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 Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The issue in this case is whether the comprehensive plan amendment adopted by the City of St. Augustine Beach on April 3, 1995, through enactment of Ordinance Number 95-5 is in compliance pursuant to Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact On April 3, 1995, the City adopted the amendment by Ordinance Number 95-5, and submitted it to the Department for review pursuant to Section 163.3184(7), Florida Statutes. On July 15, 1995, the Department issued a notice of intent to find the amendment in compliance. By August 7, 1995, all Petitioners had timely filed their challenges to the amendment's adoption by the City. On October 3, 1995, Intervenor was granted leave to intervene and its motion to expedite these proceedings was granted. The Department is the state land planning agency charged with responsibility for review of comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Petitioners reside in the City of St. Augustine Beach, St. Johns County, Florida. All Petitioners own property adjacent to or within close proximity to the parcel which is the subject of the amendment. The parties stipulate that each Petitioner is an "affected person" as defined by Section 163.3184(1)(a), Florida Statutes, and that each Petitioner presented oral and written objections and comments at the public hearings held on the amendment. The City is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Florida Statutes. The amendment to the City's Future Land Use Map (FLUM) which is the subject of this proceeding involves a parcel of land approximately .11 of an acre in size. Located on the north side of "A" Street which runs between Highway AIA (Beach Boulevard) and the Atlantic Ocean, the parcel adjoins the western boundary of an existing parking lot for a restaurant called the Beachcomber. In the short distance between Highway AIA and the the restaurant are duplexes and apartments, inclusive of a parking lot. There is a residence on the subject parcel at present. The Beachcomber was built before the comprehensive plan's adoption by the City and was designated on the FLUM as commercial in 1993. The amendment would change the designation of the parcel on which the residence is located from Medium Density Residential to Commercial Use, subject to conditions. The purpose for the designation change is to permit Intervenor, owner of the Beachcomber and purchaser of the parcel, to demolish the residence and use the parcel for an additional eight spaces of restaurant parking. The amendment is a small scale amendment pursuant to Section 163.3187, Florida Statutes. It is the position of Petitioners that the amendment is inconsistent with a policy on buffers contained at L.1.3.3, page AB-4 of the City's Comprehensive Plan (Plan). The policy states the following: For future development the City shall include in the land development regulations the require- ment for a 15 foot vegetative buffer between noncompatible uses such as between commercial and residential land uses. The amendment is silent with regard to buffers. The intervenor is required by the amendment to comply with all applicable land development regulations. A proposed site plan of Intervenor reveals buffers of 10 instead of 15 feet, but the Intervenor has not yet sought site plan approval. Petitioners also maintain that the amendment's change in designation of the parcel from medium density residential to commercial property subject to restrictions constitutes an inconsistency with the Plan. Policy L.1.3.5., states "[c]ommercial development shall not be allowed in areas designated as residential on the Future Land Use Map." As established by testimony of the Department's planning expert, Carol Collins, the amendment is a small expansion of "the existing commercial use." The expansion was viewed by Collins as intended to replace a parking area in front of the Beachcomber that was lost through erosion. She opined that "you can make a reasonable case for finding this amendment in compliance." While the amendment may be considered inconsistent with one policy (Policy L.1.3.5.) of the Plan, in the opinion of Collins, the amendment is in compliance with the Plan as a whole. Craig Thompson, certified planner and architect with an established expertise in comprehensive planning, opined at the final hearing that certain aspects of the Plan are furthered by the amendment. Specifically, the amendment supports the goal of encouraging tourism and addressing commercial needs beneficial to residents and tourists alike by providing parking for automobiles of Beachcomber patrons otherwise parked on the street. Further, although the Beachcomber is a grandfathered commercial use in a residential area, the enhanced parking will not be so great as to enlarge the commercial activity at the restaurant. The Plan sets forth a growth management strategy on page L15 which recognizes the potential for future rezoning of parcels from residential to commercial and notes that such rezonings "should be restricted, consolidating areas where possible." As noted by Thompson's testimony, the use of property immediately behind the Beachcomber site for parking is consistent with the Plan's intent that commercial rezonings should be consolidated. The amendment specifically states that the use of the parcel is restricted solely to parking of vehicles "or, if approved by Conditional Use Permit, residential purposes." Although designated as commercial by the amendment, expanded commercial development on the parcel, i.e., an expansion of the restaurant itself, is not authorized or contemplated. Petitioners provided no independent testimony that fears of property devaluation of their nearby residences will be realized as a result of parking activity on the parcel. Other Petitioner concerns of after hours activity in the parking lot should be alleviated by the plans of Intervenor to strictly police the parking area and enforce its use for patron parking only, including closure of the lot when the Beachcomber is not open. Petitioners' claim that the necessity for redesignation of the parcel is mooted in view of the future renourishment of the beach, as contemplated by the U.S. Army Corps of Engineers and documented by a letter dated after adoption of the amendment. However, the contemplation of such future beach renourishment fails to establish that Beachcomber Restaurant parking would be permitted on the renourished beachfront. The Plan, as amended, is in compliance with the regional plan and the state comprehensive plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the amendment to be in compliance. DONE and ENTERED in Tallahassee, Florida, this 14th day of December, 1995. DON W. DAVIS 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 14th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3885GM, 95-3886GM & 95-4027GM. In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioners' Proposed Findings (Petitioners' proposed findings were numbered 13-69.) 13.-14. Accepted. Rejected, unnecessary. Incorporated by reference. Accepted with the addition of "subject to conditions" following the word "commercial" at the end of the 2nd sentence. 18.-21. Rejected as redundant, cumulative and subordinate to HO findings. 22.-23. Incorporated by reference. 24.-29. Rejected, subordinate to HO findings. 30.-33. Incorporated by reference. Rejected, conclusionary, subject to reasonable debate. Rejected, subordinate. Rejected, unnecessary. Incorporated by reference. 38.-39. Rejected, out of context quotation, argumentative, subordinate to HO findings. 40.-42. Rejected, subordinate to HO findings. 43. Adopted. 44.-46. Rejected, not materially dispositive. Rejected, materially, occurred after amendment adoption. Rejected, speculative. Rejected, unnecessary. Rejected, subordinate to HO findings. Incorporated by reference. Rejected, unnecessary. Rejected, credibility. 54.-55. Rejected, relevancy. 56. Incorporated by reference. 57.-58. Rejected, relevancy, subordinate to HO findings. 59. Rejected, conclusion of law. 60.-63. Rejected, relevancy, subordinate to HO findings. 64.-65. Adopted, not verbatim. 66.-67. Rejected, unnecessary. 68.-69. Rejected, argument, subordinate to HO findings. Respondent Department's Proposed Findings (Respondent Department's proposed findings were numbered 5-21.) 5.-12. Adopted, not verbatim. 13.-14. Rejected, relevancy, legal conclusion. 15.-18. Adopted, not verbatim. 19. Rejected, argument, no record citation. 20.-21. Incorporated by reference. Intervenor's Proposed Findings 1.-4. Adopted, not verbatim. 5.-15. Incorporated by reference. Rejected, conclusion. Adopted, not verbatim. Rejected, conclusion. Adopted, not verbatim. Incorporated by reference. 21.-23. Rejected, argument. 24. Adopted, not verbatim. 25.-26. Incorporated by reference. 27.-29. Incorporated by reference. COPIES FURNISHED: Terrell K. Arline, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Geoffrey B. Dobson, Esquire 66 Cuna Street, Suite B St. Augustine Beach, FL 32084 Mr. and Mrs. Joseph F. Peacock 6 "A" Street St. Augustine Beach, FL 32084 Mr. and Mrs. Matthew Braly Three First Lane St. Augustine Beach, FL 32084 Mr. and Mrs. Ralph Morris One First Lane St. Augustine Beach, FL 32084 George M. McClure, Esquire O. Box 3504 St. Augustine, FL 32085-3504 James F. Murley, Secretary Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan Stengle, General Counsel Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue in the case is whether the Town of Beverly Beach's Comprehensive Plan Amendment 03-1, initially adopted by Ordinance 2003-ORD-6 and amended by Ordinance 2004-ORD-6, is "in compliance," as required by Section 163.3184, Florida Statutes (2004).
Findings Of Fact The Department is the state land planning agency and has authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2004). One of the Department's duties under the Act is to review proposed amendments to local government comprehensive plans to determine whether the amendments are in compliance with the Act. The Town of Beverly Beach is a small municipality in Flagler County, Florida, and has the duty and authority to adopt a local government comprehensive plan pursuant to Chapter 163, Florida Statutes (2004), and to amend the plan from time to time. In June 2002, the Town proposed to amend its Future Land Use Map (FLUM) to change some of the land uses within the 37-acre Shelter Cove Planned Unit Development (PUD). The Shelter Cove PUD was the subject of an earlier lawsuit in the circuit court for Flagler County brought by the owners and developers of the property after the Town denied their PUD application. In 2002, the court entered judgment against the Town and ordered the Town to approve the PUD application. In its order, the court included a statement that the Shelter Cove PUD was consistent with the Beverly Beach Comprehensive Plan. The purpose of the plan amendment proposed in June 2002 was to re-designate 14.25 acres from Conservation/Spoil Area to Low Density Residential, 0.75 acres of Conservation/Spoil Area to Medium Density Residential, and 8.25 acres of Low Density Residential to Medium Density Residential. The proposed amendment was transmitted to the Department for compliance review. In its July 2003 ORC Report, the Department set forth four objections to the proposed amendment: 1) increased density in a Coastal High Hazard Area; 2) no traffic impact analysis regarding emergency evacuation; 3) inadequate potable water and sanitary sewer services; and 4) unsuitability for development because of saltwater marsh and potential use by threatened and endangered animal species. The Town made changes to the proposed amendment to address the Department's objections and adopted Plan Amendment 03-1 on October 6, 2003. One significant change made by the Town was to reduce the size of the land affected by the amendment from 23.25 acres to 14.5 acres. The stated purpose of the revised amendment was to deal exclusively with the spoil areas within the Shelter Cove PUD; to convert them from Conservation to Low Density Residential. The Department was not satisfied with the changes made by the Town and on November 17, 2003, it issued a Statement of Intent To Find The Comprehensive Plan Amendment Not In Compliance. This statement did not reassert the four objections of the ORC Report, but identified only two reasons for its determination that Plan Amendment 03-1 was not in compliance: 1) increased density in a Coastal High Hazard Area that would increase evacuation clearance times and 2) inadequate sanitary sewer facilities based on the denial of the utility's permit renewal by the Department of Environmental Protection (DEP). The Department recommended remedial actions that would bring Plan Amendment 03-1 into compliance. Thereafter, the Department and Town entered into a compliance agreement to identify remedial actions by the Town that would bring the plan amendment into compliance. Pursuant to the agreement, the Town adopted remedial measures in Ordinance 2004-ORD-6 (the Remedial Ordinance) that caused the Department to determine that the plan amendment was in compliance. The Remedial Ordinance (with additions and deletions as indicated in the ordinance) states in pertinent part: Limiting Density on the 14.5-acre amendment site & Hurricane Evacuation Plan Future Land Use Element: contains policies controlling the density and intensity of development (both residential and non- residential) in the Town of Beverly Beach. Policy A.1.1.9 The Low Density Residential (LDR) land use (up to 5 dwelling units/acre) shall be applied to 14.5 acres of upland spoil sites in the Shelter Cove development as shown in Exhibit A, not to exceed a total gross density of 28 residential units. In addition to the provisions described in Policy 1.1.4, the following provisions shall apply to the Shelter Cove Development: Residential land use for the Shelter Cove Planned Unit Development(PUD)shall be limited to a maximum of 115 dwelling units. The Town of Beverly Beach shall not issue a permit or certificate of occupancy until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code (see Policy A.1.1.1). * * * Policy A.1.1.10 No later than December 2005, Beverly Beach shall revise its comprehensive plan to update the goals, objectives and policies and future land use map series and transmit such revisions to the Department of Community Affairs. The updated plan shall reflect changes to Chapter 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code, since the plan went into effect in 1991. This revision shall be based on a planning period through Year 2015, with current and forecasted conditions and satisfy data and analysis requirements. * * * Revise policies under Objective D.2.1, Beverly Beach Comprehensive Plan regarding the provision of potable water and sanitary sewer Public Infrastructure/Facilities Element: refers to the protection of water quality by specific policies that require deficiencies in wastewater treatment facilities be corrected in accordance with DEP requirements. Objective D.2.1 By December 31, 1992 December 31, 2005, the Town shall require that existing deficiencies in the wastewater treatment package plants owned by Surfside Utilities operated by Ocean City Utilities be corrected in accordance with FDER Department of Environmental Protection [DEP] requirements. Policy D.2.1.1 As the Town does not own the wastewater treatment plants nor has operational control over the same, the Town shall formalize a coordination committee to include the owner/operator of Surfside Utilities Ocean City Utilities, the members of the Town Commission, members of the Flagler County Board of County Commissioners or their appointee, members of the City of Flagler Beach Commission or their appointee, and FDER the Department of Environmental Protection [DEP] and any other identified stakeholder in the Town. Policy D.2.1.2 The Town shall use the coordination committee to address the deficiencies in the wastewater plants, to set priorities for upgrading and replacing components of the plants, and to request FDER the Department of Environmental Protection [DEP]to increase and enforce their regulations requiring periodic monitoring and maintenance of package treatment plants. Policy D.1.2.3 The Town shall use the