Findings Of Fact On August 13, 1984, Mary E. Willis, Respondent, ran an advertisement in the Palm Beach Post Times to which a member of the public responded on August 14, 1984, by phone call. During that phone conversation Respondent offered personal services as defined in Chapter 400, Part II, Florida Statutes, to the caller for care of the caller's mother at 4837 Badger Road, for a specified monthly charge. At the time, Respondent had no valid current license to operate an Adult Congregate Living Facility. On August 18, 1984, Respondent offered to provide personal services as defined in Chapter 400, Part II, Florida Statutes, to two members of the public at 4837 Badger Road, West Palm Beach, Florida. Respondent had no valid current license on this date. On August 18, 1984, two members of the public responded to an invitation by Respondent pursuant to the above advertisement and observed Respondent operating an Adult Congregate Living Facility without a valid current license at 4837 Badger Road, West Palm Beach, Florida.
Recommendation Based upon the above findings of fact and conclusions of law, and also based upon agreement of the parties, it is recommended that a fine of $1500 be assessed against Respondent. DONE and ENTERED this 4th day of April, 1985 in Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985. COPIES FURNISHED: K. C. Collette, Esquire HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd fl. West Palm Beach, Florida 33401 Dorothy M. Walker, Esquire 349 SE 3rd Street Belle Glade, Florida 33430 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether Petitioners are "affected persons" entitled to pursue the instant challenge to the City of Miami Beach's Year 2000 Comprehensive Plan pursuant to Section 163.31B4(9), Florida Statutes? If so, whether the City of Miami Beach's Year 2000 Comprehensive Plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by Petitioners?
Findings Of Fact Based upon the record evidence and the stipulations of the parties, the following Findings of Fact are made: City of Miami Beach: An Overview The City of Miami Beach is an incorporated municipality located within the jurisdictional boundaries of Dade County, Florida. It is governed by a seven member City Commission. The City consists of a main island and a number of smaller natural and man-made islands that lie to the east of the Dade County mainland. They are separated from the mainland by Biscayne Bay. To their east is the Atlantic Ocean. The City is now, and has been for some time, virtually fully developed. Less than 2% of the land in the City is vacant. Those parcels that are vacant are generally small in size and they are scattered throughout the City. The City is situated in the most intensely developed area in Dade County. Approximately 100,000 permanent residents live on the City's seven square miles of land area. In addition, the City has a sizable seasonal population Tourism is the backbone of the City's economy. Golf is among the activities visitors to the City are able to enjoy. There are two public 18-hole golf courses and one private 18-hole golf course in the City. The City also has a public 9-hole golf course, hereinafter referred to as the Par 3 Golf Course. Par 3 Golf Course and Surrounding Area The Par 3 Golf Course is owned by the City and leased to the American Golf Corporation, which operates the course. The course consists of nine relatively short holes. The longest of these holes is 180 yards. The shortest is 100 yards. The remaining holes average 150 yards in The course has been completely renovated and is currently in excellent condition. Since the renovation work, the number of players has increased significantly. Nonetheless, the course is still under-utilized. The land upon which the golf course is built is not environmentally sensitive. There are, however, a number of large, mature trees on the property. The Par 3 Golf Course is located on a 25 acre tract of land in the south central part of the City. It is bounded by 28th Street on the north, Dade Boulevard and Collins Canal on the south, Pine Tree Drive on the east, and Prairie Avenue on the west. All of these roadways are classified as "urban" by the Florida Department of Transportation Pine Tree Drive is one of the major north-south thoroughfares in the City. It is part of the Dade County Road System and has been assigned a Level of Service of "D" by the County. That portion of the roadway which borders the golf course has four lanes of through traffic, plus two parking lanes, and is divided by a median strip. The area surrounding the golf course is entirely developed. The development is primarily, but not exclusively, residential in nature. Residential structures are particularly predominant to the north and to the west of the golf course. Among the nonresidential structures found in the immediate vicinity of the golf course are: the Youth Center to the north; the Hebrew Academy's elementary school building, Miami Beach High School, and a City fire station, maintenance yard and fuel facility to the south; and the Fana Holtz Building, a five story building, with a basement parking garage, which currently houses the Hebrew Academy's junior and senior high school program, to the east on the other side of Pine Tree Drive. Parking is inadequate in the area of the golf course. The City is currently investigating ways to alleviate the parking problems in the area. Option to Exchange Property On June 7, 1989, at a regularly scheduled meeting, 1/ the City Commission voted to give the Hebrew Academy, a private educational institution, an option to purchase from the City a 3.87 acre portion of the Par 3 Golf Course located immediately adjacent to and north of the Hebrew Academy's elementary school building, in exchange for the Fana Holtz Building and the land on which it is situated. The Hebrew Academy has plans to construct a new junior and senior high school building, which will be able accommodate more students than the existing facility, on the land it will acquire if it exercises its option. The Hebrew Academy's acquisition of the land and its construction of a building on the site will disrupt the operations of the golf course. In addition, at least some of the large, mature trees that presently stand on the site will have to be removed. The course's third and fourth holes now occupy the land that the Hebrew Academy has been given the option to purchase. The course therefore will have to be redesigned to eliminate or relocate these holes if the Hebrew Academy purchases the land and constructs a building on it. Golfers playing the Par 3 Golf Course generally have the benefit of cool breezes that blow from the southeast. A multistory building situated on the land now occupied by the third and fourth holes will block some of these breezes that golfers playing other holes now enjoy. If the City acquires the Fana Holtz Building, it may move the offices of several City departments into the building. Such a move, coupled with an increase in the size of the Hebrew Academy's enrollment, would create a need for additional parking spaces in an area where parking is already a problem. Petitioners Falk and Miami Beach Homeowners Association Mildred Falk is now, and has been for the past 53 years, a resident of the City of Miami Beach. The Miami Beach Homeowners Association (Association) is a nonprofit organization of Miami Beach homeowners. Its primary purpose is to educate the public concerning matters of local interest in the City. For the past 15 years, Falk has been the President of the Association. Falk does not require formal permission from the Association's Board of Directors to address the City Commission on behalf of the Association. Falk has an understanding with the members of the Board that, if they take a position on an issue that will come before the City Commission, she will represent their collective views at the City Commission meeting in question without being formally requested to do so. Falk regularly appears before the City Commission in her capacity as a representative of the Association. As a general rule, though, she does not expressly state during her presentations that she is representing the Association. She considers it unnecessary to provide such an advisement because the persons she is addressing already know of her role as a spokesperson for the Association. On April 5, 1989, Falk Submitted a completed Lobbyist Registration Form to the City Clerk. On the completed form, Falk indicated that she had been employed by the Association to engage in lobbying activities with respect to a particular item, unrelated to the instant controversy, that was then before the City Commission. On February 5, 1990, Falk submitted another completed Lobbyist Registration Form to the City Clerk. On this completed form, she indicated that she had been employed to lobby with respect to "[a]ll issues that affect Miami Beach before the City Commission, Authorities or Boards." There was no indication on the form, however, as to what person or entity had employed her to engage in such lobbying activity. These are the only completed Lobbyist Registration Forms that Falk has filed with the City Clerk. Adoption of the City's Comprehensive Plan The City Commission considered the matter of the adoption of the City's Year 2000 Comprehensive Plan at public hearings held on September 7, 1989, and September 21, 1989. Notice of these adoption proceedings was published in the "Neighbors" section of the Miami Herald. 