses, handles, generates, or disposes of hazardous wastes. Petitioners introduced testimony regarding the threat to the West Wellfield posed by trucks, carrying hazardous substances via the new corridor, potentially (and speculatively) spilling chemicals in an accident. Nevertheless, the greater weight of the evidence supports a finding that the new corridor is not a “facility” that transports hazardous wastes as contemplated by the policy.
The meaning of “water management systems” used in Policy CON-3B, was disputed by the parties. Petitioners introduced the testimony of
Dr. McVoy, who testified that he considered the wetlands of the Bird Drive Basin as the water management system that recharges the regional wellfield.
Respondent introduced the testimony of Wilbur Mayorga, chief of the County’s environmental monitoring and restoration division, who is responsible for the wellfield protection areas and the boundaries thereof, and who was admitted as an expert in wellfield protection and contamination. Mr. Mayorga gave a broader, more general definition, which is ultimately not in conflict with Dr. McVoy’s definition.
The Bird Drive Basin is one part of the larger system managing and conveying freshwater from Lake Okeechobee through various natural and man-made components that store, treat, and deliver water to the urban and agricultural uses, as well as the Everglades. Respondent’s hydrogeology expert, Dr. Virginia Walsh, confirmed that the Bird Drive Basin wetlands
serve to recharge the County’s production wells.
Dr. McVoy’s opinion was hedging—“I find it hard to see how [the system] would be enhanced and I find it hard to see how [the system] would be protected … I can’t see any way that I, as a scientist, can say that by
putting a roadway on [the system] it is going to increase protection ….”
Mr. Mayorga was asked directly, “In your professional opinion, would the plan amendment pose any threat to these water management systems?” Mr. Mayorga answered, “That I’m not familiar with.” His answer was puzzling and unhelpful.
Significantly, both Dr. McVoy and Mr. Mayorga preferred to answer the question based on the degree of risk created. Dr. McVoy testified that building the tollway certainly increases risk of contamination to the system. Mr. Mayorga opined that removing all uses within the wellfield is the only way to achieve zero risk. He further opined that any roadway carries an inherent risk of contamination, which can be attenuated by the location of
uses at the higher contour lines. As Mr. Mayorga explained, “The closer you are to the production wells, the [fewer] alternatives you have in how you manage stormwater.”
In an effort to demonstrate compliance with the requirement to “protect the water management systems that recharge” the regional wellfield, Respondent points to new policy LU-1W, which requires that alignment of the new corridor remain “outside and to the east of the boundary of the 10- day travel time contour” of the West Wellfield area.
In the end, Respondent’s expert witness confirmed that building the new corridor will neither protect nor enhance the water management systems that recharge the West Wellfield.
Petitioners did not prove the Plan Amendment is contrary to Objective CON-3 or Policy CON-3A. However, they did prove the Plan Amendment is inconsistent with Policy CON-3B. 7
Policy CON-3F requires the County to implement cut and fill criteria for land in the North Trail and Bird Drive basins, among others. The County has already implemented those criteria and the Plan Amendment does not implicate that policy in any way.
The remainder of Petitioners “wellfield” allegations overlap with alleged wetland impacts and are addressed in the following section.
Wetlands
Petitioners next contend the Plan Amendment is inconsistent with the following objectives and policies related to wetlands and wetland functions: CON-4 and 4A, and CON-7, 7A, and 7J, which read, in pertinent part, as follows:
Objective CON-4. The aquifer recharge and water storage capacity of the presently undeveloped areas in the western and southern Miami-Dade County shall be maintained or increased.
7 In addition, to the extent Petitioners challenged the Plan Amendment as inconsistent with the interpretive text in the Land Use Element relating to Open Land Subarea 3 (North Trail and Bird Drive Basins), which reads, “Uses that could compromise groundwater quality shall not occur in this area,” that allegation was proven as well. Mr. Mayorga’s testimony that “any roadway carries an inherent risk of contamination” conceded the point that the Plan Amendment creates a risk of contamination to the wellfields.
Policy CON-4A. The aquifer-recharge values of undeveloped land and the water storage values of wetland areas shall be maintained and, where feasible, enhanced or restored.
Objective CON-7. [The County] shall protect and preserve the biological and hydrological functions of Future Wetlands identified in the Land Use Element. Future impacts to the biological functions of publicly and privately owned wetlands shall be mitigated.… Publicly acquired wetlands shall be restored and managed for their natural resource, habitat, and hydrologic values.
Policy CON-7A. The degradation or destruction of wetlands shall be limited to activities that 1) are necessary to prevent or eliminate a threat to public health, safety or welfare; 2) are water dependent, clearly in the public interest and no other reasonable alternative exists; 3) are carried out in accordance with a basin management plan; or 4) are in areas that have been highly disturbed or degraded and where restoration of a wetland with an equal or greater value in accordance with federal, State, and local regulations if feasible. Habitats critical to endangered or threatened species shall not be degraded or destroyed.
CON-7J. In evaluating applications that will result in alterations or adverse impacts to wetlands, [the County] shall consider the application’s consistency with [CERP] objectives.
Wetlands play an important part in recharging the Biscayne Aquifer.
They filter stormwater to remove pollutants and nutrients prior to the
water’s eventual entry into the aquifer. As discussed above, wetlands can also perform the important function of storing stormwater to prevent flooding of adjacent properties, and for use in dryer seasons, if they have a confining clay (or other soil) layer above the aquifer.
The new corridor is expected to destroy over 300 acres of wetlands in the Bird Drive and North Trail basins, although the exact number is
unknown. Petitioners contend that violates Policy CON-7A because the project does not meet any of the four criteria.
The County introduced evidence that the wetland impacts will be carried out in accordance with Bird Drive Basin management plan, thus meeting criteria three of Policy CON-7A.
The final sentence of Policy CON-7A prohibits destruction of wetlands in habitats critical to threatened or endangered species. The Pennsuco wetlands are designated critical habitat to several endangered species, but the Plan Amendment implicates wetland impacts in that area.
The County maintains that it has addressed this issue through an interlocal agreement with MDX, which requires that the entire span of the new corridor traversing the Pennsuco wetlands be elevated. However, the interlocal agreement is not incorporated into or adopted by reference in the Plan Amendment; thus, is not enforceable through the Plan. To the contrary, the interlocal agreement may be modified or amended upon mutual agreement of the parties.8
Petitioners proved the Plan Amendment is inconsistent with Policy CON-7. Because the new corridor will traverse the Pennsuco wetlands, an area designated as critical habitat for threatened and endangered species, the Plan Amendment violates this policy.