coordination committee to investigate the feasibility of assuming operational responsibility of the wastewater treatment system by another entity. Applying the five dwelling units per acre density allowed in the Low Density Residential category to 14.5 acres would generate 72.5 units. However, as indicated above, the Remedial Ordinance also restricted the total allowable dwelling units in the 14.5 acres to 28 units. The 28 units coincide with the site plan for the Shelter Cove PUD that was the subject of the circuit court judgment. The site plan called for 28 single- family lots in the former spoil areas. Charles Osbourne, Bernard Knight, and Mary Jo Knight were residents of the Town of Beverly Beach when the Town adopted Plan Amendment 03-1. They intervened against the Town in the original proceedings initiated by the Department. Following the Department's determination that the plan amendment had been brought into compliance by the Remedial Ordinance, they filed an Amended Petition to Intervene and were realigned as the Petitioners. On some date between the filing of their original petition in this case and the date of the final hearing, Petitioners Bernard Knight and Mary Jo Knight moved out of Beverly Beach. They are no longer residents of the Town. In their Amended Petition to Intervene, the Petitioners assert that the Remedial Ordinance did not resolve all the problems originally identified by the Department's ORC Report, and Plan Amendment 03-1 is still not in compliance. The Petitioners' objections to the amendment fall into three categories: insufficient and inaccurate data and analysis, insufficient legal description for the lands affected by the plan amendment, and inadequate wastewater services available for the increased density resulting from the amendment. These three categories will be used to organize the findings of fact that follow. Data and Analysis/Maps The Petitioners assert that the maps used for Plan Amendment 03-1 and the Remedial Amendment are not the official maps currently contained in the Beverly Beach Comprehensive Plan. They contend the unofficial maps contained errors that caused some of the area designated as Conservation/Saltwater Marsh to be included in the 14.5 acres re-designated Low Density Residential. At the hearing, the Petitioners also attempted to show that maps used by the Town with Plan Amendment 03-1 were not consistent with the Beverly Beach FLUM with regard to the depiction of saltwater marsh areas outside the 14.5 acres affected by the plan amendment. Whether such discrepancies exist is not a relevant inquiry for determining whether Plan Amendment 03-1 is in compliance. A 1997 report regarding threatened and endangered animal species, prepared by Lotspeich and Associates for the developer of the Shelter Cove PUD, includes a statement that there are 10.3 acres of spoil on the 37-acre PUD site. That figure is inconsistent with the Town's claim that the lands affected by Plan Amendment 03-1 consist of 14.5 acres of spoil. Lindsay Haga, a regional planner with the Northeast Florida Regional Planning Council (Council), made the determination that there are 14.5 acres of spoil area. Because the Town does not have a professional planning staff, the Council was providing planning services to the Town under contract. Ms. Haga worked on Plan Amendment 03-1 on behalf of the Town. Ms. Haga obtained a mapping of the land uses within the Shelter Cove PUD from information maintained by the St. Johns River Water Management District (District). The land use categories are based on the Future Land Use Classification Categorization System, and were applied by the District using aerial photography. Using professional software called "ArcView," Ms. Haga derived the size of the various land uses mapped within the Shelter Cove PUD by the District. The software calculated the size of the spoil areas as 14.5 acres. According to Ms. Haga, planners use this method "100 percent" of the time to delineate land uses on future land use maps. Ms. Haga was called as a witness by the Petitioners and by Beverly Beach and testified at length on direct and cross-examination on how she determined the size of the spoil areas. Nevertheless, some ambiguity remains as to whether the size and position of the spoil areas designated in the official Town FLUM are the same as their size and position as delineated by Ms. Haga for Plan Amendment 03-1 using information from the St Johns River Water Management District. The Town and the Department seem to suggest in their joint post-hearing submittal that the size and position of the spoil areas on the FLUM can be "cleaned up" or re-drawn using more site-specific information presented at the final hearing. The implication is that, if the Town's FLUM delineated less than 14.5 acres as Conservation/Spoil Area, but better data is presented at the hearing to show that the spoil areas actually cover 14.5 acres, the FLUM delineation can be ignored or treated as if did cover 14.5 acres. The redrawing of land uses as they are depicted on an adopted FLUM is arguably beyond the authority granted to the Department in Chapter 163. That issue need not be decided on this record, however, because the more credible and persuasive evidence shows there were no material changes to the size and position of the spoil areas in Plan Amendment 03-1, and no saltwater marsh was re-designated as Low Density Residential. Data and Analysis/Topographic Information The Petitioners assert that topographic data used by the Town was flawed and did not accurately reflect that much of the Shelter Cove PUD is within the 100-year floodplain. For example, the June 2002 Transmittal Packet sent to the Department included a statement that, "According to FEMA the 100 year floodplain is confined to the saltwater marsh areas located adjacent to the Intracoastal Waterway." At the hearing, the Town admitted that some of topographic information was inaccurate and described it as a "scrivener's error." The parties stipulated to the introduction into evidence of topographic information that indicates a portion of the 14.5 acres affected by Plan Amendment 03-1 lies within the 100-year floodplain. The Petitioners have not shown how the inclusion of inaccurate topographic in the data and analysis causes Plan Amendment 03-1 to be not in compliance; or, put another way, the Petitioners have not shown how the accurate topographic information proves Plan Amendment 03-1 will be inconsistent with the Beverly Beach Comprehensive Plan or applicable state laws and regulations. The Beverly Beach Comprehensive Plan does not prohibit Low Density Residential uses in the 100-year floodplain. Data and Analysis/Clustering The Petitioners contend that the data and analysis was flawed because it included a reference to the possibility of clustering dwelling units to avoid adverse impacts to areas unsuitable for development, but the Town has no regulations that allow for or address clustering. Neither the Amended Petition to Intervene nor the evidence presented by the Petitioners makes clear how this alleged error causes Plan Amendment 03-1 to be not in compliance. Any alleged error must relate to the 14.5 acres affected by the amendment. The Petitioners did not show that clustering of dwelling units is planned or necessary on the 14.5 acres. Data and Analysis/Scrub Jays The Petitioners contend that the data and analysis is insufficient because it fails to describe and account for the current use of the site by the Florida scrub jay, a bird listed as threatened by the Florida Fish and Wildlife Conservation Commission and the United States Fish and Wildlife Service. The Town and Department stipulated that scrub jays have been seen on the property. Charles Osbourne and Gail Duggins, a birdwatcher, testified that they have seen scrub jays in the Shelter Cove PUD area on several occasions. They marked Petitioners' Exhibit 15 to indicate eight specific sites within the PUD where they had observed scrub jays. None of the marked sites are located on the 14.5 acres affected by Plan Amendment 03-1. Lotspeich and Associates conducted a scrub jay survey on the 37-acre Shelter Cove PUD in 1997. They observed no scrub jays on the 14.5 acres that will be affected by Plan Amendment 03-1. In the written report of the survey, Lotspeich and Associates concluded that, "no jays reside on-site nor did any birds react as though they were defending territory which extended onto the property." Following a second survey in 2002, Lotspeich and Associates reached the same conclusion that the property "is unlikely to support a resident Florida scrub jay population." The observations of scrub jays made by Mr. Osbourne and Ms. Duggins do not contradict the conclusions of the Lotspeich and Associates reports. Mr. Osbourne and Ms. Duggins did not offer an opinion (and no foundation was laid for their competence to offer such an opinion) that scrub jays reside on the 14.5 acres affected by Plan Amendment 03-1. The Department's ORC Report stated that the originally-proposed amendment was not consistent with Policy E 1.4.3 of the Town's comprehensive plan which calls for the Town to obtain information from appropriate agencies concerning the known locations of listed plant and animal species. The Department recommended in the ORC Report that the Town conduct a survey for gopher tortoises and other listed species. The Department's objection about listed species, however, was not included its subsequent Statement of Intent to Find The Comprehensive Plan Amendment Not in Compliance. The Town had available to it, as part of the data and analysis to support Plan Amendment 03-1 and the Remedial Amendment, the Lotspeich and Associates reports prepared for the United States Fish and Wildlife Service. The reports convey the results of Lotspeich and Associates' surveys of the Shelter Cove PUD property for gopher tortoises, scrub jays and other listed species. It is likely to be the best information available since it is a site-specific, scientific study. The Petitioners did not show that better data were available or that the Lotspeich and Associates reports are flawed. In fact, the Lotspeich and Associates reports were exhibits offered by the Petitioners. Policy E.1.4.3 of the Beverly Beach Comprehensive Plan directs the Town to adopt land development regulations that provide protections for known listed species. Land development regulations are the usual and appropriate tools for applying specific protective measures to specific development proposals. No regulations have yet been adopted by the Town to protect listed species. Listed species are not left unprotected from development activities in the Town, however, since there are both state and federal laws to protect listed species and their habitats. Data and Analysis/Beach Access The Petitioners contend that the data and analysis was insufficient because it indicated that there are five locations in the Town where the public can gain access to the beach, but the Petitioners allege there are only two public beach walkovers that qualify under the Beverly Beach Comprehensive Plan. The beach access issue relates to the Town's recreational level of service standard adopted in the Recreation and Open Space Element of the Beverly Beach Comprehensive Plan. Policy F.1.1.1 specifies that the adopted level of service standard is "Five publicly-owned beach access facilities." The Petitioners apparently believe that the easements acquired by the Town that provide for public beach access across private property do not qualify as publicly-owned beach access facilities as contemplated by the Beverly Beach Comprehensive Plan. The term "publicly-owned beach access facilities" is not defined in the Recreation and Open Space Element, but one can find a statement at page F-2 that, "Access points and parking areas are support facilities for public owned beaches." Therefore, the Town considers an access point, without any man- made structures, to be a "facility." Furthermore, the comprehensive plan, itself, includes a map that depicts the location of the five public beach access points. It must be assumed that these access points met the Town's intent and meaning. By raising the issue of whether the data and analysis for Plan Amendment 03-1 is accurate in referring to the existence of five public beach access points, the Petitioners are collaterally attacking the existing comprehensive plan. Stephen Emmett, the mayor of Beverly Beach, stated that the five public beach access points depicted in the Beverly Beach Comprehensive Plan, as well as a new sixth beach access point, are currently maintained by the Town. Description of the Land Affected The Petitioners alleged in their Amended Petition to Intervene that the Town did not have an adequate legal description for the lands affected by the plan amendment. The issue was not raised in the Petitioners' Pre-Hearing Statement. When the Department objected to the Petitioners' presentation of evidence on this issue because it was not raised in their Pre- Hearing Statement, the Petitioners voluntarily withdrew the issue. Sanitary Sewer Services The Petitioners contend that sanitary sewer services are not adequate for the increased residential density that would result from Plan Amendment 03-1. The Beverly Beach Wastewater Treatment Facility is operated by Ocean City Utilities. Ocean City's application to renew the permit for the facility was denied by DEP in September 2003 because the facility was not in compliance with several DEP regulations. As a result of the denial of Ocean City's permit renewal application, DEP would not allow new customers to connect to the Beverly Beach Wastewater Treatment Facility, including the Shelter Cove PUD. DEP subsequently approved the connection of the Shelter Cove PUD wastewater collection system to the Beverly Beach Wastewater Treatment Facility. Permitting problems associated with the treatment plant was one reason for the Department's objection to the originally proposed plan amendment and the Department's subsequent determination that Plan Amendment 03-1 was not in compliance. No evidence was presented to show that Ocean City Utilities has corrected the deficiencies in the wastewater treatment plant or has obtained a renewal permit from DEP. Nevertheless, the Department determined that Plan Amendment 03-1 is in compliance based on the changes to the Beverly Beach Comprehensive Plan called for in the compliance agreement and adopted in the Remedial Ordinance. Objective D.2.1 of the Beverly Beach Comprehensive Plan was amended to require that existing deficiencies in the wastewater treatment plant be corrected by December 31, 2005. Policies D.2.1.1, D.2.1.2, D.2.1.3 were amended to re-constitute and re-energize a coordination committee to address the deficiencies in the wastewater plant and the feasibility of giving operational responsibility to another entity (such as Flagler County). In addition, the Remedial Ordinance amended Policy A.1.19 of the Beverly Beach Comprehensive Plan to prohibit the Town from issuing a permit or certificate of occupancy for the Shelter Cove PUD "until the Building Official certifies the required public facilities and services will be provided consistent with Chapter 9J-5, Florida Administrative Code." No dispute was raised about the available capacity of the Beverly Beach Wastewater Treatment Facility to serve the Shelter Cove PUD.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Town of Beverly Beach Plan Amendment 03-1, and Remedial Ordinance 2004-ORD-6, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes (2004). DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2005. COPIES FURNISHED: Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Box 3007 St. Augustine, Florida 32085-3007 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Thaddeus Cohen, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Heidi Hughes, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue Whether the Petitioners, and each of them, have standing to bring the instant action before the Division of Administrative Hearings. Whether the 5500 North Corporation has meets the requirements set forth in Section 161.053, Florida Statutes, and Rule 16B-33, Florida Administrative Code, for obtaining a permit to construct a structure seaward to the coastal construction control line (CCCL).