2/ The Miami Herald is a newspaper of general paid circulation in Dade County. The "Neighbors" section of the Miami Herald is circulated twice weekly along with other portions of the Herald in the following towns and municipalities: Miami Beach; Bal Harbour; Surfside; Bay Harbor Islands; Golden Beach; North Bay Village; Sunny Isles; and Indian Creek Village. The "Neighbors" section of the Miami Herald is: (a) published at least on a weekly basis; (b) printed in the language most commonly spoken in the area within which it circulates; (c) not a newspaper intended primarily for members of a particular professional or occupational group; (d) not a newspaper whose primary function is to carry legal notices; and (e) not given away primarily to distribute advertising. At the close of the public hearing held on September 21, 1989, the City Commission unanimously passed Ordinance No. 89-2664 adopting the City's Year 2000 Plan. On the future land use map (FLUM), adopted by the City Commission as part of the plan, that portion of the Par 3 Golf Course which the Hebrew Academy has the option to purchase is designated PFE (Public Facility- Educational). The property that the City will receive if the Hebrew Academy exercises its option has a land use designation of PF (Public Facility- Fire, Police, Other) on the FLUM. Policy l.2q. of the plan's future land use element contains the following discussion concerning the land use designation of these parcels of property: On June 7, 1989, the City Commission approved an option with the Hebrew Academy to exchanged [sic] private land for a portion of the Par 3 Golf Course. At the exercise of the option, the affected portion of the Par 3 Golf Course shall automatically be designated as Public Facilities [sic]- Educational. The property that the City will obtain will be designated as Public Facility- Other. 3/ During the public hearings that culminated in the City Commission's adoption of the City's Year 2000 Comprehensive Plan, Falk made oral presentations to the City Commission. She criticized the decision that had been made to allow the Hebrew Academy to purchase, at its option, the "affected portion of the Par 3 Golf Course" referenced in Policy 1.2q. of the plan's future land use element. It was her contention that, in accordance with a restrictive covenant entered into between the City, the Alton Beach Realty Company and the Miami Beach Improvement Company on June 17, 1930, the City was prohibited from allowing any portion of the land on which the golf course was built "to be used for any purpose whatsoever, other than for a golf course and/or golf links." At no time during her remarks did she contend that the plan ultimately adopted by the City Commission was contrary to any requirements dealing with the subject of urban sprawl. Nor did she argue that the notice of the adoption hearings that the City had provided was in any way deficient or inadequate. Falk did not identify herself at the adoption hearings as a representative of the Association. 4/ Nonetheless, in presenting her remarks to the City Commission, she was expressing not only her own views, but those of the Association as well. Prior to these hearings, she had informally polled the members of the Association's Board of Directors and they had each indicated to her that they opposed the "land swap" between the City and the Hebrew Academy. While they did not formally request that she appear before the City Commission to voice their concerns, it is not their standard practice to issue such requests. Neither Falk nor the Association submitted any written comments concerning the City's Year 2000 Comprehensive Plan during the City's review and adoption proceedings Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" a- "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leap frog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. * * * Low-density, Single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas should be protected from urban development. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it is necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities per square mile: Density Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the techniques recommended in the memorandum to curb "urban sprawl" is "[p]romoting urban infill development and redevelopment." The construction of a multistory building on the Par 3 Golf Course and the conversion of the Fana Holtz Building to government use would not constitute any of the three types of development that the Department has indicated in its memorandum are characteristic of "urban sprawl." Rather, these activities would be in the nature of "infill development and redevelopment" inasmuch as they would occur, not in a "rural area" or on the "urban fringe," as those terms are used in the memorandum, 5/ but rather in the heart of an area of the "highest urban density."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order in the instant case declining to find the City of Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on the grounds urged by Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of August, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13 day of August, 1990.
The Issue By its Motion to Dismiss, Plant City raised the question of the jurisdiction and authority of the Department of Transportation to close a railroad crossing on its own initiative. In short, Plant City argued that under the Home Rule Provisions of the Constitution of the State of Florida and Chapter 375, Florida Statutes, Plant City had authority to regulate railroad crossings and was the only entity which could initiate the closing of a crossing within the city's corporate limits. The Department of Transportation and Seaboard Coast Line Railroad Company argued that Section 330.12, Florida Statutes, gave the Department authority to regulate the opening and closing of railroad crossings, and that this authority to open and close crossings anywhere in the state was exclusive. While it was argued that the Department had the authority to initiate such an action on its own initiative without a request from a local government or a railroad, this is not an issue based on the facts presented because the Seaboard Coast Line Railroad Company initiated the action to close the railroad crossings in question. The Motion to Dismiss was denied on the basis that the Department of Transportation and Plant City had joint authority to regulate railroad crossings in the city; however, the Department had exclusive authority to open and close railroad crossings in the state under Section 338.12(3), Florida Statutes. The remaining issue relates to a factual determination of whether the crossings in question should be closed. It was held that these determinations should be made in light of the criteria for closing railroad crossings and opening crossings as stated in Rule 14-46.03(a) and (b), Florida Administrative Code. The rule for closing a crossing states that a crossing is a candidate for closing if it does not have active grade crossing devices, has a traffic count of less than 1,000 vehicles per day, and has an access read to an adjacent crossing; however, closing should not be considered if it would increase the traffic on the adjacent crossing to the capacity level, or if the adjacent crossing is already at the capacity level. In addition, the criteria for opening a crossing are necessity, convenience, and safety of rail and vehicular traffic.