Petitioners did not prove the Plan Amendment is inconsistent with this part of CON-7J. As discussed in the Findings of Fact 104 and 107, the County did consider the impact of the new corridor on CERP.
Petitioners’ allegations of inconsistency with Objective CON-4, Policy CON-4A, and Objective CON-7, all relate to the impact of the new corridor on aquifer recharge and storage capacity of wetlands in the path of the new corridor.
8 Even if the interlocal agreement were incorporated into the Plan Amendment, this inconsistency would not be completely resolved because the interlocal agreement allows pilings or other support structures for the elevated section to be located in the Pennsuco wetlands.
Dr. McVoy opined that the aquifer recharge capacities of the Bird Drive Basin, the West Wellfield, and the Pennsuco Wetlands will not be increased as a result of the Plan Amendment, but he did not testify that the Plan Amendment would inherently decrease those capacities, nor did he testify that the Plan Amendment would prevent those capacities from being maintained.
Again, County staff recognized the inherent conflict between wetland functions and development of the roadway corridor, and recommended the Plan Amendment include the following new policies, which read, in pertinent part, as follows:
LU-1W. [P]rior to the construction of the roadway, or any phase thereof, MDX shall prepare a surface water sheet flow analysis to demonstrate that the wetlands hydrology in this area shall be adequately retained.
LU-3T. The [new corridor] is planned to traverse and impact wetlands within the Bird Drive Basins and elsewhere along its alignment and will require environmental approval and wetland mitigation. To the maximum extent feasible, mitigation for the [new corridor] shall be accomplished through acquisition, preservation, and restoration of wetlands within the Bird Drive and North Trail Basins outside the [UDB]. At a minimum, preservation of wetlands within the Bird Drive Basin shall be included as a component of the wetlands mitigation for this project. The mitigation shall also include a plan to preserve the hydrological connection and surface water flow of the wetlands remaining in these basins through the use of culverts or bridges. (emphasis added).
Petitioners have two objections to this language.
First, Petitioners argue the only way to preserve the hydrologic connection of the wetlands severed by construction is by bridging, rather than use of culverts. Dr. McVoy expressed the opinion that, if a wetland has water
storage capacity, the roadway will need to be elevated to prevent flooding of the roadway. If the County only uses culverts, the road will still be subject to flooding in the areas where it is not culverted. Moreover, the hydrologic function of the wetlands will not be maintained because the wetlands will be disconnected in those areas.
The County’s wetland expert explained that while some wetland vegetation is removed for a culverting project, the culvert allows wetland hydrology to be maintained. He gave examples of other roadways, notably Krome Avenue, where culverts have been used to maintain the hydrologic connection of wetlands severed by the roadway.
Both Dr. McVoy and Mr. Spinelli have expertise in wetlands and
wetland hydrology and hold different opinions on the issue. Neither witness’s testimony was more compelling than the other.
Second, Petitioners attack the use of the phrase, “to the maximum extent feasible” to modify the requirement that mitigation of wetland impacts be accomplished within the Bird Drive and North Trail basins. Petitioners contend that this phrase does not provide a meaningful and predictable standard. But this is a common phrase that has been used throughout comprehensive plans that have been found in compliance, including ones prepared by Petitioners’ planning expert, Mr. Iler, and as acknowledged by Mr. Hawkins. Moreover, Mr. Woerner noted that at least three other policies in the Plan use the phrase “to the maximum extent feasible,” and he emphasized that this language provides some flexibility as to how an otherwise mandatory directive can be accomplished. As Mr. Spinelli and
Mr. Woerner explained, the phrase “to the maximum extent feasible” in new Policy LU-3T is appropriate because it provides some flexibility as to the location of wetland mitigation, because, as the County’s wetland mitigation estimates showed, there were limits on the amount of available land within the Bird Drive and North Trail Basins to address the entire amount of mitigation that would likely be required.
Mr. Hawkins further opined that the standard “is so deferential to the opinions stated by whoever the applicant or the developer might be in the future as to not provide a real standard that we can use today to anticipate whether we can measure compliance of this policy in the future.” However,
nothing in Policy LU-3T vests discretion in, or suggests deference to, a permit applicant with respect to the issue of feasibility. It is plain that, as with other policies in the CDMP, the County would ultimately determine feasibility.
In summary, the Plan does not prohibit destruction of all wetlands in environmentally-sensitive areas. Rather, it limits damage to projects meeting certain criteria, at least one of which is met by this project. The Plan anticipates mitigation of wetland acreages lost due to development, and requires the water storage, recharge capacity, and hydrology of wetlands be maintained or increased. Finally, the Plan requires restoration of publicly- acquired wetlands “managed for their natural resource, habitat, and
hydrologic values.”
The Plan Amendment will disturb and destroy wetlands, which will be undertaken in accordance with the basin management plans for the Bird Drive and North Trail basins. The Plan Amendment requires MDX to demonstrate that the wetland hydrology can be maintained by submitting sheet flow analysis prior to construction. Mitigation of wetlands acquired can increase storage capacity by removal of melaleuca and restoration of the confining layer.
Petitioners did not prove that the Plan Amendment violates any of the cited Conservation Element policies, with the exception of CON-7A, because it allows destruction of portions of the Pennsuco wetlands.
CERP
Protection of the Everglades is one of the highest priorities of the Plan. The Land Use Element provides that the County’s “growth policy includes … that the intensification of physical development and expansion of the urban area should be managed … in recognition of the County’s physical limitations
to horizontal expansion due to the location of the Everglades National Parks[.]” Land Use Policy LU-3S states that “[The County] continues to support the [CERP] and related regional and local habitat restoration and preservation initiatives through its … long-range land planning initiatives.”
Future Land Use Element Figure 14 clearly depicts the Bird Drive Basin as “Future Wetlands and CERP Water Management Areas.” The Conservation Element “builds upon past and present initiatives such as … planning for the Bird Drive-Everglades [and other] basins.”
Petitioners contend the Plan Amendment is contrary to Policy CON-7J, which provides, as follows:
In evaluating applications that will result in alterations or adverse impacts to wetlands[,] [the County] shall consider the applications’ [sic] consistency with [CERP] objectives. Applications that are found to be inconsistent with CERP objectives, projects or features shall be denied. (emphasis added).
Petitioners maintain the Plan Amendment will adversely impact wetlands in the Bird Drive Basin, which is designated as CERP
Component U, and should be denied as inconsistent with that CERP project and its related objectives. 9
All parties agreed that only the District has authority to determine whether the Plan Amendment is consistent with CERP.