Findings Of Fact The Department of Environmental Protection, f/k/a Department of Natural Resources, is the state agency charged with the responsibility of regulating coastal construction under Chapter 161, Florida Statutes. 5500 North Corporation (Respondent/Applicant) is the owner of the property located at 5600 North Atlantic Avenue, Cocoa Beach, Brevard County, Florida 32931. 5500 North Corporation submitted an application for a coastal construction control line (CCCL) permit to build on the vacant portion of its property, a seven (7) story building, along with required access drives and parking, as an addition to the Cocoa Beach Days Inn Hotel complex. The site of the proposed Days Inn Tower fronts on the Atlantic Ocean and is located three (3) miles south of Port Canaveral, near DNR survey monument R-16. The application and attached document were compiled and submitted to the Department of Environmental Protection by Plata Engineering, Inc., and consisted of the following documents: Application to the Department for the proposed construction of the building, consisting of three pages, front and back, six pages total. A legal description of the property, and a Warranty Deed for the property demonstrating ownership in 5500 North Corporation. Reduced certified survey of the site, showing control lines and other required information. Reduced Site Plan prepared by Plata Engineering, Inc. Section C - which is a section through the site plan, showing the dune configuration in relation to the proposed building and the construction control lines. A depiction of a section through the proposed building and some of its structural elements. Full size drawing of the proposed site. Turtle assessments form with attached lighting specifications of the manufacturer, and aerial of the site attached. Structural Design Calculations. Complete set of Building Plans, dealing with floor planning, and the structural elements of the calculations that were submitted with the structural calculations. The application was deemed complete, and on May 20, 1993, the Department issued a proposed Final Order issuing Permit Number BE-760 for the proposed structure. Standing of Petitioners Petitioner, Carole Pope, resides in the City of Rockledge, Brevard County, Florida. She is the owner of Lot 11, Block 101 of the platted subdivision known as Avon-By-The Sea which is located in unincorporated Brevard County, north of the existing north boundary of the City of Cocoa Beach. A duplex dwelling unit is located on the parcel. Petitioner occupies one unit annually during the summer. Petitioner Pope's property is not adjacent to the property where the proposed Days Inn Tower is to be located. The property is located approximately three blocks directly north of the proposed building and measures 475 feet east- west by 50 feet north-south and is bounded on the east by the Atlantic Ocean. Petitioners, Hugh and Cora Harris, own property located at Lot 13 of replat of Blocks 104 and 105, Avon-by-the Sea, in the unincorporated land of Brevard County, which borders on the City of Cocoa Beach. Petitioners' property is located across Young Avenue, and north of the property owned by 5500 North Corporation. The Harris's property contains a single family dwelling unit and is adjacent to the property were the proposed Days Inn Tower is to be located. Petitioners, Patricia A. and Eugene A. Wojewoda, own a unit at the Cocoa Beach Towers, a multi-family condominium, which is located north of the property owned by 5500 North Corporation, across Young Avenue, in the City of Cocoa Beach. The Wojewoda's unit is located on property which is adjacent to the property where the proposed Days Inn Tower is to located. Petitioners Wojewodas are Real Estate Brokers and owners of Professional Touch Realty, Inc. One of their four offices is located at 108 Young Avenue, immediately across the street and north of the subject property. Petitioners, Howard and Martha Crusey, own a unit, which they rent out, in the Cocoa Beach Towers, which is located north and adjacent to the property owned by 5500 North Corporation. Petitioners reside at 430 Johnson Avenue in Cape Canaveral, Florida. The Department sent out a notice for public comment to each of the immediate adjacent property owners. Existing Uniform and Continuous Line of Construction As part of the application process, the Department made a determination of the existing line of uniform and continuous construction. The existing line of uniform and continuous construction is a theoretical line that goes from the most seaward extent of the two adjacent structures, where adjacent structures exist, and extends north and south along the seaward edge of the structures. In the instant case, there is historical development of major habitable structures on either side of the parcel for which the proposed building is being constructed and which are co-terminus with the prior CCCL. The footprint of the proposed Days Inn Tower does not extend seaward of the existing uniform and continuous line of construction, although a new structure (Discovery Beach) north of the Cocoa Beach Towers has been constructed landward of the current CCCL. The existing structures, which form the existing line of uniform and continuous construction, have not been unduly affected by erosion. The property was purchased by 5500 North Corporation in 1988. The property was commercially developed with the existing hotel buildings between 1959 and 1962, and the site has been operated as a hotel since that time. The footprint of the building was set by the engineers based on the parking requirements of the City of Cocoa Beach, and environmental concerns. It was determined that if the parking were located on the seaward side of the building, there would be drainage problems, and the need for a storm water treatment system for the parking lot. With the parking lot located landward of the proposed building, there will be no drain off to the side areas, but rather drain off would be to the middle of the property where the exfiltration system is located. The parking lot located landward of the proposed building meets the City of Cocoa Beach parking requirements and the drainage requirements. When siting the footprint of the proposed building, the engineers also took into consideration the fact that if the parking were located on the seaward side of the proposed building, the headlights would shine out to the beach and possibly impact sea turtles nesting. The applicants stated that construction seaward of the control line or 50-foot setback is considered necessary for reasonable use of the property, for the following reasons: The proposed building is basically an addition to a completion of the original concept of the overall hotel complex that was never completed in the past due to either financial or room availability need. The proposed placement seaward of the CCCL can be attributed to the configuration of the existing on-site buildings and the require- ment to satisfy the City of Cocoa Beach's extensive parking and limited access point requirements that have been subjected to this proposed site development. Please note that the proposed building is not being placed seaward of the existing line of continuous construction that has been established by the adjacent buildings to the north and the south. The Department determines necessity based upon the impacts the proposed structure will have on the active beach, and the dune system, and the neighborhood properties including the subject property, how the property is zoned, and whether it is situated behind the existing continuous line of construction. It is the Department's opinion that if the proposed building is in compliance with the standards established in Chapter 16B-33, F.A.C., the necessity of the proposed building has been justified. Impacts to the Beach-Dune System The greater weight of evidence supports the conclusion that the shoreline fronting the site of the proposed Days Inn Tower is stable. This section of the coastline has historically been accretional, and still continues to be accretional. There exists adequate evidence of current littoral trends. There exists accepted methodologies for determining evidence of expected wind, wave, hydrostatic and hydrodynamic forces associated with the design storm event which was presented in 5500 North Corporation's application for CCCL permit. Based on the 1989 Brevard County Study conducted by Olsen and Associates, Inc., there is no erosion at the location of the proposed building, instead the shoreline is prograding seaward instead of landward. Therefore, the shoreline is at least stable or accretional. Based on its in-house analysis, the Department of Environmental Protection conservatively adopted an erosion rate of one foot per year, which is considered a relatively minor erosion rate. Based on the Department of Environmental Protection's projection of the erosion for the area being one foot per year, the location of the proposed building lies well in excess of 200 feet landward of the thirty-year seasonal high water line. Although the proposed structure extends 118 feet seaward of the CCCL, the setback of the proposed building from the existing dune line is significant; therefore, there was no evidence of a threat of impact on the beach, to the beach or dune system as a result of the construction at the specific site. There are existing devices (i.e., an existing fence on the property which funnels people into boardwalks so that people cannot walk uncontrolled on the beach dune system) implemented in Brevard County and specifically on the site which will help manage people impacts as well. The setback between the dune and the proposed construction qualitatively relates to the ability of the site to recover after a one-hundred year storm. If a structure is located too far seaward, either immediately adjacent to or on top of the dune, it would inhibit the natural storm recovery process. The proposed building is set a significant distance landward of the dune formation itself, so there will be adequate room for the dune to recover in the future should there be a one-hundred year storm event. The proposed structure is located at a sufficient distance landward of the beach-dune system to permit natural shoreline fluctuations and to preserve the dune stability and the natural recovery following storm induced erosion. The proposed construction will not have a cumulative impact that will threaten the beach or dune system or its recovery potential following a major storm event. low. Impacts to Adjacent Property Owners The probability of potential impacts to adjacent property owners is One reason the proposed building will not have adverse impacts to adjacent properties is that the proposed building is located significantly landward, and does not go further seaward than the existing line of construction. The adjacent buildings were constructed landward of the previous CCCL. The nature of the design associated with the particular project or the structural components of the design also minimize the impact to the parcel and to adjacent parcels. The first feature of the design of the proposed building is that the major habitable floors of the building are above the elevation of the one- hundred year storm and wave activity on top of the storm surge, so they will not be impacted by the water height or the wave activity of the storm. The second feature of the design of the proposed building is that everything below the habitable floors is designed to break away and lie down during any impact by wave activity, which allows the storm to go through the building rather than having those forces exerted on the building itself. The frangible driveway is designed so that the individual stones will fall as the grade falls, and most of them will end up buried in the event of a storm. The third feature of the design of the proposed building is that the building is elevated on a pile foundation which is sunk to a depth which is sufficient to accommodate for the anticipated erosion of a one-hundred year storm, and the pile caps are sunk well into the ground so that they do not contribute to erosion. Therefore, the building has been designed to withstand the one-hundred year storm, and the dynamics of the storm are allowed to go through the building and to be dissipated, in contrast to endangering the building or endangering adjacent properties. Due to the fact that the proposed building is "super-elevated and the portions that are actually impacted by the one-hundred year storm being frangible," the proposed building will not impact the adjacent properties. The proposed Days Inn Tower would serve to protect the adjacent Cocoa Beach Towers, and Petitioner Harris's property, by blocking the impact of a storm coming from the southeast. The proposed structure is designed so as to minimize any expected adverse impact on the beach dune system or adjacent properties or structures and is designed consistent with Section 16B-33.005, Florida Administrative Code. The proposed building meets the requirements of Chapter 161, Chapter 16B-33, Florida Administrative Code. Structural Design of Proposed Building The applicant provided adequate engineering data to the Department concerning the construction design of the building. The structure is designed in accordance with the minimum building code adopted for the area pursuant to Section 553.70-553.895, Florida Statutes. The proposed building is designed in accordance with the local code, and, in the opinion of the structural engineer who designed the building, either meets or exceeds the required codes. The proposed building is designed in accordance with Section 6, American National Standards/American Society of Civil Engineering 7-88 (July 1990) "Minimum Design Loads for Buildings and Other Structures", and has a minimum basic wind speed of 110 miles per hour. The proposed building is designed so that the building and its components will not become airborne missiles. The plans for the windows and doors require that they meet the 110 miles per hour wind loads. The proposed building is made of concrete reinforced masonry, and does not have bricks or attached masonry which could detach in a storm and become airborne. There are no substantial walls or partitions to be constructed below the level of the first finished floor, except for the elevator and stairs, seaward of the CCCL. The walls on the first floor are frangible walls which are designed to resist the 110 mile per hour wind pressure, but they lie down or collapse into the erosion hole created under wave surge pressure. The frangible walls are made of 4-inch thick concrete with reinforcing rods inside them, and are cut into 4 foot by 4 foot panels. The Department of Environmental Protection requires that any walls constructed below the one-hundred year storm surge plus storm wave elevations be frangible walls. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculation for wave forces on building foundations and building superstructures is based on minimum criteria and methods given in professionally recognized documents accepted by the Bureau of Coastal Engineering and Regulation with the Department. The structural design considered hydrostatic loads which would be expected under the conditions of maximum water height associated with a one- hundred year storm event. The calculations for hydrostatic loads considered the maximum water pressure resulting from a fully peaked, breaking wave superimposed on the design storm surge. Both free and confined hydrostatic loads were considered in the design calculations. Hydrostatic loads which are confined were determined using the maximum elevation to which the confined water would fully rise if unconfined. Vertical hydrostatic loads were considered as forces acting both vertically downward and upward; however, there is no action upward because the maximum water level is at midlevel of the first floor and does not reach the second floor. The structural design considered the hydrodynamic loads which would be expected under the conditions of a one-hundred year storm event. The calculations for hydrodynamic loads considered the maximum water pressure resulting from the motion of the water mass associated with a one- hundred year storm event. Full intensity loading was applied on all structural surfaces above the design grade which would effect the flow velocities, which are above the first floor and are not reached by the wave surge. The proposed building is elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave set up of one-hundred year storm. The piling foundation is designed to withstand anticipated erosion, scour, and loads resulting form a one-hundred year storm, including wind, wave, hydrostatic and hydrodynamic forces, and the pile caps are located below the erosion line as indicated by the Department's information and graphs. The elevation of the soil surface used in the calculation design grade is less than that which would result from the anticipated beach and dune erosion due to the one-hundred year storm event. The erosion calculations for foundation design account for all vertical and lateral erosions and scour producing forces. The pile caps are set below the design grade which includes localized scour, and are designed for the erosion of soil during the one-hundred year storm event. The piles are driven to a penetration which achieves adequate bearing capacity taking into consideration the anticipated loss of soil above the design grade, based on information provided by the geotechnical engineer's recommendation and the Department's requirements. The design plans and specifications submitted as part of the permit application for the proposed Days Inn Tower are in compliance with the standards established in Rules 16B-33, Florida Administrative Code. Turtle Impacts There is a two prong test which the proposed structure must meet to determine if the proposed building would have an adverse impact on nesting sea turtles. First, the proposed structure must not occupy marine turtle habitat, and second, the proposed structure's lighting must be adequate to eliminate adverse impacts to marine turtles. The effects of pedestrian traffic or flashlights on the beach are not considered by the Department when reviewing a permit application for adverse impacts to the marine turtles. The proposed building is sited significantly landward of the nesting beach, which is evidenced by the 75-foot wide dune stretch; therefore, it is not anticipated that the structure will result in any direct mortality of any marine turtle, nor would the building result in the degradation of the marine turtle nesting habitat. The proposed seven story structure will not occupy marine turtle habitat. The permit requirement to do dune restorative work, proposed by the Department, enhances the marine turtle habitat by further building the dune and enhancing the dune. Although the turtles do not nest beyond the dune crest, the dune is an integral part of protecting the habitat. There is a potential that the building, due to its height, could enhance marine turtle nesting habitat by blocking out the ambient glow from the City of Cocoa Beach which would create a dark beach directly in front of the proposed structure which could attract nesting. The applicant submitted a lighting plan to the Department which complied with the guidelines that are established in the information form entitled "Assessment to reduce impacts to marine turtles for lighting to reduce adverse impacts associated with coastal lighting." There are two main components of the lighting plan associated with the proposed building: the parking lot lights and the structural lighting. The parking lot lighting is designed as low-level Ballard-style lighting which is only 48 inches above the grade and emits light in a downward direction which will not be directly visible from the beach. The parking lot lighting design is the type recommended by the Department for parking lots, and is a good lighting design. The Department also recommends that an applicant plant hedges or landscape features to block out parking lights. The applicant is proposing to plant hedges in front of the 18 parking spaces that are on the seaward side of the proposed building. The structural lighting plan does have lighting on the seaward facade of the proposed building, which is not recommended by the Department, but the lights are designed to eliminate or significantly reduce the impact to marine turtles. The lights consist of canister, shielded, down-casting lights on the balconies which house a yellow bug lamp which is less impactive to turtles, and which is acceptable to the Department. The Department issued an approval letter regarding the proposed building to the project engineer which contained permit conditions for the protection of the marine turtles in association with the project. The permit conditions are as follows: No construction, operation, transportation or storage of equipment or materials is authorized seaward of the existing chain link fence located approximately 175 feet seaward of the coastal construction control line. No temporary lighting of the construction area is authorized at any time during the marine turtle nesting season (March 1 through October 31). All permanent exterior lighting shall be installed and maintained as depicted in the approved lighting schematic. No additional permanent exterior lighting is authorized. c All windows and glass doors visible from any point on the beach must be tinted to a transmittance value (light transmission form inside to outside) of 45% or less through the use of tinted glass or window film. Pursuant to the Department's requirements, the proposed construction will not have an adverse impact on nesting sea turtles, their hatchlings, or their habitat. Vegetation Impacts The vegetation patch on the dune system is approximately seventy five feet wide under today's conditions, and is probably growing to some degree. The vegetation system is basically comprised of a low-level dune which is planted both naturally and artificially with indigenous, salt-tolerant type vegetation, and sea oats. The existing line of construction which the proposed building is set behind is well landward of the zone of indigenous vegetation. Special condition #4 contained in the permit issued by the Department requires the applicant to convert some of the existing sodded area between the vegetation limits and the proposed construction to plantings with indigenous vegetation, which will serve to enhance the dune system. The native beach vegetation will be adequately protected by the permit conditions, given the location of the construction. Local Government Approvals On June 3, 1992, the Cocoa Beach Board of Adjustment granted a variance to the CCCL to the 5500 North Corporation for construction of the proposed building. Challenges to decisions of the City's Board of Adjustment is to the circuit court. In the instant case, the time for challenging the decision of the Board has expired. The City of Cocoa Beach Planning Board has the authority to approve site plans for site specific construction. The City's Planning Board has the responsibility of ensuring that the site plan conforms with the Comprehensive Plan and to recommend changes, if needed, to the City Commission. On July 13, 1992, the Cocoa Beach Planning Board voted to approve the site plan for the proposed building submitted by the 5500 North Corporation. The decision of the Planning Board granting approval of the 5500 North Corporation's site plan showed part or all of the building was seaward of the CCCL. The Petitioners did not file an appeal of the Planning Board's decision with the City Commission. Nor did they challenge the Planning Board's action in the circuit court. The 5500 North Corporation was not required to apply to the city commission for an amendment to the Cocoa Beach Comprehensive Plan in order to permit the proposed hotel tower to be located in the designated high hazard area. On July 6, 1993, the Building Official issued a building construction permit to the 5500 North Corporation for the proposed building, which has been subsequently extended for an unknown period of time. There are no other permits or local government requirements which have not been met by 5500 North Corporation. The applicant submitted written evidence to the Department from the City of Cocoa Beach, who has jurisdiction over the project, which stated that the project does not contravene local setback requirements, or zoning and building codes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection issue Permit Number BE-760 to the 5500 North Corporation, subject to the conditions proposed in the proposed Final Order. DONE and ENTERED this 24th day of March, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 24th day of March, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioners' Proposed Findings of Fact Accepted in substance: paragraphs 1 (in part) 2, 3 (in part), 4, 5, 6, 7, 8 (in part), 10, 12 (in part), 13, 16 (in part), 17, 18, 19, 23 (in part), 24 (in part), 26 (in part), 27 (in part), 29 (in part), 31 (in part), 38 (in part), 49, 51, 63, 68 (in part), 69, 70, 71, 73 (in part). Rejected as against the greater weight of evidence: paragraphs 15 (in part), 16 (in part), 27 (in part), 46, 50 (in part), 82 (in part). Rejected as subsumed, argument or Conclusions of law: paragraphs 1 (in part), 14, 15 (in part), 16 (in part), 21, 23 (in part), 25, 26 (in part), 27 (in part), 28, 29 (in part), 30, 31 (in part), 32, 33, 34 (in part), 35, 36, 37 (in part), 38 (in part), 39, 40, 41, 42, 43, 44, 45, 47, 48, 50 (in part), 52, 56, 57, 58 (in part), 59 (in part), 61, 62, 64, 65, 66, 67, 68 (in part), 72 (in part), 73 (in part), 76, 77, 78, 79, 80, 81, 82 (in part), 83, 84. Rejected as irrelevant or immaterial: paragraphs 3 (in part), 5, 8 (in part), 9, 11, 12 (in part), 20, 22, 24 (in part), 34 (in part), 53, 54, 55, 58 (in part), 59 (in part), 60, 72 (in part), 74, 75. Respondent's Proposed Findings of Fact: Accepted in Substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 (in part), 17, 18, 19, 20, 22, 23, 24, 25, 27, 29, 30, 35, 36 (in part), 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 92, 93 (in part) 94, 95, 96, 97, 98, 99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118. Rejected as against the greater weight of evidence: paragraph 16 (in part). Rejected as subsumed, argument or irrelevant and immaterial: paragraphs 21, 26, 28, 31, 32, 33, 34, 36 (in part), 61, 87, 88, 89, 90, 91, 93 (in part), 103. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Hugh and Cora Harris (pro se) 208 Young Avenue Cocoa Beach, Florida 32931 Howard and Martha Crusey (pro se) 430 Johnson Avenue, Apartment #304 Cape Canaveral, Florida 32920 Carole Pope (pro se) 715 Rockledge Drive Rockledge, Florida 32955 Patricia and Eugene Wojewoda 830 North Atlantic Avenue Cocoa Beach, Florida 32931 Dana M. Wiehle, Esquire Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road, MS-35 Tallahassee, Florida 32399 Wilbur E. Brewton, Esquire Kelly Brewton Plante, Esquire Taylor, Brion, Buker & Greene 225 South Adams Street, Suite 250 Tallahassee, Florida 32301
The Issue Whether 1800 Atlantic Developers is entitled to a DER fill permit and water quality certification for the creation of a sand beach, approximately 500' long X 100' wide, requiring placement of 2,620 cubic yards of fill, 2,200 yards of which would be waterward of mean highwater (MHW), off Key West, Florida.