Findings Of Fact Gordon Street Crossing The traffic count on the Gordon Street Crossing was taken on several occasions. The highest one-day count recorded was 732 crossings, while the lowest number of crossings for one day was 200. Traffic across this crossing is less than 1,000 crossings per day. The Gordon Street Crossing lacks active grade crossing devices. The most accessible crossing adjacent to the Gordon Street Crossing is located 340 feet west at Warnell Street. Warnell Street is accessible from Gordon Street north of the railroad track via Baker Street and Reynolds Street, a paired one-way system. Warnell Street is accessible from Gordon Street south of the railroad track via Jenkins Street. The next crossing east of Gordon Street is Maryland Avenue, located 1,345 feet to the east. It is accessible north of the railroad track on the Reynolds/Baker Street system, and south of the railroad track on Jenkins Street. The highest traffic count recorded on the Maryland Avenue Crossing for a 24-hour period was 2,784 crossings. This is well below the capacity of this crossing, which is signalized with flashing lights and gates. The highest count recorded on the Warnell Street Crossing was 1,700 crossings in a 24-hour period. This is also well below the maximum traffic count which this crossing can handle. The Warnell Street Crossing has no active signaling devices at this time. Closing of the Gordon Street Crossing would not deny access to any real property, and therefore maintaining the crossing is not necessary to the use and enjoyment of any real property by its owner. Public safety would be enhanced only slightly by the elimination of the Gordon Street Crossing. Most of the benefit of closing this crossing would be derived from the shift of traffic from the Gordon Street Crossing to the signalized Maryland Avenue Crossing. However, the Warnell Street Crossing, which is not signalized and is only 230 feet east, will probably receive the majority of the diverted traffic. This will negate to a degree the benefit of the closing. The inconvenience to the public from closing the Gordon Street Crossing will be minimal because of the Warnell Street route which is very close at hand. Thomas Street Crossing The traffic count on the Thomas Street Crossing was taken on several occasions. The highest one-day count recorded was 640 crossings, while the lowest was 113 crossings. Traffic over the crossing was less than 1,000 vehicles per day. The Thomas Street Crossing is located in the very center of Plant City and is signalized with flashing lights without gates. There are several crossings which provide alternatives to the Thomas Street Crossing. Moving to the east, the next four streets cross the railroad track: Wheeler Street, 230 feet away; Evens Street, 510 feet away; Collins Street, 780 feet away; and Palmer Street, 1,060 feet away. To the west there are two crossings: Walker Street, 270 feet away; and Howard Street, 800 feet away. North of the railroad track these crossings may be reached by the Baker/Reynolds Street paired one-way system or by Mahoney Street, a two-way street. To the south of the railroad track the crossings may be reached on South Drane/Arden Mays. The Thomas Street Crossing is the only one of these crossings which dead-ends immediately south of the railroad track. The highest traffic count recorded on Wheeler Street in one day was 11,760 crossings. The highest count recorded on Walker Street in one day was 1,237 crossings. Traffic capacity at either crossing immediately adjacent to the Thomas Street Crossing would not be pushed to or beyond its designed capacity by the closing of the Thomas Street Crossing. Tie closing of the Thomas Street Crossing would not deny access to any real property, and therefore maintaining the crossing is not necessary to the use and enjoyment of any real property by its owner. The accessibility to multiple alternative crossings east and west of the Thomas Street Crossing would prevent any substantial inconvenience to the public, particularly in light of the fact that the Thomas Street Crossing is the only one of these crossings which is not a through street south of the railroad track. Public safety would be only minimally enhanced by the elimination of this crossing because of the close proximity of the remaining crossings. While it is argued that elimination of any crossing reduces the risk of an auto/train collision, it is the act of crossing the track that creates the risk. The closing of this crossing will not affect the number of crossings but only divert the traffic. The benefit of greater distance between the remaining crossings is nullified by the number of crossings existing so closely to both the east and west of the Thomas Street Crossing. Davis Street Crossing The traffic count on the Davis Street Crossing was taken on several occasions. The highest traffic count recorded was 1,700 cars per day, and the lowest 486. On one other occasion it exceeded 1,000 cars per 24-hour period by 39 crossings. It had a five-day average of 856.4 crossings. The Davis Street Crossing does not have active grade crossing devices. The closest alternative crossing is Howard Street, located east 1,190 feet. The next alternative crossing to the west is Alexander Street, 2,100 feet away. The Howard Street Crossing and the Alexander Street Crossing can be reached south of the railroad track on Haines Street. The Howard Street Crossing can be reached north of the railroad track on the Bakers Reynolds Street paired one-way system or on Mahoney Street. Although north of the railroad track one can travel west from Davis Street to Alexander Street, the routes can only be described as circuitous. Reynolds Street is one-way the wrong way, Mahoney Street is not a through street west of Carey Street, and Baker Street begins to run northwest at Carey Street. The highest traffic count recorded on the Howard Street Crossing was 1,030 crossings per day. The highest traffic count recorded on the Alexander Street Crossing was 18,288 per day. Traffic capacity at either crossing immediately adjacent to the Thomas Street Crossing would not be pushed to or beyond its designed capacity by closing of the Davis Street Crossing. Closing of the Davis Street Crossing would not deny access to any real property, and therefore maintaining the crossing is not necessary to the use and enjoyment of any real property by its owner. Public safety would be enhanced only slightly by the closure of the Davis Street Crossing because of the remaining multiple crossings. The small benefit to public safety would be primarily from the diversion of traffic to the Alexander Street Crossing which is fully signalized with flashing lights and gates. The Davis Street Crossing is essentially flat with good visibility afforded to both train and vehicular traffic. Train traffic would be traveling at reduced speed at the Davis Street Crossing, having entered the city limits of Plant City. Convenience of the public would be adversely affected by the closing of the Davis Street Crossing. The crossing in question carries on some days more than 1,000 cars per day. The average daily traffic count (ADTC) of 856 crossings exceeds that of Howard Street (450 ADTC) and Walker Street (529 ADTC), both of which would be retained. The distances to the alternative crossings are greater than the distances to alternative crossings of the other crossings proposed for closing. The lack of accessibility is compounded north of the railroad track by