As part of the required review of the Plan Amendment, the District commented on the proposed Plan Amendment. In its comment letter, the
District noted that “[a] portion of the lands within the proposed study area for the expressway extension have been identified as having potential use with regard to Everglades restoration projects.” The District advised that the
9 The County introduced evidence, all of which constituted hearsay, to prove that the District has determined Component U to be infeasible and has instead moved toward a conveyance concept for the Bird Drive Basin, which, ostensibly requires less property. The issue is a red herring. No matter the size or scale of the CERP project, the District remains the agency with authority to determine whether the Plan Amendment interferes with the project.
County had not supplied enough information “that would help the District evaluate the proposed project’s compatibility with the CERP [project],” and directed that County staff “coordinate with appropriate District staff to provide sufficient information.”10
The County did not provide additional information to the District and did not receive any determination from the District regarding the Plan Amendment’s consistency with CERP.
Petitioners did not prove that the Plan Amendment is inconsistent with CERP, or that the County failed to consider consistency with CERP, thus, they did not prove the Plan Amendment is internally inconsistent with Policy CON-7J.
However, Petitioners did prove the Plan Amendment is not supported by data and analysis on this point. Rather than providing the District with the additional information it requested to determine consistency with CERP, the County replied that it would continue to work with the District during the permitting process and “may be able to include features … that provide benefits that are both compatible and consistent with the intent of the CERP.”
While only the District has the authority to determine consistency of the Plan Amendment with CERP, the County, not the District, has the duty and authority to determine consistency with its own Plan, including Policy CON-7J.
10 The District’s letter constitutes hearsay evidence for which there is no applicable exception in section 90.803, Florida Statutes. See Ehrhardt’s Florida Evidence § 803.8 (“A third kind of public record is admissible under [the Federal Evidence Code], but was intentionally omitted from section 90.803(8)”—“records and reports by a public official when the official is required to interpret and evaluate facts and information supplied by persons outside the agency.”). If the letter addressed the material disputed fact of whether the Plan Amendment was inconsistent with CERP, those statements would be inadmissible. However, the undersigned determined that statements regarding the need for more information on the issue are admissible, because they do not go to a material disputed fact.
The County introduced the testimony of expert planning witness, Mark Woerner, in an attempt to prove that the County need not have a final determination of consistency with CERP prior to adopting a plan amendment. Mr. Woerner testified that the Plan merely requires the County to be aware of particular CERP projects when staff reviews plan amendments.11
Mr. Woerner’s testimony is contrary to the plain language of the policy, which requires the denial of a plan amendment that is found to be inconsistent with a CERP project or objective.
Notwithstanding the previous finding that Petitioners did not prove that the Plan Amendment was inconsistent with CERP, because the Plan Amendment was adopted absent a determination of consistency with CERP, the Plan Amendment is not based upon adequate data or analysis. To be “based upon data” means “to react to it in an appropriate way and to the extent necessary[.]” § 163.3177(f), Fla. Stat. The County did not react appropriately to the data and analysis available—that the District needed more information in order to determine consistency—by adopting the Plan Amendment without such needed information.
Agriculture
Next, Petitioners contend that the Plan Amendment is inconsistent with policies specifically addressing the preservation of agriculture.
The Plan provides the following with respect to lands in the Agriculture category:
The area designated as “Agriculture” contains the best agriculture land remaining in [the County]. As
11 Mr. Woerner’s testimony was hedging, at best: “I believe that you can still provide an analysis and address the issues that may be surrounding a particular CERP project or a CERP issue. But I don’t think you need to have to finally finalize that. You have to—the comp plan—the policies that we put in the comp plan regarding CERP were to ensure that in the planning process, the County’s aware of the importance of CERP in its projects and that we have to be aware of that as we review different plan amendments or other permitting
issues that might arise for the County.”
stated in the [County’s] strategic plan, approved by the Board of County Commissioners, protection of viable agriculture is a priority. The principle uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture and farm residences.[12]
The Plan continues, “In order to protect the agricultural industry, uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed within [the Agriculture land use category].”
The mandate to protect agriculture is reiterated in the section on Concepts and Limitations of the Land Use Plan Map, which provides, “Among the long-standing concepts embodied in the [County’s Plan] are … encourage agriculture as a viable economic use of suitable lands.”
In addition to the foregoing Plan provisions, Petitioners cite the following goals, objectives, and policies with which the Plan Amendment conflicts: the Land Use Goal, which calls for “preserv[ing] Miami-Dade County’s unique agricultural lands” and Land Use Policies LU-1R, LU-1S, LU-8C, and LU-8E.
Policy LU-8C requires the County to “continue to protect and promote agriculture as a viable economic use of land[.]”
The Plan Amendment will displace approximately 300 acres of Agriculturally-designated land which is in active agricultural use.
The amount of land that is needed to maintain a viable agricultural industry is approximately 50,000 acres. According to the Environmental Protection Agency’s December 2012 report titled “Growing for a Sustainable Future: Miami-Dade County Urban Development Boundary Assessment,” approximately 67,000 acres outside the UDB are in active agricultural use.
12 Uses ancillary to agriculture are those related to preserving, processing packaging, or selling agricultural products; farm supplies; and sale and service of farm machinery and implements.
The Plan Amendment will not reduce the amount of agriculture land to below the threshold required for a viable agriculture industry. Therefore, Petitioners did not prove the Plan Amendment is inconsistent with either the Concepts and Limitations interpretive text or LU-8C.
Policy LU-8E provides, in pertinent part, as follows:
Applications requesting amendments to [the Plan] Land Use map shall be evaluated for consistency with the Goals, Objectives, and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would:
Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County;
Enhance or impeded provision of services at or above adopted LOS standards;
Be compatible with abutting and nearby land uses and protect the character of established neighborhoods, and;
Enhance of degrade environmental or historical resources, feature, or systems of County significance[.]
There is ample evidence that the Plan Amendment was evaluated for consistency with every aspect of the Plan. As it pertains to Agriculture, County staff specifically recognized potential conflict with the Plan’s directives to protect agricultural land.
To address that concern, staff recommended that “MDX be required to preserve agricultural lands that are currently being used for agricultural production, commensurate with the amount of such lands that would be impacted by the roadway extension.”