Findings Of Fact The Proposal By its initial application in April 1985, 1800 Atlantic proposed to place 4,100 cubic yards of fill (manufactured sand) along approximately 460 feet of eroded shoreline facing the Atlantic Ocean and fronting its 168-unit condominium (still under construction) in Key West, Florida. In connection with this project, 1800 Atlantic also proposed a 200 foot jetty at the east property line; a second and smaller jetty (if needed) at the west property line; a 400 foot long (10' high and 20' wide) fishing pier on the western property line; and a 50 x 50 foot art display platform seaward of the new beach. Approximately one and one-half acres would be filled of which 0.9 acres would be below the MHW line. The "proposed use" for the new beach was designated "private multi- dwelling." By affidavit Atlantic 1800 certified that it was record owner, lessee, or easement holder of the project site. 1/ (Atl.Exh.1) On May 7, 1985, 1800 Atlantic revised its application by submitting a new plan view to Teryl Kranzer, DER's field biologist. The modification tapered the beach fill into the shoreline toward the western property line and reduced the size of the westernmost jetty. (Atl.Exh.4) On May 10, 1985, DER sent a "Completeness Summary" to 1800 Atlantic, asking for additional information to complete the application. (DER Exh.5) On June 18, 1985, 1800 Atlantic responded to DER's Completeness Summary by submitting the additional requested information to Douglas L. Fry, Environmental Supervisor of DER's South Florida District. Revised drawings were submitted eliminating the east jetty from the project. The volume of beach fill material was indicated as 2620 cubic yards--420 above MHW, and 2200 below MHW. (Atl.Exh.5) On July 1, 1985, DER sent another Completeness Summary to 1800 At1antic seeking still more information to make the application complete. (DER Exh.6) t 20, 1985, 1800 Atlantic supplied the additional information and modified its proposal by eliminating the art display platforms the fishing pier and the west jetty. The beach fill was also modified by tapering the fill from the corner of the existing seawall at the east property line into the existing shoreline on the west property line. Total beach fill volume was shown as 2700 cubic yards--300 above MHW and 2200 below. The proposed dry beach extended 70 feet seaward (the June 18, 1985 submittal showed an 80 foot wide beach) and the toe of the fill extended 100 feet seaward of the MHW line. In response to DER's inquiry about public access, Edward Swakon, 1800 Atlantic's consulting engineer, stated: will be no provision made to assure perpetual public access to the project area. As we previously stated, the applicant has no intentions of prohibiting public access, however, you should be aware that the appli- cant is the owner of the submerged land and that no guaranteed public access is assured. (Atl.Exh.7) Mr. Swakon, on behalf of 1800 Atlantic, then addressed each of the permitting criteria of Section 403.918(2)(a), Florida Statutes (1985), though contending that they did not apply to the project: project will not affect the public health, safety, welfare or the property of others. On the contrary, as a result of this project the tax base of the City of Key West will be improved and therefore benefit the residents of the community. The beach fill will provide an added degree of protection to the upland development, thereby reducing the potential claims to the Federal Flood Insur- ance Program. In addition, the project provides a beach for 168 residents of the upland development and their many guests. This reduces the impact on the already over crowded public beaches in Key West. project will not adversely effect the conservation of fish and wildlife within the immediate vicinity. The area to be filled is devoid of significant vegetation. It is our opinion that the placement of this fill would result in an imperceptible impact to the marine resources. There are no endan- gered or threatened species or habitats located within the area to be filled. project will not adversely effect navigation, the flow of water or cause harmful erosion or shoaling. On the contrary, the placement of this material will improve the overall shoreline conditions. The filling will not cause any erosion or shoaling in the vicinity. the fill area is barren, it is our opinion that this project will have no impact on fishing, recreational values and/or marine productivity in the vicinity of the project. project will be permanent in nature will be no impact to historic or archeological resources. Id. t 26, 1986, DER received the August 20, 1986 submittal of 1800 Atlantic and the application became complete. r 5, 1985, the District Manager of DER's South Florida District in Fort Myers noticed his intent to deny the permit application. According to Douglas Fry, DER's supervisor of the District's dredge and fill section, the denial was based on information that he had received: I expected that the project would degrade both general water quality standards as established in the intent, including turbidity, biological integrity, transparency, other things noted as well as degradation of fish and wildlife standards as encompassed in part of the public interest requirements; I felt that the project would be contrary to the public interest. (Tr.546) the months that followed, 1800 Atlantic pursued the matter with various DER personnel, including Mr. Fry; Ms. Kranzer, the District biologist who performed the initial biological and water quality appraisal for the project; Steven J. Fox, Director of the Division of Environmental permitting, and William Hennessey, Deputy Director, both located in Tallahassee and supervisors of district permitting operations 2/ and Kenneth L. Echternacht, a DER hydrographic engineer in Tallahassee. Negotiations ensued, various modifications were proposed. Ms. Kranzer, the DER field biologist who had conducted the initial environmental evaluation in May 1985, and had recommended denial in September 1985, never submitted a new report evaluating the subsequent modifications, although she did discuss changes with other DER staff members. At the time she evaluated the project, it had already been modified once--cubic yardage had been reduced; the fishing pier, art platform and both jetties had been eliminated. t of negotiations between DER and 1800 Atlantic, DER reversed its initial position and, on March 27, 1986, gave notice of its intent to issue a permit for the revised project. The proposed permit incorporated changes agreed to by 1800 Atlantic. These changes required that the waterward 1/3 of the fill volume consist of coarse sand or sand aggregate no finer than 2mm in diameter; that approximately 10 percent of the sand range in size from 2mm to 6mm in diameter; and that 1800 Atlantic conduct a seagrass monitoring program for the duration of the permit. These changes were meant to resolve DER's concern that the fill material might migrate seaward and smother offshore seagrass beds. The area below the MHW line to be covered by the fill (approximately 1/2 acre) remained the same as indicated in the last drawings submitted by 1800 Atlantic on August 20, 1985. (Atl.Exh.7) l 1985, the City (of Key West) and the Coalition (Florida Keys Citizens Coalition) timely requested an administrative hearing to challenge proposed issuance of the permit. R had announced its intention to grant the permit, Mr. Fry, DER's District environmental dredge and fill supervisor continue to have concerns about the project: . . . I did not believe that the project still was clearly in a public interest, and that I did not see that the project had been modified enough to eliminate the destruction of aquatic habitat. I was concerned that the project did not encompass any mitigation to offset those, that damage. I was concerned that we had not received reasonable assurances that the project was clearly in the public interest. I was concerned that we had not received reasonable assurances that the beach fill would stay in place, thereby contributing to future degradation, and I had experienced some concerns regarding cumulative impact. (Tr.547) These concerns prompted representatives of DER and 1800 Atlantic to meet in Tallahassee on Friday, June 20, 1986. This was three working days prior to final hearing. Neither the City nor the Coalition were aware off or invited to, the meeting. s meeting, DER and 1800 Atlantic agreed to certain additional project modifications. One addition required construction of a small terminal jetty or groin on the western end of the project to stabilize the fill and replace rocky habitat to be covered by the fill. The specifications for this groin were not subsequently calculated or submitted at hearing. 1800 Atlantic proposes to "field engineer" the groin within these parameters: It would be designed to contain the fill or it would be designed in the field when the material was in place and would be designed with specifications that the rocks really didn't come any higher than the fill itself and would be adjusted so as to allow for some movement of sediment back and forth between it so as to minimize any down drift concerns that might exist. (Tr.121) l hearing, DER and 1800 Atlantic reduced this addition to writing as one of several proposed conditions to the DER permit. These conditions, ostensibly providing precision and specificity to the project changes described at hearing, were received over objection as part of DER's post-hearing Exhibit No. 7. The particular condition describing the groin-type structure to be built at the west end of the beach fill provides in pertinent part: Prior to construction of the beach fill, the permittee shall submit approximately dimen- sioned sketches of the structure, for review, modification as necessary, and approval by [DER]. (DER Exh.7) DER and 1800 Atlantic thus propose that specifications and drawings for this coastal structure be submitted, reviewed, and approved sometime in the future, after the requested permit is issued. The need for specifications is acknowledged, yet submittal and review is put off until after a permit is issued. Hence, detailed specifications for the structure remain unknown or ill- defined; scrutiny of those specifications by the City and Coalition is threatened; APA 3/ processes are frustrated. e which DER and 1800 Atlantic agreed to at the Friday meeting was to taper the toe of the fill on the western one-half of the fill area to more closely match the contour of the existing shoreline. 1800 Atlantic's engineer sketched this change, free-hand, while testifying at final hearing. Hence, it also remains ill-defined and uncertain. Like the groin, this change was reduced to writing and received as part of DSR post-hearing Exhibit No. 7. And like the groin, before construction but after the permit is issued, 1800 Atlantic is to submit a "fully dimensioned and scaled plan view of the revised beach fill limits for review, modifications as necessary, and approval" by DER. (DER Exh.7) The procedural shortcomings of such a procedure have already been noted. e which DER and 1800 Atlantic agreed to at the Friday meeting concerned off-site mitigation. As explained at final hearing, 1800 Atlantic would purchase an upland site equal in size to the area to be covered by the proposed fill and excavate it to tidal or subtidal elevations. (The upland mitigation site could be located as far as Big Pine Key (35 miles away) or elsewhere in the Florida Keys.) If this mitigation measure could not be accomplished prior to placement of the fill, a bond to assure its performance would be posted with DER. But this mitigation measure, when later reduced to writing and received as post-hearing DER Exhibit No. 7, became something quite different. The post-hearing exhibit specified that the upland mitigation site would be at least twice the size of (not equal in size to) the proposed one-half acre fill project. Moreover, the mitigation site was to be inspected and approved by DER prior to placement of the fill. If the mitigation site was not approved prior to filling, a bond (of unknown amount) would be posted to assure purchase and the excavation. With this condition, as with those already mentioned, critical features were left to future review and approval by DER, and so placed beyond the scrutiny of the other parties to this proceeding. The specific nature and location of this mitigation site is not known; neither is the amount of the bond to be posted if filling precedes mitigation. Whether the mitigation will, in fact, offset any loss of plant, fish, and wildlife habitat eliminated by the proposed fill is, likewise, unknown. Finally, the written condition, to the extent it doubles the size of the mitigation site presented at final hearing, is rejected as an unauthorized attempt to present new and additional evidence after the close of evidentiary presentation. (DER Exh.7) s other on-site mitigation measures were agreed to at the Friday meeting. As explained at hearing, algae-covered rocks within the fill area would be moved to a non- vegetated part of the submerged land; a Halodule grass bed within the fill area would be relocated waterward of the fill area; the toe of the proposed fill would be staked prior to construction; and fill placement would occur only during periods of low tide. When later reduced to writing as a post-hearing exhibit, these conditions generally conformed to their description at final hearing. Effect of Fill Project on Fishing or Recreational Values; Navigation; Marine Productivity; and Conservation of Fish and Wildlife t site is located on the southern shoreline of Key West on a narrow strip of beach known as Rest Beach, which includes a 2900 foot shoreline between Bertha Street to the east and White Street Pier to the west. The pier, a 950-foot long solid fill structure, is located 2400 feet west of the project site. Directly west of White Street Pier is another public beach (1400 feet long) known as Higgs Beach. With the exception of the submerged lands at the project site, to which 1800 Atlantic asserts titled all of the submerged lands adjacent to Rest Beach are publicly owned. (Atl.Exh.2-I; DER Exh.4) s at the project site are part of the navigable open waters of Hawk Channel and the Straits of Florida (Atlantic Ocean), designated by DER as Class III waters. On May 8, 1985, the waters in the area of the project (within the boundaries of the Florida Keys Special Waters), were also designated (by rule) as "Outstanding Florida Waters"--thereby imposing DER's most stringent level of protection from degradation of water quality loss of fish and wildlife habitat, and reduction in marine productivity. (Rule 17-3.041(4)(i); DER Exh.4) t site is bordered on the east by Bertha Street, which ends at a seawall facing the ocean. South Roosevelt Boulevard begins at the end of Bertha Street and parallels the shoreline east of the site. A public boat ramp is located on South Roosevelt Boulevard just east of Bertha Street. Just east of the ramp is a long curving jetty or groin at the southern end of a 3350-foot long public beach known as Smathers Beach. This public beach is within a few hundred feet of the project site. (Atl.Exh.6; DER Exh.4) o the west of the project site is an undeveloped parcel of land consisting largely of mangroves separated from the ocean by a sandy berm. Although the berm has been overwashed and tidal connections have opened in the past, no tidal connection was apparent at the time of final hearing. In some places the berm may have been artificially altered west of this undeveloped wetland site. Other residential condominiums are located on uplands to the west. d directly landward to the project site is a 168-unit, four story L-shaped condominium owned and developed by 1800 Atlantic. Recreational facilities, such as a swimming pool and club house, overlook the ocean. A third wing of the condominium (parallel to and abutting Bertha Street) was still under construction in July, 1985. s not the first time a permit has been sought to create or restore a beach at the site. In 1979, the trusteeship of Eugene J. Weiss, a 1800 Atlantic's predecessor in title, applied to DER for a similar "beach restoration" permit. He proposed to place (between groins to be constructed at opposite ends of the property) 1750 cubic yards of sand waterward of MHW and 2500 cubic yards landward. The approximate area to be filled was .59 acres waterward of MHW, .80 acres landward. Curtis Kruer then an environmental specialist with DER, performed a biological and water quality appraisal of the project and recommended denial because the fill would bury vegetated benthic communities that provide habitat and nutrients to marine organisms which, in turn, become a food source for a large number of juvenile fish and shellfish. He also was concerned about the short and long-term cumulative biological effects of a number of such projects on the shoreline of Key West. In April 1982, Eugene Weiss withdrew the application. (Coalition Exh. 3) s at the project site are shallows as the bottom slopes gently seaward. At mid-tide, depths of 1.5 feet are found 100 feet seaward of the MHW line. At low tide, the entire fill area is exposed. Even at high tide, water depths in the fill area range from zero (at MHW line) to approximately two feet at the toe of the fill. Because of the shallow depths, the fill project will have no significant adverse effect on navigation. (DER Exh.4; Atl.Exh.5) f stacked but unstabilized railroad ties separates the upland area (where the condominium and associated structures are located) from the beach slope. The narrow, graveled beach slope contains a mix of sand, rock, rubble and beach plants. Several distinct zones of seawrack are found on the beach slope: Thalassia at the lower portion of the beach face and Sargassum at the base. (Atl.Exh.15, 16) t 100 feet seaward of the MHW line, which includes all of the fill area, consists of small rubble embedded with calcareous sediments. The rubble consists of chunks of limestone rock and pieces of concrete less than two feet in size. Scattered among the rubble is anthropogenic debris such as bottles, asphalt and cast iron pipe. (Tr.130) f the limestone rock and rubble found on the submerged project site are residential lag from a fill at the site prior to or during the early 1960s. The boundaries and extent of the prior fill have not been established. It appears, however, to have consisted of a mix of carbonate particles ranging from silt and clay to the rocks, rubble and coarse sand now found on the project site. The fill material on site is what remains from the earlier artificial fill. e rock and rubble in the littoral zone provide attachment sites for various