the lack of through streets running east and west. As pointed out at hearing, the area immediately south of the Davis Street Crossing is primarily a black neighborhood, while the area immediately north is predominantly white. The principal recreational facilities are located northwest of the Davis Street Crossing. Closing this crossing would create a physical barrier between these neighborhoods and residents and limit accessibility of the recreational facilities in the northwest area of town. The police chief testified that closure of the Davis Street Crossing would make transfers of vehicles between the southwest and northwest parts of town more difficult. The fire chief pointed out that the area along Haines Street between Davis Street and Alexander Street immediately south of the railroad track is an industrialized area containing large warehouses. In fighting a fire in this area, a crossing at each end of the area would be helpful. Three alternative routes of travel between the southwest and northwest areas are possible if the Davis Street Crossing were closed. Using the map, Exhibit 10, which lacks any scale reference, the street distances between the center of the southwest area to the hospital (H) and recreational facilities (A & P) were measured. Alternative I was via Howard Street. Alternative II was via Alsobrook Street and Alexander Street, and Alternative III was via Haines Street and Alexander Street. The following measurements were taken from the dot (.) in the intersection of Ball Street and the third street west of Franklin Street, which is unlabeled: A P H Alternative I 17.0" 17.75" 20.0" Alternative II 15.5 15.50 13.5 Alternative III 14.5 14.50 13.5 Warnell Street 12.5 13.50 16.0 The existing crossing clearly provides the shortest distance to the recreational facilities, which is a prime concern to persons in the southwest section of town. Alternative III would require traffic to detour through an industrialized area of town, and Alternatives I and II are circuitous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head enter a final order closing the Gordon Street and Thomas Street Crossings and leaving the Davis Street Crossing open. DONE and ORDERED this 25th day of August, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronae B. Keiser, Esquire Seaboard Coast Line Railroad Company 500 Water Street Jacksonville, Florida 32202 Paul S. Buchman, Esquire Buckman Building 212 North Collins Street Post Office Box 5 Plant City, Florida 33566 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION and SEABOARD COAST LINE RAILROAD COMPANY, Petitioners, vs. CASE NO. 79-663T 79-964T PLANT CITY, 79-1910T Respondent. /
Recommendation Based upon the above findings of fact and conclusions of law, it is RECOMMENDED that the application of the L&N Railroad Company to close the Johnson Street or Post Office Road rail/highway crossing be DENIED. Respectfully submitted this 24th day of October, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Dawn E. Welch, Esquire Beggs and Lane Post Office Box 12950 Pensacola, Florida 32576 John Dowd, Esquire Post Office Box 129 Fort Walton Beach, Florida 32548 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32304 Secretary William N. Rose Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32301
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
Findings Of Fact In late December, 1991, the Department decided to seek space for a move of its regional toll operations office currently located in Lake Worth, Florida. This office provides administrative support for toll personnel and the distribution of supplies and maintenance equipment for the nine toll plazas between Ft. Pierce and Lantana. This move was sought because the Department had outgrown its current office and concurrently therewith, a decision was made to seek a more centralized location to better service the existing and two additional toll plazas sought. Under the existing procedures before letting any lease the Department must seek and receive approval of the Department of General Services, (DGS), leasing office for the proposal. Consistent therewith, a letter of agency staffing was prepared to justify the amount of space the office would need. DGS approved the Department's request for the lease on December 27, 1991, and assigned lease No. 550:0234 to the procurement action. By that approval, the Department was authorized to begin soliciting quotes for the lease of 2,985 square feet of office space. Since the proposed lease was for less than 3,000 square feet, under existing DGS rules the procurement did not have to be competitively bid. The Department's request to DGS sought office space in either Jupiter or Palm Beach Gardens and described the requirement for the property as being centrally located on Florida's Turnpike between the Ft. Pierce and Lantana plazas. Six prospective landlords submitted quotes for this space. They were Worth Realty and Management Co. Inc.; Cascio Real Estate, Inc.; Elizabethan Interiors; Petitioner, Kohno Corporation, USA; Deitz Realty Company; and Paramount Real Estate Services, Inc. Several of the quotes submitted by other than Petitioner, Deitz Realty and Paramount Realty, were rejected right away for various reasons. The Worth Realty quote was rejected because the proposed location, (Lake Worth), the current location, did not meet the basic geographic criteria specified by the Department, and in addition, the future status of the building was uncertain because the owners had recently declared bankruptcy. Cascio Real Estate's bid required a $2,000.00 non-refundable deposit just to hold the space until a lease was signed, which the Department was not authorized to post, and Elizabethan's space was eliminated because it had been leased prior to the Department evaluation. This left three quotes for consideration - those of Petitioner, Deitz and Paramount. These three quotes were evaluated on the basis of the criteria, equally applied to all, which was specified by the Department's regional office in conjunction with its lease coordinator. Review revealed that Petitioner offered 2,925 square feet of space on the second floor of its building. The Department was seeking 2,985 square feet of space and any space for future growth over Petitioner's initial offering of 2,925 square feet would have been on a different floor, losing the contiguity of the office. The Department also preferred ground floor space for ease of access for the numerous deliveries and pick ups of supplies which takes place at the regional office as well as for the convenience of the many visitors to the office. Petitioner claims the distance from its parking area to its proposed office was minimal and serviced by elevator, but the Department's preference is still valid. In addition, the space offered by Petitioner included a private balcony and a private bathroom in that area which would be designated as the regional manager's office. This type of accommodation is considered inappropriate for state offices. In addition, Petitioner's space was not already built out and would have required some remodeling to be usable by the Department. The Director of the toll facilities office, who had the ultimate authority to select the best quote, rejected Petitioner's submittal as non- responsive because it contained 60 feet less than the 2,985 square feet called for. This 60 square feet, however, is well within the 3% leeway which Ms. Goodman indicated was the standard for determining the responsiveness of