Staff recommended addition of, and the Plan Amendment was adopted with, the following new future land use policies:
Policy LU-1U. Notwithstanding the designation of the [new corridor] as an Expressway on the [Plan] Land Use Plan map … no construction associated with the [new corridor] shall occur that would restrict farm vehicle and equipment access to agricultural properties adjacent to the [new corridor]. Moreover, to minimize the impacts of the [new corridor], the design and construction shall be conducted in a manner that does not cause drainage or the spillage of lighting from the [new corridor] onto adjacent agricultural lands.
Policy LU-1V. To mitigate the impacts of the [new corridor] on the agricultural area, [MDX] shall preserve agricultural lands outside the UDB commensurate to impacts to agricultural lands that would be taken out of production by the project. Said preservation may be through participation in the County’s Purchase Development Rights program or other mechanism acceptable to the [County] Department of Regulatory and Economic Resources (or successor Department).
The Plan Amendment addresses both the direct and indirect impacts the new corridor may have on agriculture.
Policy LU-1V mitigates the loss of directly impacted acreage by requiring preservation of land for agricultural land outside the UDB through a purchase of development rights program on an acre-for-acre basis. Under the Plan Amendment, all direct impacts to agricultural lands will require preservation of a commensurate amount of agricultural land outside the UDB. Approximately 188 acres of the impacted agricultural acres are located within the UEA, which are already projected to be removed from agricultural production in the future. Policy LU-1V will, arguably, increase the amount of land available for agriculture following the eventual development of the UEA for urban development.
Policy LU-1U addresses the indirect impacts to agriculture, by requiring the expressway to be designed in a manner that protects farm
vehicle and equipment access and that does not cause drainage or lighting spillage onto agricultural lands.
With the addition of the cited policies, it is at least arguable that the Plan Amendment is not inconsistent with Plan directives to protect agricultural lands or Policy LU-8E.
At first blush, Policy LU-1R appears to be relevant because it begins by mandating the County to “reserve the amount of land necessary to
maintain an economically viable agricultural industry.” However, the remainder of the policy mandates the County to adopt a transfer of development rights (“TDR”) program and provides more detail on how TDR will be implemented. The policy must be construed as a whole. The Plan Amendment included no provisions regarding the development, adoption, or implementation of the TDR program. Thus, the Plan Amendment is inconsistent with this policy.
LU-1S is inapplicable, again, because it addresses the consistency of the County’s Strategic Plan, rather than plan amendments, with the Plan.
The Plan Amendment is not inconsistent with the interpretive text describing the Agriculture land use category because, as detailed in Findings of Fact 59 through 62, the Plan Amendment does not support or encourage urban development in the Agriculture land use category.
Finally, Petitioners argue that the Plan Amendment is not supported by data and analysis, specifically regarding the amount of agricultural land impacted by the new corridor and the amount of land needed to maintain a viable agriculture industry. Mr. Hawkins opined that the County did not identify the impacts, which is not a professionally acceptable planning practice. However, the evidence adduced at the final hearing revealed that data was available to, and was considered by, the County, and which supports the Plan Amendment.
Petitioners did not prove this aspect of the Plan Amendment was not supported by appropriate data and analysis.
Transportation The PD&E Study
In 2013, following TPO approval, MDX commenced the PD&E process for the new corridor. MDX engaged consultants, overseen by the project manager, Albert Sosa, on behalf of general engineering consulting firm HNTB, to undertake the PD&E process for what was referred to as “MDX Project 836-18.”
The PD&E process is the State of Florida’s process by which infrastructure projects demonstrate compliance with federal and state environmental and other regulatory standards. A PD&E study involves roadway engineering, structural work, stormwater drainage work, traffic engineering, transportation engineering, and analysis of the project’s impacts on both the natural and the built environment and on the people in the affected community.
Mr. Sosa personally supervised the development of, and reviewed and approved, all methodologies for collection and analysis of data, reviewed the results of the collection and analysis for conformance with the approved methodologies, and reviewed and approved all reports produced as part of the overall PD&E Study for MDX Project 836-18.
The first step in the PD&E Study was to develop an evaluation methodology, which, in this case, was the Alternative Corridor Evaluation (“ACE”), whereby several alternative corridors were analyzed and compared based on their relative impacts and benefits to the natural and built environment and to the transportation needs of the affected community, among other criteria. The ACE for MDX Project 836-18 ultimately considered 10 corridor alignments.
The analysis began by measuring existing traffic conditions in 2014 to identify existing operational deficiencies along critical roadway facilities. From there, the analysis projected traffic impacts out to the year 2050. The 2050 projections used as a baseline a “no-build” model that incorporated
highway, transit, roadway, and other transportation improvements programmed in the LRTP “Cost Feasible Plan” to be constructed by 2050, as well as updated population and other socio-economic projections. The alternative corridor alignments for the proposed expressway were compared against the “no-build” model in the year 2050, to determine whether the existing traffic conditions observed in 2014 remained or worsened even after accounting for future planned transportation improvements; and if so, whether the proposed expressway improved the projected conditions.
The ACE analyzed traffic impacts over a broader study area than it used for impacts to the natural and built environment. The traffic study area is based on a model that incorporates the different corridors, and turns those corridors on and off to see where significant impacts to traffic stop appearing. That model is known as the Southeast Regional Planning Model (“SERPM”), which is owned by the TPO and includes: planned transportation projects, existing and future land use designations, existing and future population projections, and existing and future employment projections for different areas of the County. It is, therefore, used to analyze every transportation project in the County for impacts to both the existing and future planned environment.
The traffic study area for the SR-836 southwest extension project was established as a 75-square-mile area bounded on the north by NW 12th Street, on the east by SW 97th Avenue, on the south by SW 152 Street/Coral Reef Drive, and on the west by SW 177 Avenue/Krome Avenue (see Figure 2).
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Of the original 10 ACE corridors, the closest to the final adopted alignment was Corridor 6. Between NW 12th Street and SW 88th Street, Corridor 6 matches the alignment presented in the Plan Amendment. The main difference is that the southern portion of ACE Corridor 6 lies further west of the UDB and further away from the residential development in West Kendall south of SW 104th Street than the Application alignment did.
Petitioners challenged the PD&E study, and the ACE Report specifically, as insufficient data to support the Plan Amendment because the final adopted alignment of the new corridor differed from any of the 10 the alignments studied. The undersigned finds the PD&E study, including the ACE Report, provides significant data compiled by a professionally-accepted methodology and taken from professionally accepted sources.13 Thus, while none of the 10 ACE corridors exactly matched the final adopted alignment, the PD&E Study ultimately analyzed all of the variations that the County considered, and as of the Plan Amendment’s adoption, the PD&E Study had obtained data for the final adopted alignment.