green, brown, and red algae such as Laurencia, Caulerpa, Cymopolia, Digenia, Batoptiora, Padina, Halimeda, Neomeris and Congia. These algal species play a positive role in the marine environment. The near shore contains a coarse sandy-shell substrate. (DER Exh.4; Atl.Exh.16) f seagrasses grow on, and immediately seaward of, the fill site. These include Cuban shoalweed (Halodule wrightii) and turtle grass (Thalassia testudinum). Some patches of seagrass are found as close as 30 feet from the MHW line. 4/ Approximately 95 feet seaward, cuban shoalweed becomes dominant; turtle grass coverage increases as one travels seaward from the site. Some cuban shoalweed patches are dense and healthy, with blades sometimes two feet in length. There is a patch of cuban shoalweed on the eastern portion of the project site. Although 1800 Atlantic has agreed to dig-up and transplant this seagrass to unvegetated portions of its property seaward of the toe of fill, the success of such a transplanting is not assured. Unvegetated bottoms can usually be explained by environmental factors. (DER Exh.4; Atl.Exh.16) s communities play a beneficial role in the marine environment. They provide habitat, feeding, and nursery areas for aquatic organisms. They supply primary nutrients as well as perform nutrient uptake and removal functions. The proposed fill would adversely impact the seagrass communities on the site--by smothering or burying any seagrasses not successfully transplanted. Moreover, the site, once converted to sandy beach for the use of owners and guests of the adjacent condominiums, could no longer support seagrass communities. r shore zone of seagrass and algal communities, adversely impacted by the proposed fill, constitutes a productive shallow water habitat that supports a variety of juvenile fish and crustaceans. These include hares, banded tulip shells, nerites, xanthid crabs, blue crabs, lizard fish, barracuda, parrotfish, killifish, needlefish, grey snapper, sergeant major, tomtates, hermit crabs, shore crabs and blue crabs. c macrofaunal species and diverse species of crustaceans live in the sediment of the in-shore rocky algae and seagrass communities. These species include Scyphoproctus, Notomastus hemipodus, Capitella capitata, Pulliella, Capitomastus, Capitellidae, Chaetozone, Tharvz annulosus, Caulleriella, Carilleriella bioculate, Glyceridae papillosa, Axiothella, Ceratonereis, Nereis Succinea, Nereis Rava, Nereis caudata, Onuphis magna, Protoariciinae, Proscoloplos, Cirrophorus lyriformis, Hasmineira elegans, Jasmineira bilobata, Fabricia, Augeneriella, Faebicola, Minuspio, Prionospio heterobranchia, Prionospio steenstrupi, Nerinides goodbody, Brania clavata, Exogone dispar, Exogone naidina, Odontosyllis, Sphaerosyllis labyrindiophia, Streptosyillis, Typosyllis hyalina, Typosyllis regulata, Typosyllis alternata, Typosyllis prolifera, Langerhansia cornuta, Langerhansia ferrugina, Syllida bansei, Terebella turgidula, Streblosoma hartmanae, Streblosoma abranachiata, Streblosoma, Pista palmata, Arca, Chjione caniculater, Tellina iris, Melita dintata, Elasmopus, Melito, Melita nitida, Rudilembordes, Dexamine, and Erichsonella filiformis. (Coalition Exh. 6) g at the site took place as recently as June 1986. Three petite ponar samples were taken in seagrass beds 150-160 feet seaward of the shoreline; three were taken in the rubble zone just seaward of the toe of the proposed fill; and two were taken in seagrass beds off nearby Smathers Beach. As measured by the Shannon Weaver Species Diversity Index, the level of species diversity in the rock rubble just seaward of the toe of fill was 2.19; in the seagrass beds farther offshore, 4.71; and in the seagrass beds off Smathers Beach, 4.76. A diversity of 4 is in the upper range of food habitat. Although diverse species of benthic organisms are found on the site, the level of diversity is substantially less than the high levels found in the thicker seagrass immediately seaward of the project site. (Atl.Exh.16) t Beach area (including the project site), provides a valuable habitat for migratory birds, wading birds, and shore birds. It is one of the last major stretches of uninterrupted shallow water bird habitat in Key West. Ms. Francis Hamer, a local resident and bird watcher for over 40 years, visits the area regularly. One of her favorite vantage points is on White Street Pier; from there, using a telescope, she observes birds feeding and wading along the Rest Beach shoreline. Although most of the birds she sees gather at the western end of Rest Beach, she has seen sandpipers, including the least sandpiper, twelve species of herons, including the yellow crowned night heron and the blue heron in the vicinity of the project site. When asked where would one go to see Sandpipers if the Rest Beach habitat was eliminated she replied, "I don't know of any other place in Key West." (Tr.645) Ms. Kranzer, the DER biologist, and Mr. Kruer, the U.S. Army Corps of Engineers' biologist, have visited the site many times over the years and observed numerous wading and shore birds in the area. Ms. Kranzer photographed eight herons in the fill area at one time. 5/ Mr. Kruer has observed the little blue heron, the great egret, the cattle egret, the white ibis and the laughing gull, numerous shore birds. The proposed fill would adversely impact this valuable feeding ground for birds. The shallow algae and rubble zone, which supports the crabs and marine organisms which nourish bird life, would be replaced with beach sand. It is also likely that increased recreational use of the beach would drive off bird life. e many natural areas typical to the Florida Keys which, as DER and 1800 Atlantic contend, are more valuable than the project site in biological productivity, and as nursery and feeding grounds for fish, marine life, and wildlife. Nevertheless, this fact does not negate the substantial benefits which the site now provides to juvenile fish, crustacenas, benthic marine organisms, and bird life. l placement of the fill will have no impact on mobile organisms able to retreat to safer waters. Benthic and other organisms on the site which are relatively immobile would be destroyed by the fill. The number killed would be a relatively small fraction of the total of such organisms along the Key West shoreline, and their loss--alone--would not affect the marine environment to an extent which is quantifiable. Effects of the Proposed Fill on Water Quality Standards; Public Health, Safety or Welfare; Significant Historical and Archeological Resources; Endangered Species or their Habitats d project will not adversely affect public healthy safety, or welfare; significant historical and archeological resources; or endangered species or their habitats. (Neither the City nor the Coalition presented any affirmative evidence establishing adverse effect.) l the project degrade or cause violations of DER water quality standards for Outstanding Florida Waters. See Rules 17-3.051, 17-3.061, and 17- 3.121, Fla.Admin.Code. Turbidity will be minimal, since filling would take place at low tide and turbidity curtains will be used. The loss of algae at the site would not cause significant degradation of water quality. (Algae covered rocks would be moved outside the fill area.) c contends that water quality would actually be enhanced by the proposed fill. The seagrasses seaward of the site have beneficial effects on water quality, but their sediment beds are shallow. 1800 Atlantic contends that the finer particles of its fill material, dispersed by waves, would provide needed sediment to the offshore seagrass beds. This ostensible benefit is problematic. The study performed to support this contention did not sufficiently investigate or explain how seagrass beds beyond the reach of nearby beaches (and their sediment) could flourish. Dense and healthy seagrass offshore has not been shown to be endangered due to shallow sediment. It is clearly less than certain that just the right amount (too much would smother, too little would have no effect) of just the right kind of fill (only the fines are needed, not the large or coarser particles) would be delivered to offshore seagrass by natural forces. Impacts on Erosion, Shoaling and Sand Migration h and shoreline at the project site are relatively stable and in equilibrium; no greater erosion is occurring than at other unfortified shorelines in the Key West area. The coarse material and rubble that line the bottom of the site act as a "natural seawall" or armor which prevents or slows down erosion. (Tr.249) Removal of the existing rubble, as proposed, would eliminate this "natural armor." (Tr.260) e in the vicinity at the site faces south to south- southeast. This exposure is relatively windward with respect to winter storms. Gentle prevailing east to southeast winds, however, produce low-energy waves that approach the shore and generate longshore currents moving east to west. (Atl.Exh. 15) f a shallow limestone ridge offshore the Atlantic shoreline in Key West, waves reaching the shore are ordinarily well-dampened. Although subject to storm and hurricane attack by high energy waves, the southern shoreline is characterized as "low-energy." (Atl.Exh.15) vicinity of the project site on the southern shoreline, there is no natural onshore supply of sediments to beaches from offshore. The beaches at Smathers Beach and at the project site (which have been narrowed by erosion over the last 25 years) are artificial, composed of limestone fragments derived from quarries. The fill was placed at both beaches sometime prior to 1962. s have undergone gradual erosion. Fine sand and silt from the beach material is carried seaward, with no natural offshore sediment to replace it. The proposed fill will provide, at least temporarily, an added degree of protection to the upland development by widening existing upland between the condominium and the sea. It will not, however, prevent continued erosion. Over time, it too, will be dispersed by wave action and longshore drift to shorelines to the west. The fill would also temporarily stabilize the public sidewalk and street to the east of the site, currently being undermined. Protection of the public sidewalk and boat ramp from erosion, however, is part of public road maintenance duties. c has neither alleged nor shown that its upland condominium, still under construction, is endangered by erosion or high-energy wave action. Nor has it shown that there are no reasonable methods of supplying an "added degree of protection" to the upland development, methods not requiring elimination of productive habitat for fish, marine life, and wildlife. s net east-to-west longshore transport of sediment along the southern shoreline of Key West. Two groins at Smathers Beach (to the east) and the nearby public boat ramp have, to some extent, interrupted the normal longshore sand transport from the east. As a result, the effects of erosion are more pronounced on the eastern portion of the site, causing a shoreline "discontinuity." Although the proposed fill would partially eliminate this discontinuity, it has not been shown that the discontinuity is a serious problem. While it may trap floating debris, this was not a significant problem in July 1985, when Ms. Krenzer, the DER biologist, inspected the site. Moreover, the proposed groin near the west property line (to stabilize the fill material) would--in itself--add a new shore discontinuity, and may cause more discontinuity to the west if it interrupts the normal longshore movement of sand. (DER Exh.4) s finer than 200 microns tend to move in suspension, while grains finer than 40 microns cause turbidity. Grains coarser than 200 microns tend to move along the sea bottom when sufficient wave or current energy is present. Analysis of onshore and offshore sediment indicates that not much material coarser than 200 microns is moving offshore into seagrass beds seaward of the project site. Most of the material larger than 200 microns found in the seagrass beds is being produced there naturally. d that the proposed fill would migrate seaward and smother offshore seagrasses, seeks a condition (to which 1800 Atlantic has agreed) requiring that the seaward one-third of the fill volume consist of coarse sand no finer than two millimeters in diameter. The evidence is insufficient, however, to eliminate the possibility that constant wave action could gradually pulverize the coarse limestone into smaller particles that, when dispersed, could smother seagrass beds directly offshore and southwest of the site. 0 Atlantic has selected fill material with settling characteristics compatible with the existing beach material on site, placement should not cause an increase in turbidity. Although 1800 Atlantic posits that just enough of the fine sediments would migrate seaward to nourish grassbeds, leaving the coarse material to migrate westward by longshore drift, these results are not assured. Winter storms and high energy waves could remove and disperse even coarse material seaward or pulverize it into smaller particles for wider dispersion. Dispersion of the coarser sand to the west by longshore drift could result in shoaling which would block periodic tidal connections which occur between the sea and the mangrove covered wetlands. n structure toward the west boundary--designed to stabilize and hold the fill material in place--may contribute to erosion to the west by interrupting natural longshore transport. The wisdom of such an artificial structure ("field designed" on-site), which may interrupt the natural longshore transport of beach sands, is doubtful. Even 1800 Atlantic's own experts criticize it. y 1982, the U.S. Army Corps of Engineers completed a "Feasibility Report for Beach Erosion Control" with an accompanying Environmental Impact Statement. This report proposed a beach restoration program on the southern shore of Key West consisting of construction of a level beach berm, four feet above MHW and 100 feet wide along the 3,000 foot length of Smathers Beach; and a beach 25 feet wide along 2,370 feet of shoreline east and 3,400 feet west of Smathers Beach. 1800 Atlantic's proposed fill falls within the boundaries of this proposed beach restoration program. y is the local sponsor of the beach erosion control project described in the Feasibility Report. As late as August 1985, the Mayor of the City sent a letter to DER's dredge and fill supervisor confirming the City's continued support for the overall beach renourishment project. Although 1800 Atlantic suggests otherwise, the City's support of a comprehensive publicly financed beach restoration project along its southern shores (which presumably would assure public access to the restored beaches) is not necessarily inconsistent with its opposition to a relatively small fill project undertaken primarily for the private benefit of the owners, guests, and tenants of an adjacent condominium. h 1981, the Governor of Florida expressed written support for the Corps of Engineers' beach restoration project, but recommended that, in order to protect the marine environment, "any future beach renourishment be done in an environmentally sensitive manner. (Atl.Exh.19) The Governor's endorsement of the public beach restoration program does not, however, equate to his endorsement of the particular and more limited private beach project at issue. Even if it did, a gubernatorial expression of support cannot supplant DER's duty to exercise its regulatory authority in accordance with Chapter 403, Florida Statutes (1985). h fill project proposed by 1800 Atlantic was designed to be consistent with the overall U.S. Army Corps of Engineers beach restoration project described in the Feasibility Report. It should be noted, however, that the Corps project was criticized by federal environmental agencies for adverse impact on seagrass beds and fish and wildlife resources. (Atl. Exh.19, Appendix 3.) c has already received a coastal construction permit for its proposed project from the Florida Department of Natural Resources ("DNR"). This permit, however, was issued by another state agency exercising regulatory authority under a different statute, with different criteria for issuance. Cumulative Impact e no similar applications for beach fill projects in the Lower Keys pending before DER, although inquiries have been made by a nearby landowner. least the last two years, DER has not issued a permit in the Keys for a fill project similar to the one proposed by 1800 Atlantic. l may be placed on submerged lands (not previously conveyed to private ownership) without the consent of the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund--the owner of sovereignty lands. The Trustees have not approved an application to place beach fill on sovereignty lands in the Florida Keys for the last three years. Nor are there any pending applications for approval to do so. (As already noted, except for the project site, all remaining submerged lands in the Rest Beach area are publicly owned.) h serves as the staff for and makes recommendations to the Trustees, has a general policy of opposing the creation of unnatural beaches in the Keys on publicly owned submerged lands. As stated by Casey Fitzgerald, Chief of DNR's Bureau of State Lands Management: [Mr. Fitzgerald] A. So in a general sense, our recommendations would typically be negative, unless shown for some public interest purpose that it should be otherwise. Q. By that latter comment, do you mean, in connection with, for example, an overall publicly sponsored beach restoration project? A. That would be one example, yes. (e.s.) (Atl.Exh.20; p.8) Whether the Proposed Fill Would be Clearly in the Public Interest y for a DER permit, 1800 Atlantic must provide "reasonable assurance that the project will be clearly in the public interest." Section 403.918(2), Fla.Stat. (1985). In deciding whether a project is "clearly in the public interest," several statutory criteria must be considered and balanced. The issue though broadly phrased--is fundamentally a factual one, and must be decided on a case-by-case basis. 