an offer. Notwithstanding the fact that the square footage was within acceptable parameters, this does not necessarily mean the evaluator had to consider it as functionally acceptable, and he did not. In addition, he considered the second story location and the unacceptable private bath and balcony as adverse factors. Petitioner's space was offered at $15.85 per square foot for the first year of a six year lease with an increase of 5% per year over the term of the lease. Deitz Realty's property was quoted at $22.65 per square foot for the first year of the least with a 4% increase per year over the term of the lease. Paramount's property in the Sun Bank Building was also offered at $22.65 per square foot with the same increase as Deitz. Petitioner's offer would have saved in excess of $100,000.00 over the term of the lease. Price, however, was not the primary consideration when the various quotes were evaluated. More important was the operational need of the regional office, and therefore, the Department did not attempt to negotiate a lower price with any of the offerors even though it was entitled to do so under DGS's interpretation of the controlling leasing procedures. Instead, the Department considered of higher priority the ground floor location; the location closer to a Turnpike entrance; the potential for growth and where that growth would be located; and whether the space offered was ready for occupancy or would require modification. Based on all those considerations, the Department determined that the space proposed in Fairway Center, at $22.65 per square foot was more desirable and better suited to its needs than that offered by Petitioner at a lower price. However, because of correspondence received from the Petitioner, the Secretary of the Department of Transportation ordered an internal audit of the lease process utilized here. As a part of that audit, the auditor interviewed the personnel who had participated in the lease process both at the Department and at DGS; reviewed the statutes and both Department's rules and procedures relevant to this procurement; and reviewed the lease proposals. The report of this audit, accomplished according to normal Departmental procedure, indicated that only two of the six quotes received were responsive - those of Petitioner and Elizabethan Interiors, whose property had already been leased prior to evaluation. The other four offers were determined to be non-responsive either because the price exceeded the maximum rate allowed or for being outside the defined geographic area even though the Governor and Cabinet could approve an exception. This included Fairway Center. The audit report also concluded that in conducting this procurement, the Department had complied with normal leasing procedures and guidelines for this type of procurement. The report thereafter recommended that because of the above, it was in the best interests of the state to begin to re-solicit offers for this procurement, and also recommended that all offers already received be rejected. It further recommended that in any future procurement the requisite criteria to be used be documented in advance even though the procedure for leases of under 3,000 square feet of property did not require such documentation. Department of Transportation procurement procedures require that at least three responsive quotes be forwarded to the Department of General Services for evaluation. In the instant case, the audit conducted at the behest of the Secretary established that only two responsive bids had been received. This situation req uired a re-bidding or a new solicitation and based on that determination, all bids, including Petitioner's, were rejected. Petitioner's protest was filed as a result of that rejection.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that the Department of Transportation enter a Final Order in this case dismissing the protest of Kohno Corporation, U.S.A., in regard to the Department's rejection of all offers in the procurement of lease No. 550:0234 for the Regional Toll Office of the Florida Turnpike Authority in Palm Beach County, Florida. RECOMMENDED this 16th day of June, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted but location was not the only basis for not choosing Petitioner's property. Accepted. Size alone was not the disqualifying factor. Rejected as an exercise in semantics. The Department made it very clear that it desired its office to be on a floor which provided direct access to the public and for deliveries without the necessity for the use of an elevator. Accepted and incorporated herein. FOR THE RESPONDENT: 1. - 6. Accepted and incorporated herein. 7. - 11. Accepted and incorporated herein. 12. - 15. Accepted and incorporated herein. 16. - 18. Accepted and incorporated herein. Accepted and incorporated herein. & 21. Accepted and incorporated herein. 22. - 25. Accepted and incorporated herein. 26. & 27. Accepted and incorporated herein. 28. & 29. Accepted and incorporated herein. 30. Accepted. COPIES FURNISHED: Randy Cropp Corporate Representative Kohno Corporation, U.S.A. 1615 Clare Avenue West Palm Beach, Florida 33401 Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Ben G. Watts Secretary Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 40E-10.041(3)(d) of the South Florida Water Management District (“the District”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Conservancy is a non-profit Florida corporation with its offices in Naples, Florida. It has 6,200 members residing in Southwest Florida. The mission of the Conservancy is to protect the environment and natural resources of Southwest Florida. The Caloosahatchee River is an important focus of the Conservancy’s organizational activities and objectives. A substantial number of the members of the Conservancy use the Caloosahatchee River for drinking water, boating, fishing, wildlife observation, and scientific research. The proposed rules create a prospective reservation of water in the not-yet-operational Caloosahatchee River (C-43) West Basin Reservoir “for fish and wildlife.” The Conservancy’s interests would be substantially affected by the proposed reservation. The District is a regional water management agency created, granted powers, and assigned duties under chapter 373, Florida Statutes (2013). It is headquartered in West Palm Beach, Florida. Proposed rule 40E-10.041(3) states: (3) Caloosahatchee River (C-43) West Basin Storage Reservoir: All surface water contained within and released, via operation, from the Caloosahatchee River (C-43) West Basin Storage Reservoir is reserved from allocation. The water reserved under this paragraph will be available for fish and wildlife upon a formal determination of the Governing Board, pursuant to state and federal law, that the Caloosahatchee River (C-43) West Basin Storage Reservoir is operational. The reservation contained within this subsection and the criteria contained in section 3.11.4 of the Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District, incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised in light of changed conditions or new information prior to the approval described in paragraph (3)(b) above. Pursuant to subsection 373.223(4), F.S., presently existing legal uses for the duration of a permit existing on [RULE ADOPTION DATE] are not contrary to the public interest. The Conservancy challenges only paragraph (3)(d), contending that it modifies or contravenes the implementing statute, section 373.223(4).