Mobility
Approximately 600,000 people live in the West Kendall area (including areas between the UDB and SW 177th Avenue/Krome Avenue), and each weekday, 150,000 of those people commute to work in other areas of the County.
The need for increased mobility in West Kendall is well documented by the PD&E Study.
In general, the peak travel direction through the study area is eastbound/northbound in the morning peak period, or rush hour (6:00 am to 9:00 am), and southbound/westbound during the evening rush hour (4:00 pm to 7:00 pm).
Travel speeds within the study area were found to be lower in the morning rush hour compared to the evening rush hour. Travel speeds lower than 18 mile per hour (“mph”) were documented on Bird Road, Kendall Drive, Coral Reef Drive, SW 137th Avenue, and SW 107th Avenue, during the evening rush hour.
The capacity of a roadway is identified by the level of service (“LOS”) standards. The County has adopted LOS D for roadways within the UDB,
13 The ACE Report was originally published in February 2017, but the data and analysis was updated beginning in the summer of 2017 and throughout the Plan Amendment process.
and LOS C for roadways outside of the UDB. The roadways listed above are operating at LOS E and F, indicating the level of congestion in the area.
In addition to measuring average travel speeds, which incorporate delays at intersections, another planning-level measurement of surface streets is their volume over capacity (V/C) ratio, where volume (V) is the number of vehicles and capacity (C) is the maximum number of vehicles that can pass a point on a roadway in a given amount of time under normal conditions. A roadway is considered to be failing if it has a V/C ratio of 1.0 or more, and it is near failure if it has a V/C ratio between 0.9 and 1.0.
During the morning rush hour, 20 roadway segments within the study area had V/C ratios over 1.0, and 15 segments were approaching failure. During the afternoon rush hour, 13 segments had a V/C ratio greater than 1.0, and another 16 were approaching failure.
In sum, during the morning rush hour today, roughly 50 percent of the roadway segments operate at substandard speeds, and 33 percent are either already over capacity or near capacity.
Additional transportation capacity is needed to accommodate the current residential development in West Kendall, as the existing roadway
network cannot effectively serve the area’s current transportation demands, and that population is only expected to increase based on current land use and zoning designations.
Petitioners’ overarching challenge relating to transportation is that the Plan Amendment is not supported by the data and analysis from the PD&E study, which demonstrates construction of the new corridor will result in minimal mobility increases in the study area and actually reduce the LOS on some roadway segments.
The purpose of the Plan Amendment is two-fold: to improve mobility in West Kendall; and to decrease the commute times to downtown and other employment centers. 14
While the study does reveal significant reduced congestion on certain roadway segments in the West Kendall area during morning and evening rush hours, overall the study supports a finding of minimally increased mobility in the study area. For example, analysis of the alignment most closely approximating the new corridor, scenario 2.1D, results in a reduction of 6,988 vehicles on SW 8th Street, and reduction of 6,264 vehicles on
SW 88th Street. But, the impact on daily traffic volumes is minor. The total reduction in vehicle hours traveled (“VHT”) for morning rush hour is four percent, and for evening rush hour is five percent. The average annual daily reduction in VHT is just over three percent (a reduction from 226,033 to 218,803), and an average daily increase in travel speed from 27.72 mph to
29.34 mph.
The data also shows the greatest reduction in vehicle miles travelled (“VMT”) is six percent.
Notably, the new corridor would result in an improvement of the LOS for less than half of the roadways within the study area. 8th Street, east of 157th Avenue, would improve from LOS D to C; Bird Road would improve from LOS E to D; 120th Street would improve from LOS D to C; and
157th Avenue, north of 136th Street, would improve from LOS F to C. The remaining seven segments studied would remain at their existing LOS,
14 The LRTP identifies “[i]mprove[ment] [of] access to and from the area to major employment centers such as the MIA, the MIC, the Port of Miami, Downtown Miami, Doral, as well as educational and commercial centers within the study area,” as one of the primary purposes of the project, in addition to improving mobility in the Kendall area. The Plan Amendment includes new Policy TC-1M, which provides that the County approves the new corridor “only to the extent necessary to relieve existing traffic congestion in the [West Kendall] area of the County and to provide a reliable, robust, and faster connection to Downtown Miami and other major trip attractors across the County.”
including 137th Avenue, south of the new corridor, which would continue to operate at LOS F.
Not only does the data reveal that the improvements in West Kendall congestion would be, as Petitioner’s expert described, “meager,” but also they provide no support for a finding that the Plan Amendment will accomplish its second objective—improving the commute time to downtown and other employment centers.
The County relies upon the PD&E study, the goal of which is to identify an appropriate corridor for the southwest extension of the Dolphin Expressway, which does not include downtown, the airport, or other employment centers, within either the study area or the impact area.
Mr. Mullerat, Petitioner’s expert transportation planner, described the problem as follows:
[I]f the intent of this project is to solve in part the commuter issues for commuters, the whole path of the commuter should have been looked at … [the study] doesn’t look at some of the destinations—not just downtown and to the east, but also to the north. … And both origin and destination should have been looked at.
Mr. Mullerat testified, credibly, that it was not an acceptable planning practice to have ignored origin and destination trips.
The majority of the commuters who utilize the new corridor will be traveling beyond this three-mile stretch on to downtown, the hospitals, the airport, and other major trip attractors, yet the study contains no information about impact on commute times to those destinations. The data is silent on whether the time to those destinations will increase, decrease, or stay the same.
Furthermore, the existing segment of the Dolphin Expressway operates at a LOS C, at least for the first three miles traveling east from its current termination point. The data shows that, after the new corridor is
built, the LOS drops to D in that three-mile stretch. So, commuters will drive 13 miles, outside of the UDB, through active agricultural lands, through environmentally-sensitive lands, and through the West Wellfield, only to connect with the existing expressway operating at an LOS lower than it operates at today.15
Relating to transportation issues, Petitioners allege the Plan Amendment is inconsistent with the following goals, objectives, and policies in the Plan: TC-1A; TC-4A and F; and TC-6 and 6B.
TC-1A requires the County to update and readopt the LRTP to achieve the objective of TC-1, which requires the County to operate its roadways at the adopted LOS, and strive to achieve a better LOS, in a manner consistent with the other objectives of the Plan. It requires the County to prepare proposals to enhance the Traffic Circulation and Mass Transit subelements following each LRTP update.