6/ Section 403.918(2)(a) Fla.Stat. (1985). d in light of the seven statutory criteria, it must be concluded that the applicant has failed to show that the proposed fill would be "clearly in the public interest." t should not cause violations of water quality standards or significantly degrade state waiters. Neither should it adversely affect (1) the public health, safety, or welfare, or the property of others; (2) endangered or threatened species, or their habitats; (3) navigation or the flow of water; or (4) significant historical material and archaeological resources. Nevertheless, the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity. The site, which would be permanently covered with beach sand, now provides viable intertidal marine habitat and a feeding ground for migratory, shore and wading birds. It supports numerous species of juvenile fish and crustaceans, a diverse benthic and algae community, and patches of seagrass which benefit water quality and enhance the ecology of the marine environment. This shallow water habitat, gently sloping to the sea from an extended unfortified shoreline, is a diminishing resource in Key West. The existence of other submerged areas which are more biologically productive and support an even greater diversity of marine life do not diminish the positive value of the undisturbed project site to the marine environment. r adverse environmental impacts could occur. The proposed groin could cause increased erosion on property to the west by interrupting longshore sand drift. Shoaling could block tidal connections which periodically occur in the adjacent mangrove wetlands. Fill sands, pulverized and dispersed seaward by hurricanes or violent winter storms, could smother offshore seagrasses. y for the fill project has been shown. Though erosion has occurred over the last 25 years, the shoreline is stable, in equilibrium, and protected by a "natural armor" of coarse material and lag rubble. 1800 Atlantic has neither alleged nor asserted that the structural integrity of its upland condominium (still under construction) is threatened. The proposed fill would widen the upland between the condominium and the sea, providing an added degree of protection. While this benefits the upland structures, it is a benefit which would seemingly result whenever a fill project converts submerged land (seaward of a structure) to dry upland. Further, no necessity for an expanded private beach has been shown since there is a convenient 3000 foot public beach within a few hundred feet of the site. n measures proposed by 1800 Atlantic are insufficient to offset the known and potential adverse effects. These measures are vague, ill- defined, and uncertain. The design of the groin is left to "field engineering;" the adequacy of other mitigation measures is left to future review and decision by DER. The specific location and nature of the upland mitigation site (to be converted to submerged lands) is unknown, as is the amount of the bond to be posted if the beach fill project precedes mitigation. n expanded beach would provide recreational benefits to the owners, guests and tenants of the upland condominium, it has not been shown that similar benefits would inure to the general public. 1800 Atlantic does not guarantee that the public will have access to the beach. (It asserts only that any right of access which the public may have will not be infringed.) 1800 Atlantic's affidavit of ownership, which must be taken as true, asserts ownership of the submerged lands presumable by previous conveyance from the Trustees of the Internal Improvement Trust Fund. It is entirely possible that 1800 Atlantic, as owner of the submerged lands and upland beach, could deny access to the general public. 1800 Atlantic has not shown that the general public has any existing right to enter upon and use the submerged lands and existing beach. By promising no greater access right than the public now has, and by failing to show that the public has any existing right to enter and use the submerged lands and shoreline, 1800 Atlantic has failed to demonstrate that its beach project would provide recreational opportunities to the general public. c benefit asserted by 1800 Atlantic is that the fill would eliminate an existing shoreline discontinuity, a discontinuity that has not been shown to be a significant problem. 1800 Atlantic would replace it with a new discontinuity created by a proposed groin at the west end of the property--a groin with uncertain effects on the shoreline to the west. Another claimed benefit is that needed sediment--of the correct quality and quantity--would be contributed to offshore seagrasses; but whether this would actually occur is uncertain. c also points out that its privately funded beach restoration project is consistent with and falls within the boundaries of a proposed public beach restoration project proposed by the U.S. Army Corps of Engineers, supported by the Governor, and sponsored by the City. Any public benefit to be derived from this consistency is also doubtful. It was not shown that the Corps of Engineer's project involving Smathers Beach and Rest Beach has been finally approved and funded, or when (if at all) it would take place. Federal environmental agencies have pointed out the adverse environmental effects of such a project. A main benefit of the Corps project--expanded beach recreational opportunities for the general public--has not been shown to be a benefit which would result from 1800 Atlantic's fill project. , 1800 Atlantic has not affirmatively shown that, on balance, its proposed fill would be clearly in the public interest. The fill would have significant adverse environmental impacts--some certain, others possible. Measures offered to mitigate these impacts are vague, ill-defined, and inadequate. While benefits would inure to private upland owners, guests, and tenants, benefits to the general public are illusive or inconsequential. No necessity for the project has been shown, alternate methods of providing additional protection to the condominium may be available. A Corps of Engineers' beach restoration project for the entire area has been proposed and studied. While such a project would have adverse environmental effects at the 1800 Atlantic site, increased beach recreational opportunities would benefit the general public. 1800 Atlantic has not shown that its beach project would confer a like benefit.
Recommendation Based on the foregoing, it is RECOMMENDED: that the application for a fill permit and water quality certification filed by 1800 Atlantic be DENIED, based on failure to provide reasonable assurances that the project is clearly in the public interest. DONE and ORDERED this 3rd day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 3rd day of September, 1986.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed January 21, 2011 10:24 AM Division of Administrative Hearings DCA Order No. DCA11-GM-007
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies haye been furnished by U.S. Mail or Electronic May to each of the persons listed below on this day of January, 2011. / a Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Amy Taylor Petrick, Esquire Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, Florida 33401 Gary K. Hunter, Esquire Vinette D. Godelia, Esquire Hopping Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 33301 Richard Grosso, Esquire Robert N. Hartsell, Esquire Everglades Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 DCA Order No. DCA11-GM-007
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 The issue in this case is whether certain amendments to the City of Miami Beach Year 2000 Comprehensive Plan are "in compliance," as defined in Section 163.3184(1), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Kent Harrison Robbins, is a resident of the City of Miami Beach. Mr. Robbins owns real property located within the boundaries of the City of Miami Beach. Petitioner, Altos Del Mar Development Corporation (hereinafter referred to as the "Development Corporation"), is a corporation. The Development Corporation is owned by Mr. Robbins. Respondent, the City of Miami Beach (hereinafter referred to as the "City"), is a political subdivision of the State of Florida. The City is located in Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Standing. Mr. Robbins owns real property (hereinafter referred to as the "Robbins Property") in the City. The Robbins Property is located west of Collins Avenue between 76th Street and 77th Street. The Robbins Property is located across Collins Avenue from one of the areas which is the subject of this proceeding. The Robbins Property is also located a few blocks from other areas which are the subject of this proceeding. Mr. Robbins made oral comments before the City at public hearings on the amendments which are at issue in this proceeding. Development Corporation is owned by Mr. Robbins. Development Corporation is the contract-purchaser of the Robbins Property. Mr. Robbins and Development Corporation have standing to institute this proceeding. The Department and the City have standing to participate in this proceeding. General Description of the City and the North Shore Area of the City. The City is a group of barrier islands located along the southeast coast of Florida. The City is 99 percent developed. The City is bounded on the east by the Atlantic Ocean and on the west by Biscayne Bay. The area at issue in this proceeding is located in an area of the City generally referred to as "North Shore." North Shore is heavily urbanized, as is the City generally. Within North Shore are located North Shore Open Space Park, North Shore Park, Altos Del Mar Historic Preservation District, and the Harding Townsite/South Altos Del Mar Historic District. North Shore Open Space Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 79th Street, and south of 87th Street. North Shore Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 72nd Street and south of 73rd Street. The Altos Del Mar Historic Preservation District (hereinafter referred to as "Altos Del Mar") is an area of the City that was designated an historic district in January 1987. Altos Del Mar consists of the area bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 79th Street, and on the south by 77th Street. The Erosion Control Line is a line that runs generally north-south along the eastern boundary of the City and the Atlantic Ocean. The Erosion Control Line marks the western boundary of the area of the shoreline in which efforts to stop or slow erosion of the beaches have been directed. The Harding Townsite/South Altos Del Mar Historic District (hereinafter referred to as "Harding Townsite") was designated an historic district in October 1996. Harding Townsite is bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 77th Street, and on the south by 73rd Street. The City's Comprehensive Plan. The City adopted the City of Miami Beach Year 2000 Comprehensive Plan (hereinafter referred to as the "Plan"), on September 7, 1989. The Plan was found to be "in compliance" as defined in the Act in December 1992. Part II of the Plan establishes goals, policies, and objectives of the Future Land Use Element. Objective 1, Policy of the Future Land Use Element of the Plan establishes, in relevant part, the following land-use categories, land-use intensities, and land-use densities: Recreation and Open Space, including Waterways, or "ROS," which is described as: as: Purpose: To provide development opportunities for existing and new recreation and open space facilities, including waterways. Uses which may be Permitted: Recreation and open space facilities, including waterways. Single Family Residential, or "RS," which is described Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and new single family residential development. Uses which may be Permitted: Single family detached dwellings. Density Limits: 7 residential units per gross acre. Parking, or "P," which is described as: Purpose: To provide development opportunities for existing and new parking facilities. Uses which may be Permitted: Parking facilities and commercial uses when located on frontage opposite a land use category that permits commercial use. Public Facility, or "PF," which is described as: Purpose: To provide development opportunities for existing and new government uses including convention center facilities. Uses which may be Permitted: Government uses and convention facilities. Low Density Multi Family Residential, or "RM-1," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new low density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings and multiple family dwellings. Base Density Limits: 34 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 90 dwelling units per gross acre, inclusive of base density. Medium Density Multi Family Residential, or "RM-2," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new medium density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings, multiple family dwellings, apartment hotels and hotels. Other uses which may be permitted are adult congregate living facilities, day care facilities, nursing homes, religious institutions, private institutions, public institutions, schools, commercial parking lots and garages and non-commercial parking lots and garages. Base Density Limits: 56 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 136 dwelling units per gross acre, inclusive of base density. The Plan contains all of the elements required by the Act, including a Future Land Use Element, a Recreation and Open Space Element, and a Conservation/Coastal Zone Management Element. The Plan also contains a Future Land Use Map. Adoption and Review of the Plan Amendments. On or about January 21, 1994, the City transmitted amendments to its Plan to the Department for review. The amendments were adopted generally to "down-plan" the City and to encourage the redevelopment of the Altos Del Mar neighborhood. In an effort to "down-plan" the City, the amendments provided for a reduction of the overall amount of residential development allowed in the City pursuant to the Plan. In an effort to promote redevelopment of the Altos Del Mar neighborhood, the amendments replaced the dual single-family residential and recreation and open space land-use classifications of property in Altos Del Mar and classified the area as single-family residential; and reclassified under- utilized parking areas and medium density multi-family properties as low density multi-family. The Department designated the amendments as Amendment 94-1, reviewed the amendments, and issued its Objections, Recommendations, and Comments Report on April 1, 1994. On June 2, 1994, the City enacted Ordinance Number 94-2928 adopting the amendments (hereinafter referred to as the "Proposed Amendments"). The Proposed Amendments were submitted to the Department for review under the Act. The Department reviewed the Proposed Amendments and found that they were not "in compliance." The Department issued a Notice of Intent to find the Proposed Amendments not in compliance on July 28, 1994. The Department filed a Petition for Formal Administrative Hearing challenging the Proposed Amendments with the Division of Administrative Hearings on August 16, 1994. Following negotiations between the City and the Department, a Compliance Agreement was entered into on September 19, 1996. Pursuant to the Compliance Agreement, the City adopted remedial amendments. On December 5, 1996, the Department published a Cumulative Notice of Intent finding the amendments, as modified by the remedial amendments (hereinafter referred to as the "Adopted Amendments"), "in compliance" with the Act. Petitioners' Challenge. Petitioners filed a Petition for Administrative Hearing with the Department challenging the determination that the Adopted Amendments were "in compliance." On January 16, 1997, the Department dismissed the petition by Order Dismissing Petition with Leave to Amend. Petitioners filed an Amended Petition with the Department on February 4, 1997. The Amended Petition was filed by the Department with the Division of Administrative Hearings on February 14, 1997. On June 9, 1997, Petitioners moved to further amend the Amended Petition. Petitioners' request was granted. The Challenged Amendments. There are three changes to the Plan in the Adopted Amendments that have been challenged in these proceedings. Those changes involve modifications to the Future Land Use Map (hereinafter referred to as the "FLUM"), and textual changes pertaining to the geographic areas at issue in this proceeding. The relevant changes to the FLUM were designated FLUM Changes 14, 16a, 16b, and 16c (the areas which are the subject of changes 14, 16a, 16b, and 16c are hereinafter referred to respectively as "Area 14," "Area 16a," "Area 16b," and "Area 16c"; the areas are collectively referred to as the "Subject Areas"). Petitioners have challenged Changes 14, 16a, and 16b (hereinafter referred to as the "Challenged Amendments"). The Subject Areas are located within Altos Del Mar and/or the Harding Townsite. With regard to Change 14, Petitioners have alleged generally that the amendment is not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning future land use, conservation, coastal management, and recreation and open space elements. Petitioners have argued generally that Area 14 may only be used for recreation and open space because the area is in effect a park or open space; there is a dune located on the property; the use of the property for single-family residential will negatively impact wildlife and plant life; and the use of the property for single-family residential will negatively impact historic resources. With regard to Changes 16a and 16b, Petitioners have alleged generally that the amendments are not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning the coastal management, recreation and open space, and housing elements. Petitioners have argued generally that Changes 16a and 16b will negatively impact public access to beaches and inappropriately reduce public parking. In Petitioners' proposed recommended order, Petitioners attempted to raise issues which were not alleged in their Second Amended Petition. Petitioners contended that the Department's original notice that the Proposed Amendments were not in compliance was defective; that the Adopted Amendments were not necessary to meet projected demands for residential land uses in the City; and that the Adopted Amendments were not consistent with coastal planning objectives. These issues were not properly raised is this case. The City and Department had no opportunity to present evidence to address these issues because Petitioners had not raised the issues until they filed their proposed order. Nor, to the extent these issues may have been properly raised before this forum, did the evidence support Petitioners' allegations. Area 14 and FLUM Change 14. Area 14 is bounded on the south by 76th Street, on the north by 79th Street, on the west by Collins Avenue, and on the east by the Atlantic Ocean. The Robbins Property is located adjacent to Area 14, on the west side of Collins Avenue between 76th Street and 79th Street. Area 14 is bounded on the north by North Shore Open Space Park. Area 14 consists of Blocks 5, 6, 7, 10, 11, and 12. Area 14 is located in Altos Del Mar or Harding Townsite. There are 36 individual platted lots in Area 14. Twenty-two of