The Issue The issue to be determined in this case is whether two amendments to the Sunny Isles Beach Comprehensive Plan (Comp Plan), adopted by Ordinance Nos. 2019-549 and 2019-550 (Plan Amendments) on December 19, 2019, are "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties Petitioner resides and owns property within the City. Petitioner provided oral comments and objections to the City during the period beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the same. The City is a Florida municipal corporation with the authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. Land Use Designations The City was incorporated in 1997. In 2000, the City adopted its initial Comp Plan. As part of the initial Comp Plan, the City established the Town Center Planned Development District (Town Center) as an overlay area, which did not establish any densities or intensities. However, the Town Center overlay did contain underlying land use designations for the area as set forth in Policy 14A and 14B of the Comp Plan, which had established densities and intensities. The Mixed-Use Business land use category established a base density of 25 dwelling units per acre (du/acre), with a maximum density of 85 du/acre with density bonuses. Intensity was limited to a maximum of 2.0 floor area ratio (FAR). Community Facilities land use category established a maximum density of 25 du/acre, with the intensity limited to a maximum 2.0 FAR. Recreation Open Space land use category does not allow for development; therefore, there is zero density and intensity. In addition to the densities and intensities permitted for the identified land use categories, pursuant to Policy 14C of the Comp Plan, locations within the Town Center were designated as receiver districts for Transferable Development Rights (TDRs). Specifically, subparagraph (c) of Policy 14C established the limits on the use of TDRs by providing that: In no case […] shall the density or intensity on a receiver site exceed thirty (30) percent increase in the maximum permitted by the land use category limitations set in Policy 15B . . . and . . . in no case shall the resulting density bonus increases on any given receiver site exceed the number of dwelling units attainable on the sender site(s) under [comprehensive plan] provisions so as to assure NO net increase in city-wide residential dwelling unit Comprehensive Plan capacities occurs. Policy 14B of the Comp Plan set forth the Town Center's goals and objectives, including: The Town Center is encouraged to become the hub for future urban development intensifications around which a more compact and efficient urban structure will evolve. The Town Center is intended to be a moderate to high intensity design-unified area which will contain a concentration of different urban functions integrated both horizontally and vertically. The center will be characterized by physical cohesiveness, direct accessibility by mass transit services and high quality urban design. The Town Center is located to have direct connections to the 167th Street Causeway and Collins Avenue to ensure a high level of accessibility to the northeast Miami-Dade/bi-county area. Background In 2004, the City established the Town Center Zoning District in its Land Development Regulations (LDRs), which provided a maximum FAR of 5.2, and a maximum density of 75 du/acre. The intensity in the LDRs, as reflected by the FAR, exceeded the amount in the Comp Plan. However, the density in the LDRs was less than what was allowed in the Comp Plan. In 2007, the City proposed a comprehensive plan amendment that would have assigned density and intensity to the Town Center Planned Development District in its entirety. The state land planning agency objected to the proposed plan amendment in part because of a lack of data and analysis related to concurrency, emergency services, and hurricane evacuation routes. Beginning in 2005, the City approved a number of site plans for various development projects in the southern portion of the Town Center with underlying Mixed-Use Business land use designations. At that time, the City reviewed those developments solely for compliance with the City's LDRs for the Town Center Zoning District and without consideration of the maximum density and intensity allowable for the underlying land uses in the Comp Plan. As a result, all the approved projects in the southern portion of the Town Center with an underlying land use of Mixed-Use Business were permitted to be developed with intensities up to 5.2 FAR, which exceeded the allowable intensity of 2.0 FAR set forth in the Comp Plan for the Mixed-Use Business land use category. However, the densities allowed for those approved projects followed the Comp Plan, as the maximum density for the Mixed-Use Business land use category was 85 du/acre, whereas the maximum density allowable in the LDRs was 75 du/acre. Therefore, even though the City had not been evaluating the proposed site plans for compliance with the Comp Plan, all of the developed projects had densities that complied with the Comp Plan. In December 2018, a public hearing was conducted by the City Commission to consider the site plan for a development known as the Infinity Project. The proposed site for the Infinity Project was in the northern half of the Town Center. The City Commission unanimously voted to defer the matter to the January 2019 City Commission Meeting. To date, the application for site plan approval for the Infinity Project in the northern portion of the Town Center has not been approved or considered by the City Commission. While the City was considering the Infinity Project, the City became aware of the inconsistency between its Comp Plan and its LDRs with respect to the density and intensities within the entire Town Center area. As a result, the City began to take actions to remedy this inconsistency. In July 2019, the City Commission considered an ordinance to transmit to the state land planning agency, the Department of Economic Opportunity (DEO), a text-based comprehensive plan amendment to modify the FAR in the entire Town Center area. The City Commission voted to defer the matter. Instead, on August 28, 2019, the City Commission adopted on first reading an ordinance establishing a 12-month moratorium on the submission and consideration of any zoning applications in the Town Center District. The City Commission adopted the ordinance on second reading on September 19, 2019. On August 28, 2019, the City Commission also adopted a resolution declaring zoning in progress relating to development and redevelopment in the Town Center Zoning District. The Plan Amendments On October 17, 2019, the City Commission adopted on first reading Ordinance No. 2019-549, transmitting to DEO text-based amendments to the Town Center District that divided the Town Center into two overlay development districts: Town Center South and Town Center North. The text-based amendments also provided for density and intensity in the Town Center South overlay for the first time. Specifically, the maximum density was established at a maximum of 75 du/acre, and the intensity was established at a maximum of 5.2 FAR. These were the same as the LDRs. The Plan Amendments did not amend any portions of Policy 14C of the Comp Plan with respect to TDRs. The purpose of these amendments was to grandfather the various developments within Town Center South, which were previously approved with intensities that were inconsistent with the Comp Plan. Contrary to Petitioner's allegation, the density of each of these developments complied with the Comp Plan at the time of each’s approval. On October 17, 2019, the City Commission also adopted on first reading Ordinance No. 2019-550, transmitting to DEO the FLUM Plan Amendments reflecting the creation of the Town Center South and Town Center North overlay districts, and providing for amendment of the land use designation for certain properties located in Town Center South. Amendments to land use designations for specific properties in the Town Center South overlay area included changing the Bella Vista Park and Gateway Park from Mixed-Use Business to Recreation and Open Space. The Gateway Park Parking Garage changed from Recreation and Open Space to Community Facility. The Miami-Dade County Water and Sewer Facility changed from Mixed-Use Business to Community Facility. All these FLUM changes reflected a decrease in density. On October 17, 2019, the City Commission passed Resolution 2019-3006 (Plan of Action), adopting a schedule to bring the City's LDRs into conformity with the provisions of the amended Comp Plan, as provided by section 163.3194(1)(b). On October 30, 2019, the Florida Department of Transportation issued a letter to Alex David, the City’s planning and land use consultant, advising that it had reviewed the proposed text-based Plan Amendments and "found that the amendment will not have an adverse impact on transportation resources and facilities of State importance." On November 15, 2019, the South Florida Water Management District sent correspondence advising that