The Plan Amendment is not inconsistent with this policy. The Plan Amendment will assist in achievement of the adopted LOS D on at least some roadway segments within the study area, and achieve a better LOS on others. While it will not improve the LOS on all segments, including at least one that is operating at LOS F, it is at least fairly debatable that the Plan Amendment is consistent with this policy.
Policy TC-6A requires the County to “avoid transportation improvements which encourage or subsidize increased development in … environmentally sensitive areas[.]” For the reasons discussed in Findings of Fact 59 through 62, the Plan Amendment does not “encourage increased development” and is not inconsistent with this policy.
TC-6B requires that land access interchanges “shall not be placed or constructed in a manner that would provide access to environmental
15 A project to widen the existing segment of the Dolphin Espressway from four to six lanes is expected to re-establish the higher functioning LOS C. However, no evidence was introduced at final hearing to establish the timeframe for that project.
protection areas or other areas to be conserved” in order to prevent undue pressure for development in those areas. There is no evidence that the interchanges proposed for the new corridor to connect with existing roads in West Kendall would provide “land access.” Further, the Plan Amendment is not inconsistent with the policy for the same reasons it is not inconsistent with TC-6A.
TC-4C provides, “Areas designated Environmental Protection shall be particularly avoided” when the County prioritizes construction of roadways, and allocation of financial resources for said construction.16 At first, it appears the Plan Amendment may be inconsistent with this policy because it allows construction of the new corridor in the Pennsuco wetlands. However, the Plan must be construed as a whole. This policy must be read in conjunction with Policy TC-6C, which provides that “[i]f no feasible alternative exists,” roadways may traverse environmental protection or conservation areas, “however such access should be limited and design techniques should be used to minimize the negative impact upon the natural systems.”
Petitioners argue that alternatives to the new corridor exist which would accomplish the objective of relieving congestion in West Kendall. Mr. Kulash opined that congestion could be relieved by lane widening, extending turn lanes, and other roadway improvements; alternately, he expressed an opinion that congestion could be relieved by mass transit improvements.
The County experts demonstrated that the alternatives proposed by Petitioners were not feasible, due to costs of land acquisition in the urban area, and the limitations of transit service.
16 The same language is expressed in CIE-6A. For the reasons stated herein, the Plan Amendment is not inconsistent with that policy.
Petitioners did not carry their burden of proof with regard to Policy TC-4C. Petitioners must have done more than suggest alternatives exist, they must have proven the feasibility of those alternatives.
Petitioners also raised concerns with the energy inefficiency of a new expressway and increased emissions and greenhouse gases. They identified Intergovernmental Coordination Element (”ICE”) policies ICE-5F and 5G as policies with which the Plan Amendment conflicts.
ICE-5F requires the County to participate in the Southeast Florida Regional Climate Change Compact and to coordinate with other agencies in developing initiatives to address climate change mitigation and adaption. Policy ICE-5G requires County departmental master plans to “include and prioritize climate change mitigation and adaptation strategies.”
The Plan Amendment has no impact on the County’s ability to implement either of those policies.
Mass Transit
The County has adopted the Strategic Miami Area Rapid Transit (SMART) Plan (see Figure 3).
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The SMART plan includes two east/west corridors, including the Kendall Corridor, which will connect residents in West Kendall from 167th Avenue east to existing lines serving downtown, and two planned north and northeast corridors.
Transportation Element Policy TE-3C states, “It is the policy of [the County] to develop all the transportation facilities identified in the MPO’s [LRTP] … as soon as feasible, in accordance with the LRTP phasing
program.” The Goal of the Mass Transit Subelement is to “[m]aintain, operate, and develop a mass transit system in [the County] that provides efficient, convenient, accessible, and affordable service to all residents and visitors,” and it adopts the corridors identified by the SMART plan as
Figure 2 in the element’s map series. Policy TE-1A provides that “the County shall promote mass transit alternatives to personal automobile.” The overarching Goal of the Traffic Circulation Element includes developing and operating a traffic circulation that “supports the usage of transit,” among other broad goals.
Petitioners challenge the Plan Amendment as inconsistent with several existing Plan provisions regarding mass transit service and prioritizing alternatives to private vehicle travel. Primary among them are Transportation Element TC-1A and Traffic Circulation Subelement TC-4F. Based on the same arguments, Petitioners also contend that the Plan Amendment is inconsistent with section 163.3177(6)(b), which requires a transportation element “to plan for a multimodal transportation system that places emphasis on public transportation systems, where feasible” and to “provide for a safe, convenient multimodal transportation system, coordinated with the future land use map . . . and designed to support all elements of the comprehensive plan,” as well as section 163.3177(6)(b)2.a, which requires that a transportation element address “[a]ll alternative modes of travel, such as public transportation, pedestrian, and bicycle travel.”
Policy TC-4F provides, as follows:
The County shall consistently improve strategies to facilitate a Countywide shift in travel modes from personal automobile use to pedestrian, bicycle and transit modes. The priority for transportation infrastructure expenditures shall be to insure that pedestrian, bicycle, and transit features are incorporated into roadway design. (emphasis added).
Policy TE-1A provides, as follows:
As provided in this section and the Mass Transit Subelement, the County shall promote mass transit alternatives to the personal automobile, such as rapid transit, (i.e. heavy rail, light rail, and bus rapid transit, premium transit (enhanced and/or express bus)), local route bus and paratransit services. (emphasis added).
Petitioners’ experts testified that the new corridor will accomplish the opposite of what is required by the Plan—it will incentivize the use of personal vehicles by residents of West Kendall, who will take the expressway to escape the congestion of the roadways within the UDB.
Respondent countered that the Plan Amendment is consistent with the Plan’s emphasis on alternative mass transit because it requires the new corridor to be built as a multi-modal facility, and will provide connections between the planned new east/west corridors.
The Plan Amendment includes the following new policies in the Mass Transit Subelement of the Transportation Element:
Mass Transit Subelement Policy MT-4D. Pursuant to Traffic Circulation Subelement Policy TC-4F, [MDX] (or successor agency) shall provide for mass transit service in the [new corridor], to be funded by MDX. The mass transit service shall incorporate lanes having technologies that facilitate the safe travel of automated vehicles, including mass transit vehicles, at high rates of speed for a connection with the transit service being implemented as part of the current SR 836 reconstruction generally east of the Turnpike. MDX shall coordinate the mass transit service with [the County] through the Department of Transportation and Public Works (or successor department). Said coordination shall occur prior to the earlier of the issuance of the first permit for construction of the expressway extension or prior to the commencement of any construction of the expressway extension.