the lots are currently owned by the State of Florida. The rest are in private ownership. Area 14 consists of approximately 11 total acres. Area 14's designated land-use classification on the FLUM prior to the adoption of the Challenged Amendments was "Recreation and Open Space" and "Single Family Residential." This dual land-use classification is identified on the FLUM as "ROS/RS." Pursuant to the dual land-use classification of Area 14, property located within Area 14 could be permitted for single-family dwellings or it could be used for recreation and open space. Petitioners' have alleged that FLUM Change 14 "change[s] the designation of [Area 14] from recreational open space to single family residential." This allegation is not supported by the evidence in this case. FLUM Change 14 eliminates the dual land-use classification of Area 14. Pursuant to FLUM Change 14, Area 14 is designated for use as Single Family Residential only. The dual land-use classification was eliminated to encourage reinvestment of single-family residential development in the area. I. Current Use of Area 14. Area 14 currently includes vacant lots, lots with boarded-up structures, and several single-family residences. There are more vacant and unused lots than there are lots with single-family residences. The 22 lots owned by the State are not all contiguous. The largest area of contiguous state-owned lots is located between 76th and 77th Streets. This area is located adjacent to the Robbins Property. Eleven of the twelve lots between 76th and 77th Streets are owned by the State. There is one privately-owned lot located just north of 76th Street. The State also owns two lots just north of 77th Street. The lots in Area 14 north of 77th Street are primarily owned in a checker-board fashion. Some of the lots north of 77th Street have existing single-family residences located on them. The rest of the lots are vacant or have boarded-up buildings located on them. Because of the proximity of Area 14 to the Atlantic Ocean and the accessibility of the beach from the area, the public uses the open areas of Area 14 for recreational purposes from time to time. The area is generally open, there is grass, pine trees, and sea grapes on some lots, and there is a public shower located at the east end of 77th Street. The trees and other vegetation offer shaded areas. There is public parking available in the area on side streets off of Collins Avenue and a public parking lot just to the south of 76th Street. There are several access points to the beach along Area 14, including an access point at the east end of 77th Street. There is a rock fence at the end of 77th Street. The rock fence is typical of fences that were placed at the ends of streets in the City that led to the beach. The fences were erected to prevent vehicular traffic entering the beach while allowing pedestrian access. The public has used the open areas of Area 14 for some time for picnicking, walking their pets, playing games, barbecuing, and other outside recreational activities. The evidence failed to prove the extent of this use. The evidence presented by Petitioners was not gathered in any organized fashion and was unconvincing. The 22 lots owned by the State in Area 14 were originally acquired with the intent of creating a park at some time in the future. The State had intended to acquire all of Area 14 for this purpose. The lots were acquired by the State as part of the Save Our Coast Park Expansion Program. When the State's efforts to acquire all of Area 14 failed, the State decided not to acquire any more lands. The lots the State had acquired in Area 14 were designated as "excess lands." The State intends to sell the lots it owns in Area 14. In 1994, after the State abandoned its plan to acquire all of Area 14, the City and State, through the Board of Trustees of the Internal Improvement Fund, entered into a lease (hereinafter referred to as the "Lease"). Pursuant to the Lease, the State leased North Shore Open Space Park and the publicly- owned lots in Area 14 to the City. Although the period of the Lease was twenty-five years, the Lease provided that it was entered into "upon an interim basis" while negotiations concerning transfer of fee title of the property to the City were ongoing. During this "interim" period, the Lease provides that the property is to be used exclusively for recreational purposes. The City agreed to manage the property as a public park. The City does manage North Shore Open Space Park as a public park. Despite any requirement to the contrary under the Lease, the City has not created, or operated, a park in Area 14. Neither the City or the State actually created a park out of any part of Area 14. Nor has the City or State used any part of Area 14 as a park. Area 14 has not been included by the City in its Recreational and Open Space inventory. Consequently, Area 14 and any use by the public was not considered by the Department in the determination that the City's Recreation and Open Space Element of the Plan is in compliance. Petitioners' Assertion that Area 14 Must be Used as a Park. Petitioners attempted to prove that Area 14 must be used for recreational purposes or as open space. Petitioners based this argument on their assertion that the character of Area 14 is suitable for, and has historically been used as, a park or open space; the State and City planned and managed Area 14 as a park; the data and analysis relied upon by the City in adopting FLUM Change 14 contains an alleged incorrect statement concerning the current use of the area; and there is a need in the City for additional recreation and open space property. Petitioners have proposed a relatively large number of findings of fact to support this position. While those findings of fact are generally accurate when considered standing alone, they are not relevant to the determination of whether the Challenged Amendments are in compliance and, therefore, have not been included in this Recommended Order. Petitioners failed to prove that Area 14 is used as a "park." Even if they had, nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area can be developed only in a manner that is consistent with its historical use. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in the manner in which the property was used informally by the public. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in a manner that is consistent with a use which the State or local government may have considered appropriate for the area at some time in the past. Finally, there are no provisions in the Plan, the Act, or the rules of the Department that require that a comprehensive plan be consistent with the terms of a lease agreement, especially where the lease agreement was expressly entered into on an interim basis. Alleged Error in the Data and Analysis Concerning the Use of Area 14. The data and analysis in support of the Adopted Amendments indicates that "[t]he area encompassed by Future Land Use Map 14 is NOT now used for recreational purposes and it is not counted in the recreation facility inventory in the Recreation and Open Space Element." Petitioners cited part of the foregoing sentence from the data and analysis, and argued that the statement is not accurate. The evidence failed to support Petitioners' position. Petitioners' citation of part of the sentence quoted in finding of fact 66 fails to consider all of the data and analysis considered by the City in adopting the Challenged Amendments. Petitioners' argument is also based upon the unsupported conclusion that the common use of parts of Area 14 by the public constitutes "recreational purposes" as those terms are used in the data and analysis. When read in context, it is clear that the terms are being used in a technical, land-use planning sense. In their technical, land-use planning sense, the sentence is accurate. The evidence failed to prove that the data and analysis relied upon by the City in adopting the Challenged Amendments are not professionally reliable or that the data and analysis do not support the Challenged Amendments. The Need for Additional Recreation and Open Space. Petitioners have asserted generally that the amendments relating to Area 14 are not in compliance because of the need for additional recreation and open space in the City. Petitioners failed to prove this assertion. The evidence failed to prove that the Challenged Amendments relating to Area 14 somehow will cause a deficit in the Recreation and Open Space inventory of the City or that such a deficit already exists. Further, had Petitioners been able to prove that there is a need for additional parks in the City, such proof would only support a finding that the Recreation and Open Space Element of the Plan is inadequate. It would not, however, necessarily follow that the City would be required to correct the inadequacy through the use of Area 14 as a park. Finally, Petitioners have failed to prove how FLUM Change 14, which does not authorize any use of Area 14 that is not already authorized without the change, will have the suggested effect on the City's recreation and open space inventory. The National Recreation and Park Association's minimum level of service standard for recreation and open space is ten acres per one thousand permanent and seasonal residents. The City has adopted this level of service for recreation and open space in the City. The City meets this standard without consideration of Area 14 or any part thereof. Data and analysis, unrefuted by credible evidence from Petitioners, indicates that FLUM Change 14 will not adversely effect the level of service standard for recreation facilities: [R]emoval of the ROS designation will not per se reduce the recreation level of service. The re designation [sic] of site to Single Family Residential will create a small additional residential development potential, thus putting more demand on existing recreation facilities. However, the additional demand will not result in the city failing to meet its recreation level of service since it is an inconsequential amount and since it will be more than balanced by the net reduction in permitted residential development which will result from the cumulative effect of all of the proposed Future Land Use Map changes. The recreation level of service is established by Policy 2.1 of the Recreation and Open Space Element at ten (10) acres of recreation and open space per one thousand permanent and seasonal residents with 20 percent of seasonal residents counted. The Recreation space inventory shown in Table VIII-1 of the Recreation and Open Space element will still have the 1,156 acres shown therein after the 94-1 Future Land Use Map change (including change number 14) is effectuated. The 2002 population projection reported in Tables I-2 and I-3 of this element will remain at 98,965 permanent and 70,000 seasonal because it is based on trend lines not individual development sites. The 98,965 permanent population plus 20 percent of the 70,000 seasonal population produces a population of 112,965 for purposes of the recreation level of service standard. Then, 1,156 acres of existing recreation land/(112,965 people/1,000 people) equals a level of service of 10,233 acres per 1,000 population. The evidence failed to prove that FLUM Change 14 will adversely impact the City's ability to meet its adopted recreational level of service. The City has made commitments to upgrade existing recreational facilities, including improvements to North Shore Open Space Park. Included in the City's inventory of Recreational and Open Space property is La Gorce Country Club. La Gorce Country Club makes up 144.28 acres of the total 1,156 acres of recreational property relied upon by the City to meet its level of service standard. The La Gorce Country Club's inclusion in the Recreational and Open Space inventory was reviewed and approved in 1992. It played no part in the Challenged Amendments. Petitioners attempted to prove that the La Gorce Country Club should not be included in the Recreational and Open Space inventory. The evidence in this case failed to prove Petitioners' assertion. The La Gorce Country Club is a private country club. It is, however, available to the public for some recreational activities. It is, therefore, acceptable to include it as recreational property under the Department's rules. Additionally, even if the evidence had proved that La Gorce Country Club should not be considered in determining whether the City's level of service standard has been met, there is no requirement in the Act, the Department's rules, or the Plan that Area 14 must be included to make up the resulting deficit. Even if there were such a requirement, the inclusion of the 11 acres of Area 14 in substitution for the 144.28 acres of the La Gorce Country Club would not correct the deficit. Petitioners also suggested that Area 14 is qualitatively better recreational property than La Gorce County Club. This argument, and the facts offered to support it, are not relevant. The evidence failed to prove that the City has not adopted an adequate level of service in its Recreation and Open Space Element, or that the City is not meeting its level of service. The evidence also failed to prove that FLUM Change 14 is inconsistent with City's Recreation and Open Space Element Goal: Develop and Maintain a Comprehensive System of Parks and Recreational open Spaces to Meet the Needs of the Existing and Future Population by Maximizing the Potential Benefits of Existing Facilities and Open Space While Encouraging the Preservation and Enhancement of the Natural Environment. In light of the fact that Area 14 has never been treated as a park by the City, the evidence failed to prove that the City is not meeting its Recreation and Open Space Element Goal without regard to the land-use classification of Area 14. Archaeology of Area 14. Prior to March of 1927 there was a United States Federal Life Saving Station, known as the "Biscayne House of Refuge," located somewhere in the vicinity of Area 14. The Biscayne House of Refuge was one of six similar buildings located on the east coast of Florida. The buildings were used to provide refuge for shipwrecked sailors. The original Houses of Refuge were authorized by President Ulysses S. Grant in the late 1800's. The Biscayne House of Refuge was stocked with provisions and was managed by a keeper. The keeper's duties included, among others, burying bodies that washed up along the coast. Several of the keeper's children were also buried somewhere near the Biscayne House of Refuge. The evidence failed to prove, however, where any bodies are buried. It is believed that the Biscayne House of Refuge was destroyed following damage to the structure during a hurricane in March of 1927. The exact location of the Biscayne House of Refuge has not been determined. The best information available indicates it was located east of Collins Avenue, and either between 73rd and 77th Streets, or between 72nd and 76th Streets. There is also some information to suggest that the Biscayne House of Refuge was located on a site that is already developed for the City's library. The Florida Department of State, Division of Historical Resources, reported that its Historical Preservation Review of the Adopted Amendments had determined that the 22 proposed changes to the City's FLUM "should have no adverse effects on the city's historic resources since the areas appear to contain no sites listed on the Florida Site Files or the national Register of Historic Places." The evidence concerning the location of the Biscayne House of Refuge presented by Petitioners was speculative, at best. The evidence failed to prove that the Challenged Amendments will have any impact on the Biscayne House of Refuge or any significant archaeological resources. The evidence also failed to prove that FLUM Change 14 is inconsistent with the historic designations of Altos Del Mar or Harding Townsite. Natural Dunes. In its original state, the beaches of the City may have had extensive barrier reef dune systems along the Atlantic Ocean. To the extent that such systems existed, however, they have been radically altered by development and the impact of tides and winds on the dunes. The natural dune system of the City today has essentially been destroyed or so altered as to no longer be considered a significant dune system. The protection normally afforded by a dune system is now provided, not by a natural dune system, but by the man-made dunes east of the Erosion Control Line. Petitioners attempted to prove that there is an existing dune system in Area 14. The evidence failed to support Petitioners' contention. The evidence proved that, at best, there may be remnants of dunes along the eastern boundary of Area 14. One such feature is approximately four feet to four and a half feet in height, twenty feet wide, and a hundred to one hundred fifty feet in length. The evidence failed to prove, however, whether the piles of sand that do exist along Area 14 should be considered as dunes. The character of the coastline of the City, including Area 14, has been drastically altered by hurricanes, including the 1927 hurricane that destroyed the Biscayne House of Refuge. Erosion has eliminated much of the City's shoreline, in some cases eroding the beach to bulk heads. The construction of the dunes east of the Erosion Control Line also may have impacted any existing dune system in Area 14. The construction of the dunes involved a significant amount of grading. The evidence failed to prove what impact, if any, construction of the dunes had in forming the piles of sand that now exist along Area 14. The evidence also proved that, to the extent that any remnants of natural dunes may exist near Area 14, their function as a dune system has been substantially, if not completely, replaced by the man-made dune system along the Erosion Control Line. The Erosion Control Line was established as part of a beach renourishment project of the United States Army Corps of Engineers. The project lasted from 1975 through 1981 and cost approximately $60 million. The efforts of the United State Army Corps of Engineers included the expansion of the beach and the construction of a dune system that runs the entire length of the City's Atlantic Ocean shoreline. The constructed dunes have also been vegetated through a separate grant of approximately $4.5 million. The Erosion Control Line is owned by the State of Florida, managed by Metro-Dade County, and protected by the City. The evidence also failed to prove that, if a dune system did exist along Area 14, the Challenged Amendments allow any different impact on the dunes than was already allowed under the Plan. The Challenged Amendments do not authorize the development