there are "no regionally significant water resource issues" and offered only technical guidance regarding regional water supply planning. On November 25, 2019, the South Florida Regional Planning Council found that the proposed Plan Amendments were generally consistent with the Strategic Regional Policy Plan for South Florida. On November 22, 2019, the City's Mayor received correspondence from DEO advising that it had reviewed the proposed Plan Amendments and "identified no comment related to adverse impacts to important state resources and facilities within the [DEO's] authorized scope of review." DEO did provide a technical assistance comment. On December 19, 2019, the City Commission adopted both Ordinances on second reading. DEO's technical assistance comment directed the City to clarify that Town Center South and Town Center North were overlay districts and not separate land use categories. The City incorporated that clarification in bold text in the body of the adopted ordinance. The City then forwarded the adoption package of Plan Amendments to DEO for its review. On December 30, 2019, DEO issued a letter to Mr. David advising that the Plan Amendments package was complete and would be reviewed in accordance with section 163.3184(3). On January 28, 2020, DEO issued a letter to the City's Mayor advising that it had completed its review "and identified no provision that necessitates a challenge of the Ordinances adopting the amendment." Petitioner challenged the Plan Amendments on four grounds: (1) the City failed to submit relevant and appropriate data and analysis; (2) the Plan Amendments were internally inconsistent with the existing Comp Plan; (3) the Town Center South District was a new land use category; and (4) the Plan Amendments should not have been reviewed under the expedited review process pursuant to section 163.3184(2). Relevant and Appropriate Data and Analysis Petitioner alleged that the City did not provide any data or analysis to show it considered the impacts of alleged "massive increase of density and intensity in Town Center South on hurricane evacuation times [. . .]". Hurricane Evacuation Times and CHHA Petitioner's expert witness, Daniel L. Trescott, an expert in comprehensive planning and hurricane evacuation, opined that only increases in density would impact hurricane evacuation times, and that increases in intensity would not adversely affect hurricane evacuation times. Specifically, Mr. Trescott testified that if there was no increase in density then, in his expert opinion, the Plan Amendments would not trigger the need to evaluate the other policies and issues related to hurricane evacuation and Coastal High Hazard Areas (CHHA). Petitioner did not introduce any evidence that would support a finding that the Plan Amendments would actually increase density in Town Center South. Mr. Trescott testified that he did not perform an analysis that would demonstrate potential impacts on density resulting from the Plan Amendments. Also, Petitioner did not introduce any evidence to support a finding that the Plan Amendments would diminish future hurricane evacuation times, in the absence of a density increase. In fact, the undisputed testimony of the City's experts established that the Plan Amendments actually decreased the net density allowed in Town Center South. Claudia Hasbun, the City's planning and zoning director, was accepted as an expert in land use planning. Ms. Hasbun testified that the Plan Amendments would decrease the potential maximum allowable density in Town Center South by 462 dwelling units. Ms. Hasbun's analysis demonstrated that after consideration of the density provided by the Plan Amendments, including the land use changes reflected in the FLUM amendment, there was a significant reduction in potential maximum allowable density in Town Center South. Ms. Hasbun testified that the net total number of dwelling units that could ever be developed would decrease by 462 dwelling units for Town Center South because of the Plan Amendments. This analysis encompassed the absolute maximum redevelopment potential, and still reflected a reduction in density in Town Center South. Mr. Trescott confirmed that the potential maximum allowable density that existed under the current Comp Plan was actually greater than would be allowed under the Plan Amendments. He also acknowledged that land use changes reflected on the FLUM amendment would result in a decrease in density within Town Center South. Therefore, the uncontroverted evidence showed that the Plan Amendments decrease density. The City also presented the expert witness testimony of Alex David, the planning consultant with Calvin, Giordano & Associates, Inc. Mr. David testified that there would not be any impact on hurricane evacuation times resulting from the Plan Amendments. The reason was that the potential maximum allowable density resulting from the Plan Amendments was significantly reduced from the existing maximum potential density. Mr. David's testimony was undisputed, and Petitioner's expert witness conceded that there would be a net decrease in maximum potential density resulting from the Plan Amendments. Mr. David testified that a map created from a 2016 Sea, Lake, and Overland Surges for Hurricanes (SLOSH) computerized storm surge model was utilized to determine whether any portions of Town Center South were in the CHHA. The referenced SLOSH map was incorporated into the Comp Plan in 2016. Mr. David testified that the SLOSH model does depict five very minimal areas of Town Center South within the CHHA. However, those areas either have an underlying land use designation of Recreation Open Space, cannot be developed for residential purposes and have no density, or they are located on parcels that have already been developed (or in one case is currently being developed) at higher elevations. The parcels developed or being developed at higher elevations have the appropriate mitigation to remove them from the CHHA. As a result, under the 2016 SLOSH model map in the Comp Plan, none of the property affected by the Plan Amendments was located in the CHHA. During the hearing, Mr. Trescott suggested that the City should utilize the map developed from the 2017 version of the SLOSH model, rather than the 2016 version adopted in the Comp Plan. Despite testifying that the City was required to use the 2017 version of the SLOSH map, Mr. Trescott admitted that Miami-Dade County, the entity responsible for emergency management, had not adopted the 2017 SLOSH map. Mr. Trescott also admitted that the State of Florida had not adopted the 2017 SLOSH map into the State's Emergency Plan. In addition, Mr. David testified that he was unaware of any jurisdiction in Florida that had adopted the 2017 SLOSH map. Thus, it was reasonable for the City to rely on the data contained in the 2016 SLOSH map incorporated in its Comp Plan. Consistent with Mr. Trescott's testimony, since there is no increase in density, the Plan Amendments would not trigger the need to evaluate the other policies and issues related to hurricane evacuation and CHHA. Petitioner did not prove beyond fair debate that the City failed to provide relevant and appropriate data or analysis with respect to impact on hurricane evacuation times. The evidence adduced at the hearing established that such an evaluation was not required because density was decreased by the Plan Amendments. Even so, the evidence established that since density was decreased by the Plan Amendments, hurricane evacuation times would not be impacted, and that, pursuant to the 2016 SLOSH model map adopted in the Comp Plan, none of the property affected by the Plan Amendments was located within the CHHA. Concurrency Analysis Petitioner also contended that the City failed to submit any data or analysis to show the impacts on sewer and water capacities, traffic/transportation, coastal management, infrastructure, and schools. However, the memorandum incorporated into Ordinance No. 2019-549 clearly demonstrated that an analysis was conducted. The analysis determined that the City did meet its level of service (LOS) standards for each of those areas. In addition, Mr. David testified to the methodology used to analyze concurrency for each of the areas and the conclusions reached with respect to them. His testimony was not contradicted and demonstrated that the Plan Amendments meet the City's LOS standards. Mr. David testified that in completing the concurrency analysis, he utilized data based upon the existing development in Town Center South. He opined that the methodology was a conservative approach for evaluating concurrency. Mr. David also testified that all the projects developed in Town Center South had been individually and separately reviewed for concurrency purposes during the site plan approval process. Internal Inconsistency Petitioner alleged that the Plan Amendments were internally inconsistent with two provisions of the City's existing Comp Plan. Objective 3C, which reads as follows: The City of Sunny Isles Beach shall not increase maximum densities and intensities