Mass Transit Subelement Policy MT-4E. In coordination with [the County] Parks, Recreation and Open Space Department and [the County TPO], [MDX] shall design a multi-use recreational trail within the corridor of the [new corridor]. Additionally, to the maximum extent feasible, the multi-use recreational trail shall be designed to provide for seamless connections to the County’s existing and planned trails and greenways network proximate to the corridor. Said coordination shall occur prior to the earlier of the issuance of the first permit for construction of the expressway extension or prior to the commencement of any construction of the expressway extension.
These policies satisfy the requirements in Policies TC-3D to “design new roadways in a way that … incorporates planned rapid transit corridors,” and TC-4F to “insure that … transit features are incorporated into roadway design.”
The question is whether the Plan Amendment satisfies the Plan requirement to “promote mass transit use.” Petitioner’s expert planners maintained it will not. Mr. Hawkins explained:
The expressway is located outside of the Urban Development Boundary to the west of the urbanized area.
For folks to use a transit corridor or a transit route that runs along the expressway corridor, they would have to travel by automobile outside the UDB to the west, to access a park-and-ride facility, and then get on a transit facility—a transit vehicle that operates in that corridor. It would not be back in an urbanized area until it is in the area of Northwest 12th Street and back in the UDB.
If you were going to plan a corridor for a transit facility, you would have a much more direct line. You would run a transit facility through the developed area. Why? One is so that people can get to it more quickly. And two, so that all of the stops along its way are functional. When you are running
through an agricultural area, you can't have any functional stops until you are all the way back in the UDB. It is just—the suggestion that this is a functional transit corridor or that this was designed with transit in mind is—I will use the word farcical.
Respondent’s own planning expert, Mr. Woerner, agreed that the Plan Amendment “does not shift the travel mode from single occupancy vehicle to mass transit,” and “does not reduce dependence on the use of personal vehicles.”
The County introduced no data on ridership for the transit lanes or other data to support that the mass transit option incorporated in the Plan Amendment would actually promote use of that option. Mr. Woerner seemed to recall some figures on ridership from the PD&E study, which evaluated a mass transit alternative to the new corridor.
The figure Mr. Woerner referenced was an estimated 2,772 transit boardings from the alternative corridor analysis conducted during the PD&E study. However, that study was a mass-transit-only alternative to the new corridor. That ridership number is an estimate of the number of West Kendall residents who would choose to take mass transit if that were the only option in the new corridor. It does not reflect the number of users who, given an option between driving their personal vehicle along the new corridor or boarding a bus along that corridor, would choose the bus.
In response, Mr. Woerner responded that, in his opinion, the most important data the County needed was the corridor connections. (See Figure 3 depiction of the approximate location of the new corridor, hand drawn in red, in relation to the planned east/west SMART corridors). In this case, Mr. Woerner considered the connections with Kendall Drive and Tamiami Trail bus lines to be important connections for users. But, when asked directly whether the County needed ridership information to support
new Policy MT-4D, Mr. Woerner said, “No. I don’t believe we needed it, but it certainly was helpful to know that there had been a projection made.”
Mr. Woerner’s testimony was not credible. As discussed above, the projection Mr. Woerner referred to was never made. There is no data to determine whether the County’s directive to another agency to fund and build 13 miles of mass transit service along the expressway route, will actually “promote mass transit use,” as required by the Plan.
The burden was on Petitioners to prove that the Plan Amendment is inconsistent with the cited goals and policies. Petitioners did prove that the Plan Amendment is inconsistent with Policy TC-4F, because all the experts agreed that the Plan Amendment does not “shift the travel mode” in this part of the County “from single occupancy vehicle to mass transit.”
However, Petitioners did not prove the Plan Amendment is
inconsistent with the Plan’s provisions to: “promote mass transit use,” as required by Policy TE-1A; “support[] use of transit,” as required by the Transportation Element Goal; “significantly enhance public transit services and implement transportation system management programs … to provide feasible alternatives to private automobile use,” as required by CON-1B; or maintain an “efficient” mass transit system, as required by the Goal of the Mass Transit Subelement.
Petitioners did prove that the Plan Amendment is not supported by data and analysis to determine whether it is internally consistent with the cited goals and policies.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties hereto pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida Statutes (2019).
To have standing to challenge or support a plan amendment, a person must be an “affected person,” as defined in section 163.3184(1)(a).
Petitioners are all “affected persons” with standing to bring this action pursuant to section 163.3184(1)(a).
“In compliance” means “consistent with the requirements of
§§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and 163.3248, with the
appropriate strategic regional policy plan, and with the principles for guiding development in designated areas of critical state concern and with part III of chapter 369, where applicable.” § 163.3184(1)(b), Fla. Stat.
The County’s determination that the Plan Amendment is “in compliance” is presumed to be correct and must be sustained if the County’s determination of compliance is fairly debatable. See § 163.3184(5)(c), Fla. Stat.
“The ‘fairly debatable’ rule is a rule of reasonableness; it answers the question of whether, upon the evidence presented to the [government] body, the [government’s] action was reasonably-based.” Lee Cty. v. Sunbelt Equities, II, Ltd. P’ship, 619 So. 2d 996, 1002 (Fla. 2d DCA 1993)(citing Town of Indialantic v. Nance, 400 So. 2d 37, 39 (Fla. 5th DCA 1981)).
The mere existence of contravening evidence is not sufficient to establish that a land planning decision is “fairly debatable.” It is firmly established that:
[E]ven though there was expert testimony adduced in support of the City’s case, that in and of itself does not mean the issue is fairly debatable. If it did, every zoning case would be fairly debatable and the City would prevail simply by submitting an expert who testified favorably to the City’s position. Of course that is not the case. The trial judge still must determine the weight and credibility factors to be attributed to the experts. Here the final judgment shows that the judge did not assign much weight or credibility to the City’s witnesses.
Boca Raton v. Boca Villas Corp., 371 So. 2d 154, 159 (Fla. 4th DCA 1979).
The standard of proof to establish a finding of fact is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.
UDB and Land Development Issues
Contrary to Respondent’s contention, the new corridor is “development,” as that term is defined by the Community Planning Act.17
Section 163.3164 defines “development” to “ha[ve] the same meaning as in [section] 380.04.”
Section 380.04, Florida Statutes, defines development broadly to mean “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” The new corridor makes a material change in the use of land in the path of its alignment. Land within the path of the new corridor will no longer be used for its current purpose (e.g., agriculture production, wetland mitigation, stormwater storage), and will instead be used as a transportation corridor.