of Area 14 in a manner that was not allowed without the Adopted Amendments. Petitioners relied upon a United States Department of Agriculture, Soil Conservation Service, Soil Survey for Dade County prepared in 1957; a 1914 historical map of the City; and aerial photographs and contour maps prepared in 1975 by the United States Army Corps of Engineers to support their argument that significant dunes exist in Area 14. They attempted to bring these documents up-to-date largely through recent visual observations of the area. This evidence was not persuasive. The evidence proved that Area 14 is typical of the City's shoreline before extensive development. The evidence also proved that the remaining piles of sand may very well be a remnant of a dune system that existed at some time in the past. What the evidence failed to prove, however, is that the piles of sand are in fact part of a dune system that once existed in the area or that, if they are in fact part of a former dune system, the piles of sand should still be considered to be functioning as a dune system. Petitioners also have argued that the City mischaracterized the type of soils in Area 14 in the data and analysis as "fill." Petitioners argue that, had the City properly characterized the soils in Area 14, the City would have known that there was a natural dune. The evidence failed to support this argument. What the City actually indicated in the data and analysis is that "[t]he entire island is essentially 'madeland' except for the sand along the ocean beach." Petitioners' argument concerning this statement is not persuasive. First, the statement relied upon by Petitioners recognizes that there are areas that are not "made-land." What the data "along the ocean beach" means could be clearer or more precise, but the statement does not support a finding that the City simply dismissed the possibility that a dune may exist along Area 14. Additionally, Petitioners have simply taken a statement intended to apply to the entire City, and attempted to apply it to an 11-acre area. Petitioners have also argued that the City mischaracterized the nature of soils by stating in the data and analysis that "[t]he entire island consists of fill (shell and muck) together with sand." Petitioners argue that this statement is incorrect and that, if the City had properly taken into account the nature of the soils in Area 14, the City would have recognized that there were dunes. Again, Petitioners have taken the statement out of context. Petitioners have only considered the use of the term "fill," ignoring the fact that the statement also specifically states that the City is an "island" and that the fill exists "together with sand." Finally, the evidence failed to prove that provisions of the Plan and the City's Land Development Regulations dealing specifically with the protection of dunes are not adequate to protect any dunes that may exist in Area 14: Objective 1, Policy 1.4 of the Future Land Use Element provides for compatibility of uses of property adjacent to dunes and provides for the conservation of beach lands designated on the FLUM and the Conservation Element; Objective 1, Policy 1.2 of the Future Land Use Element designates dune locations on the Atlantic Coast as Conservation Protected "C" and permits only open space uses of these areas. It also provides for protection of such areas from the encroachment of development; Objective 1 of the Conservation/Coastal Zone Management Element provides that there will be "zero man-made structures which adversely impact beach or dune system(s)"; Objective 1, Policy 1.2 of the Conservation/Coastal Zone Management Element requires vegetation of, and elevated footpaths over, dunes to minimize pedestrian impacts; Objective 1, Policy 1.4, and Objective 10, Policy 10.1 of the Conservation/Coastal Zone Management Element discourage non-water oriented activities and development on beach-front parks, new beach areas, and dunes by designating the beach as a Conservation Protected Area on the FLUM; Objective 3, Policy 3.4 of the Recreation and Open Space Element provides that the City will inform Metro-Dade County and the United States Army Corps of Engineers when maintenance or renourishment of the beach is necessary; and The City's Land Development Regulations provide protection through the Dune Overlay Regulations. The evidence failed to prove that the alleged dune in Area 14 has "archeological significance." Impact on Wildlife and Vegetative Communities. The evidence presented by Petitioners concerning the use of Area 14 by birds and vegetative communities was anecdotal and unpersuasive. Practically the entire length of the City's boundary with the Atlantic Ocean is used for nesting by the Atlantic Loggerhead Turtle, Leatherback Turtles, and Green Turtles. All are threatened or endangered species. Nesting of turtles in the immediate vicinity of Area 14 has been moderate to low. Greater nesting activity takes place along the more urbanized South Beach area. Coastal development has contributed to the endangered status of sea turtles. A number of factors, some related to development, may influence whether a turtle will nest in an area, including the amount of artificial light and noise, how hard the sand is, and the presence of people. These factors may cause turtles to abandon attempts to nest after coming ashore. Artificial light may also disorient hatchlings, causing them to head away from the ocean. Despite the possible impact of artificial light on turtle nesting and hatchlings, turtles continue to successfully nest in developed areas, including the highly developed South Beach area. Data and analysis relied upon by the City in support of the Challenged Amendments identified the status, habitat, and reasons for concern for turtles. Turtles usually nest within 50 feet of the ocean's edge. Therefore, the evidence failed to prove that it is likely that turtles will enter the portion of Area 14 where single- family structures may be built. Petitioners failed to prove that turtles are likely to cross over the dunes constructed east of the Erosion Control Line to reach Area 14. The City is involved in efforts to protect nesting turtles. The area which turtles use to nest in is owned by the State of Florida. Metro-Dade County manages the area for the State of Florida. Metro-Dade County maintains a staffed facility at 79th Street and Collins Avenue for the maintenance and protection of turtle nests. The City has also designated the area where turtles generally nest as a Conservation Protection Area. Protections are also provided for wildlife and vegetative communities which may exist west of the Erosion Control Line. Land Development Regulation 15, Dune Overlay Regulations, provides protection for wildlife and vegetative communities west of the Erosion Control Line and east of the edge of the pool deck, if one exists, or the old Miami Beach Bulkhead Line by limiting permanent structures other than pedestrian crossovers of dunes. The evidence in this case failed to prove that the modification of the land use classification of Area 14 will have a negative impact on wildlife, including turtles, or vegetation. First, Petitioners failed to prove that single-family use of Area 14 will in fact result in an adverse impact or that potential adverse impacts cannot be mitigated. Additionally, Petitioners failed to prove that FLUM Change 14 allows any use of Area 14 which is not already allowed. Prior to the adoption of FLUM Change 14, Area 14 could be used for recreational or open space and/or for single-family development. The evidence also failed to prove that the Plan's Conservation Element, Recreation and Open Space Element, or Coastal Management Element, are not in compliance as a result of Challenged Amendments relating to Area 14. Finally, the evidence failed to prove that the Challenged Amendments cause the City's inventory of existing coastal uses, habitat, vegetative communities, and wildlife to be inadequate. Neither the Act nor the Department's rules require a separate inventory map for each parcel of property impacted by a plan amendment. Required Use of Funds from the Sale of Lots in Area 14. Included in the data and analysis in support of the FLUM Change 14 is the following statement: "It is envisioned that proceeds from the sale of lots will be allocated to a fund for the enhancement of North Shore Open Space Park." In the Second Amended Petition, Petitioners challenged this statement as lacking commitment. Petitioners ignore the amendment to Policy 7.2 of the Conservation/Coastal Zone Management Element which provides that "the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline." This amendment imposes a mandatory requirement for the use of any funds that may be realized, and it has not been challenged by Petitioners. Whether there will in fact be any proceeds from the sale of the lots in Area 14 that are publicly owned is not relevant to the question of whether FLUM Change 14 is in compliance. There is no requirement in the Act or the rules of the Department that mandates that the proceeds from the sale of the lots be used for recreation purposes. Municipally-Owned Shoreline. Policy 7.2 of the Conservation/Coastal Zone Management Element of the Plan provides that the City will "not decrease the amount of municipally-owned shoreline available for public use" except under certain specified circumstances. Petitioners have asserted that FLUM Change 14 is inconsistent with this provision because the Area 14 property owned by the State is "essentially 'municipally owned' land." Petitioners argument is rejected. First, Petitioners failed to raise this argument in the Second Amended Petition. Secondly, even if the argument had been properly raised, the evidence failed to prove that any of Area 14 is "municipally- owned." In fact, none of the property in Area 14 is owned by the City. Finally, Policy 7.2 of the Conservation/Coastal Zone Management Element was amended to add the following exception to the prohibition against the City decreasing the amount of municipally-owned shoreline: 2) where municipal or other public acquisition is incomplete and there is not possibility for complete public acquisition of a usable portion of shoreline, or 3) in order to upgrade other public shoreline sites and facilities. Petitioners have not challenged the newly adopted exceptions to Policy 7.2's prohibition against decreasing municipally-owned shoreline. Petitioners have also failed to prove that the exceptions do not apply in this case. More precisely, Petitioners have failed to prove that, should the City acquire ownership of any of the State-owned Area 14 shoreline, that the exceptions will not apply. 7.2: The City also added the following language to Policy The development of the Altos del Mar area for single family residential use rather than for Recreation and Open Space as designated on the previous Future Land Use Map is specifically identified hereby as conforming to this policy (Policy 7.2) subject to the following conditions: the sites now owned by state agencies are sold for private single family residential development in a coordinated manner based on an overall neighborhood plan and a private development agreement that enhances the quality of life for those existing privately owned residences which are interspersed throughout the publicly owned sites; and 2) the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline. Petitioners did not challenge the provision quoted in Finding of Fact 126. Nor did Petitioners prove that the provision will not apply. Areas 16a and 16b, and the Changes Thereto. Area 16a consists of approximately 11 acres. Area 16b consists of approximately 2 acres. Areas 16a and 16b are bounded on the south by 79th Street, on the north by 87th Street, and on the east by Collins Avenue. Area 16b is located between 81st and 82nd Streets. To the east of Collins Avenue and Areas 16a and 16b is the North Shore Open Space Park. Area 16a consists of blocks 12 through 17 and 19 through 20. Area 16b consists of block 18. Areas 16a and 16b are part of Altos Del Mar. Blocks 12 and 18 are owned by the City. The remaining blocks are owned by the State. Located to the west of Areas 16a and 16b is Area 16c. Although FLUM Change 16c has not been challenged, the FLUM changes to Areas 16a, 16b, and 16c are related. The designated land use of Area 16a on the FLUM prior to the adoption of the Challenged Amendments was "Parking." This designation is identified on the FLUM as "P." The designated land use of Area 16b prior to the adoption of the Challenged Amendments was "Public Facility." This designation is referred to on the FLUM as "PF." The designated land use of Area 16c prior to the adoption of the Challenged Amendments was "Medium Density Multi Family Residential." This designation is identified on the FLUM as "RM-2." FLUM Changes 16a and 16b changes the current designations of Areas 16a and 16b to "Low Density Multi Family Residential." This designation is referred to on the FLUM as "RM-1." FLUM Change 16c changes the current designation of Area 16c to "Low Density Multi Family Residential." The modification of Area 16 to Low Density Multi Family Residential classified land is part of the City's overall plan to "Down Plan" the City. The Adopted Amendments include several FLUM changes which, when considered together, result in a net reduction in the allowable residential densities in the City. These modifications were intended to reduce the intensity of development allowed under the Plan in the City, help the City to meet its level of service standards for public facilities and services, and maintain the character of the City. FLUM Changes 16a, 16b, and 16c are part of that overall effort. Current Use of Areas 16a and 16b. Areas 16a and 16b are currently used as public parking lots. The parking lots are sparsely used, however. A fee of twenty-five cents per fifteen minutes is charged for parking in the lots. The State has declared the lots that it owns as excess lands. The lots are to be sold. The parking lots are used for access to the North Shore Open Space Park, a/k/a, the North Shore State Recreational Area (hereinafter referred to as the "Park"). The Park consists of approximately thirty-seven acres. The Park is surrounded by a fence. Access to the Park is through an entrance gate. Availability of Parking in the City and Public Beach Access. The data and analysis utilized by the City in support of the Adopted Amendments indicates that there are "numerous access points to the ocean." The City recognizes, however, that the "principal constraint [on access] is not the number of access points but the parking to serve them as well as nearby commercial and residential uses." The impact of FLUM Changes 16a and 16b will eliminate the parking lots and the parking spaces now available at those lots. This will result in a loss of approximately 270 paved and metered parking spaces, and other potential spaces that are not now used for parking on some of the lots. There will also be an increase in residential use of Area 16, which will require parking. Data and analysis in support of FLUM Changes 16a and 16b provides the following committment: These two changes contain a total of eight blocks devoted to surface parking, two owned by the City of Miami Beach and six owned by the State of Florida. The parking is sparsely used even though it is available for the general public, including visitors to North Shore Open Space Park. The Department of Environmental Protection, Division of State land has determined that the state-owned blocks should be sold to Miami Beach which will make them available for a combination of public parking and private residential development. These uses may be accommodated by placing parking at grade on some or all of the blocks and constructing residential units in air rights above or they may be accommodated by placing public parking structures on one or more of the blocks of the blocks and developing the others for residential use. To the extent necessary, the public parking will be sized to accommodate beach access via North Shore Open Space Park and/or other functions which might be appropriate. . . . Policy 3.1 of the Conservation/Coastal Zone Management Element of the Plan provides following: Those public access areas including street ends, municipal parking facilities and municipal parks along coastal waters will be maintained (See Figures VII-2 and VII-5 in the Recreation and Open Space Element) or redesigned to provide greater public access to Biscayne Bay and the Atlantic Ocean beach area regardless of the land use designation of those areas. An example of the type of redesign envisioned is that planned for the parking lost on blocks located to the west of the North Shore Open Space Park. It is envisioned that there blocks will be redeveloped with public access beach parking at grade level and residential in air rights above and/or with parking decks on one or more blocks and with residential on the other blocks. While the specific manner in which the parking spaces now available in Areas 16a and 16b will be replaced are not established, Policy 3.1 specifically requires that all municipal parking "be maintained." The Policy then provides an example of when existing parking will "be maintained" and that example is the modification of Areas 16a and 16b. This policy is sufficient to prevent the elimination of parking that Petitioners argue will occur as a result of FLUM Changes 16a and 16b. The evidence failed to prove that access to beaches or the Park will be reduced as a result of FLUM Changes 16a or 16b. The evidence also failed to prove that FLUM Changes 16a and 16b are dependent upon use of the proceeds from the sale of land in these areas to enhance the Park. See findings of fact 119 through 121.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding the Adopted Amendments in compliance and dismissing the Second Amended Petition. DONE AND ENTERED this 30th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1997. COPIES FURNISHED: Stephen T. Maher, Esquire Stephen T. Maher, P.A. 201 South Biscayne Boulevard Suite 1500 Miami, Florida 33131 Richard Grosso, Esquire Post Office Box 19630 Plantation, Florida 32318 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Max T. Holtzman, Assistant City Attorney City of Miami Beach Office of the City Attorney 1700 Convention Center Drive Fourth Floor Miami Beach, Florida 33139 Earl G. Gallop, Esquire Teresa J. Urda, Esquire Earl G. Gallop and Associates, P.A. Post Office Box 330090 Coconut Grove, Florida 33233-0090 The Honorable Seymour Gelber Mayor, City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, General Counsel Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