in the Coastal High Hazard Area beyond that which is permitted in the Comprehensive Plan and Land Development Regulations as of May 1, 2016, including bonuses and transfer of development rights provided therein. The provision of facilities and services to accomplish the timely evacuation of the City's residents in advance of approaching hurricanes shall be a priority of the Sunny Isles Beach's transportation and hurricane preparedness programs. The City's Comp Plan did not assign densities and intensities in the Town Center Development District overlay as of May 1, 2016. However, as previously found, the City's LDRs did include densities and intensities for the Town Center as of May 1, 2016. These Plan Amendments did not increase the densities and intensities contained in the LDRs as of that date, and therefore, are not internally inconsistent with the City's existing Comp Plan. Petitioner also asserted that the Plan Amendments were inconsistent with Policy 5C, which provides as follows: All planning activities pertaining to development and redevelopment and the provision of public services and facilities in the City of Sunny Isles Beach shall be consistent with the "Population Estimates and Projections" outlined below, as they are periodically amended and updated. During the hearing, the City introduced the 2019 population estimates derived from the U.S. Census Bureau. The census data reflected that the 2019 population estimate was 21,804, which was below the 2020 estimates set forth in Policy 5C. Further, the unrebutted testimony of the City's experts, Ms. Hasbun and Mr. David, was that the Plan Amendments would decrease the maximum potential density that could be developed in Town Center South. Petitioner did not introduce any evidence that the population estimates and projections would increase because of the Plan Amendments. Petitioner did not prove beyond fair debate that the Plan Amendments were internally inconsistent with Objective 3C and Policy 5C of the City's existing Comp Plan. New Land Use Category Petitioner alleged that Town Center South was a new land use category. Petitioner referenced the comments from DEO that the City should consider amending the FLU text to clarify that Town Center North and Town Center South are overlay districts, not separate land use categories. However, the City did specifically incorporate those comments in Ordinance No. 2019-549, where the word "overlay" appears in bold text to reflect said clarification. Petitioner's claim that the City created a new land use category called "Town Center South" was not supported by the evidence. Expedited Review Process Petitioner alleged that the City should not have proceeded with the expedited review process because of the City's alleged past failures to comply with the law. Section 163.3184(2) provides for an expedited review process for adoption of comprehensive plans and amendments. The two exceptions to this expedited review process are contained in section 163.3184(2)(b) and (c), neither of which are applicable to the Plan Amendments. Petitioner suggested that the Plan Amendments should have been treated as an evaluation and appraisal review (EAR) under section 163.3191. However, the determination of whether the comprehensive plan should be evaluated under this provision is the responsibility of the City. Also, the City's last EAR was conducted in 2016, so the City is not required to perform the analysis again until 2023. Petitioner failed to introduce any evidence to support a finding that the City is precluded from proceeding pursuant to section 163.3184(3). Summary Petitioner failed to carry her burden of proving beyond fair debate that the City of Sunny Isles Beach Plan Amendments adopted by Ordinance Nos. 2019-549 and 2019-550 on December 19, 2019, are not in compliance, as that term is defined in section 163.3184(1)(b).
Conclusions For Petitioner Magaly Gordo: Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 For Respondent City of Sunny Isles Beach: Gregory Thomas Stewart, Esquire Elizabeth Desloge Ellis, Esquire Nabors, Giblin & Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 Valerie Vicente, Esquire Nabors, Giblin & Nickerson, P.A. Suite 1000 8201 Peters Road Plantation, Florida 33324
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Sunny Isles Beach Plan Amendments adopted by Ordinance Nos. 2019-549 and 2019-550 on December 19, 2019, are "in compliance," as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 3rd day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S FRANCINE M. FFOLKES Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2021. Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 Elizabeth Desloge Ellis, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Edward A. Dion, Esquire City of Sunny Isles Beach Fourth Floor 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Valerie Vicente Nabors, Giblin and Nickerson, P.A. Suite 1000 8201 Peters Road Plantation, Florida 33324 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue Did Respondent, William D. Going, willfully and intentionally violate Florida Statutes and Southwest Florida Water Management District (District) rules regulating well construction? If he did, what corrective action is appropriate?
Findings Of Fact William Going is a licensed water well contractor. He has held License Number 1564 since 2007. Mr. Going is a managing member of Going Irrigation, Inc., and conducts business under that name. Mr. Going constructed four sand point irrigation wells at a residential property in St. Petersburg, Florida. He did not have and had not applied for a Well Construction Permit (WCP). 1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise. 2 The findings are based upon the evidence admitted at the hearing and the stipulations of the parties. Mr. Going did not call or otherwise contact the District to request a WCP. The District operates an online permitting system called the Water Management Information System (WMIS). The District will issue a WCP based upon a telephone call, an application on its website, a faxed application, a mailed application, or a hand-delivered application. The District routinely issues permits within two hours of receiving an application, often within ten minutes to half an hour. The District's application system operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours. While quick, the process reviews significant information. It verifies that the well location is sufficiently distant from septic systems, verifies construction methods and materials, and verifies, if the well is for drinking water, that the well is not too close to a contamination site. Mr. Going is a registered and experienced user of WMIS. The District learned of the unpermitted wells on April 28, 2020, when it received an anonymous complaint. On May 5, 2020, approximately ten days after he constructed the wells, Mr. Going submitted WCP Application 889173 for construction of the four already completed sand point irrigation wells. He did not disclose that they were already completed. He falsely represented them as proposed. The District approved the application on May 6, 2020, and issued WCP 889173 to Mr. Going. On June 11, 2020, Mr. Going submitted four Well Completion Reports for the wells, falsely representing that each was completed on May 7, 2020. This was more than 30 days after Mr. Going completed the wells. Mr. Going claimed at the hearing that he tried to apply for a WCP for four or five days before constructing the wells but was locked out of the WMIS. Mr. Going said that his son usually obtained permits online for the company. He also claimed that he tried to apply online on April 24 and 25, 2019. His claims are not persuasive. There is no question that Mr. Going knew the requirements for obtaining a permit and reporting completion. In 2009, in Order No. SWF 09- 017, the District imposed a $500.00 fine and assessed five points against his license for an almost identical offense. In that case, Mr. Going also constructed a well without a permit from the District or applying for a permit. In that case, like this one, he sought to excuse failure to apply for a permit by claiming difficulties with the website. In that case he blamed his wife's unfamiliarity with computers, rather than his own, for failure to apply. In that case, like this one, he applied for and obtained a permit after constructing the well. Mr. Going knowingly and willfully constructed four unpermitted wells, filed a WCP application more than thirty days after he completed the wells, and misrepresented the dates of completion in the WCP completion reports that he filed with the District. Mr. Going tries to characterize his after-the-fact misrepresentations as mitigation. But they were not. Mitigation would have been contacting the District to advise it of the wells' unpermitted construction and the asserted justification for it. Furthermore, his misrepresentations deprived the District of the chance to prevent construction of the wells using improper materials or near a septic tank or contaminated location.