In Respondent’s Proposed Recommended Order, counsel argues that the new corridor falls within the following exception to the definition of development: “Work by a highway or road agency or railroad company for the maintenance or improvement of a road or railroad track, if the work is carried out on land within the boundaries of the right-of-way.” § 380.04(3)(a), Fla. Stat.
Respondent’s counsel cites no authority for that overly-broad interpretation of the exemption. The case law construing the exemption is contrary to Respondent’s assertion. In Miami-Dade County v. Florida Power & Light Company, 208 So. 3d 111, 117-18 (Fla. 3rd DCA 2016), the court determined that construction of an electric transmission line on land that is not established as a right-of-way constitutes “development” as defined in section 380.04. Cf. Robbins v. City of Miami Beach, 664 So. 2d 1150, 1151 (Fla. 3rd DCA 1995) (finding that City streetscape project, which narrowed a
17 Respondent elicited conclusory opinion testimony from Mr. Woerner that the new corridor was neither a development nor a land use. Although there was no objection from Petitioner’s counsel, that testimony is irrelevant as it goes to a legal issue.
local street from three lanes to two, was exempt from the definition of development because it was roadway improvement carried out within the boundaries of the road right-of-way); Bd. of Cty. Comm’rs v. Dep’t of Cmty. Aff., 560 So. 2d 240, 241 (Fla. 3rd DCA 1990) (finding an improvement of an existing accessway for residents of a subdivision, undertaken within the existing right-of-way, was exempt from the definition of development).
The Plan Amendment approves future development of a 13-mile extension of the Dolphin Expressway.18 There is no evidence to support a finding that the development will be undertaken within existing MDX right- of-way.
Internal Inconsistences
Petitioners proved that the Plan Amendment is inconsistent with the unnumbered policy statements in paragraph 46 appearing on pages I-60,
I-61, and I-74 of the Plan.19
Further, Petitioners proved that the Plan Amendment is internally inconsistent with the following Plan objectives and policies: CON 1B;
CON 3B; Objective CON 7; and TE-1A and TC-4F.
Petitioners proved beyond fair debate that the Plan Amendment is inconsistent with section 163.3177(2).
Data and Analysis
Section 163.3177(1)(f) requires plan amendments to be “based upon relevant and appropriate data and analysis” by the local government, and includes “surveys, studies, community goals and vision, and other data available at the time of adoption.”
To be based on data “means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular
18 This conclusion should not be construed as a determination that the Plan Amendment is a “development order,” as that term is defined in section 380.031, Florida Statutes. The Plan Amendment does not, in and of itself, grant an application for a development permit.
19 As well as the policy statement relating to the Open Land Subarea 3 appearing on page I-68 of the Plan.
subject at the time of adoption of the plan amendment.” § 163.3177(1)(f), Fla. Stat.
Based upon the foregoing Findings of Fact, Petitioners proved beyond fair debate that the Plan Amendment does not react appropriately to data regarding the District’s requirement for more information to determine consistency with CERP projects. As discussed in the Findings of Fact, the County adopted the Plan Amendment without a determination from the District, even though the Plan requires denial of any plan amendment application which is inconsistent with a CERP project or objective.
Similarly, Petitioners proved that the Plan Amendment is not an appropriate reaction to transportation data, specifically the data demonstrating that the new corridor will make “meager” improvements to mobility in the West Kendall area, and no overall improvement in commutes from West Kendall to downtown, the airport, or other employment and urban centers to the east and north. Likewise, the Plan Amendment is not based on data and analysis to support use of the mass transit option that the Plan Amendment mandates to be co-located within the new corridor.20
Petitioners proved beyond fair debate that the Plan Amendment is inconsistent with section 163.3177(1)(f).
Conclusion
For the reasons stated above, Petitioners have proven beyond fair debate that the Plan Amendment is not in compliance as that term is defined in section 163.3184(1)(a).
20 Petitioners argued that there was a lack of data and analysis to support many other aspects of the Plan Amendment. Petitioners’ position was that the County should have collected additional data on many other issues before approving the Plan Amendment. However, the Community Planning Act is clear that a local government is not required to undertake original data collection. See § 163.3177(1)(f)2., Fla. Stat. The issue is not whether the County should have collected more data, but whether the Plan Amendment is an appropriate reaction to the data that was available to the County at the time the Plan Amendment was adopted.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Miami-Dade County Comprehensive Plan Amendment adopted by Ordinance 2018-109 on September 27, 2018, is not “in
compliance,” as that term is defined in section 163.3184(1)(b).
DONE AND ENTERED this 30th day of March, 2020, in Tallahassee, Leon County, Florida.
S
SUZANNE VAN WYK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings this 30th day of March, 2020.
COPIES FURNISHED:
Carlos A. Gimenez, Mayor Miami-Dade County
Stephen P. Clark Center, 29th Floor 111 Northwest First Street
Miami, Florida 33128
Dennis Alexander Kerbel, Esquire Miami-Dade County
Suite 2810
111 Northwest First Street Miami, Florida 33128 (eServed)
John C. Lukacs, Esquire
John C. Lukacs, P.A., Trial Lawyers Suite 600
75 Valencia Avenue
Coral Gables, Florida 33134 (eServed)
Francisco J. Pines, Esquire Francisco J. Pines, P.A. Suite 220
3301 Ponce de Leon Boulevard Coral Gables, Florida 33134 (eServed)
Christopher J. Wahl, Esquire
Miami-Dade County Attorney's Office Suite 2810
111 Northwest First Street Miami, Florida 33128 (eServed)
James Michael Porter, Esquire James M. Porter, P.A.
10th Floor
9350 South Dixie Highway Miami, Florida 33156 (eServed)
Paul J. Schwiep, Esquire Coffey Burlington, P.L. Penthouse 1
2601 South Bayshore Drive Miami, Florida 33133 (eServed)
Richard J. Grosso, Esquire Richard Grosso P.A.
Mail Box 300
6511 Nova Drive
Davie, Florida 33317 (eServed)
William Chorba, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building
107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
James Uthmeier, Esquire Office of the General Counsel
Executive Office of the Governor Suite 209, The Capitol
400 South Monroe Street Tallahassee, Florida 32399-001 (eServed)
Barbara Leighty, Clerk
Transportation and Economic Development Policy Unit
Room 1802, The Capitol Tallahassee, Florida 32399-0001 (eServed)
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 |
|---|---|---|
| Mar. 30, 2020 | Recommended Order | Petitioners proved, beyond fair debate, that the Plan Amendment is not "in compliance," as that term is defined in section 163.3184(1)(a), Florida Statutes. |
