08-003614GM Department Of Community Affairs vs. Miami-Dade County Status: Closed Recommended Order on Monday, May 11, 2009.

Summary: The County`s adoption of Ordinance 08-44 (Lowe`s Amendment) is not in compliance. The County`s adoption of Ordinance No. 08-45 is in compliance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

and )

)

KAREN ESTY, BARRY WHITE, )

NATIONAL PARKS CONSERVATION )

ASSOCIATION, and 1000 FRIENDS )

OF FLORIDA, INC., )

)

Intervenors, )

)

)

vs. ) Case No. 08-3614GM

)

MIAMI-DADE COUNTY, )

)

Respondent, )

and )

)

DAVID BROWN and LOWE'S HOME )

CENTERS, INC., )

)

Intervenors. )

)

)

RECOMMENDED ORDER

The final hearing in this case was held on December 8

through 12, 2008, and January 28 through 30, 2009, in Miami,

Florida, before Bram D.E. Canter, Administrative Law Judge of

the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner Department of Community Affairs:

Shaw P. Stiller, Esquire

S. Dean Bunton, Esquire

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Intervenors Barry White and Karen Esty:

Michael A. Pizzi, Jr., Esquire

15271 Northwest 60th Avenue

Suite 206A

Miami Lakes, Florida 33014-2433

For Intervenors National Parks Conservation Association and

1000 Friends of Florida, Inc.:

Richard Grosso, Esquire

Robert N. Hartsell, Esquire

Everglades Law Center, Inc.

Shepard Broad Law Center

3305 College Avenue

Fort Lauderdale, Florida 33314-7721

For Respondent Miami-Dade County:

Dennis A. Kerbel, Esquire

Assistant County Attorney

Stephen P. Clark Center

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

For Intervenor David Brown:

Linda Loomis Shelly, Esquire

Karen A. Brodeen, Esquire

Fowler White Boggs Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302-3240

For Intervenor Lowe’s Home Centers, Inc.:

Martha Harrell Chumbler, Esquire

Daniel Hernandez, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

Tallahassee, Florida 32302-0190

and

Thomas E. Warner, Esquire

Carlton Fields, P.A.

Post Office Box 150

West Palm Beach, Florida 33402-0150

STATEMENT OF THE ISSUE

The issue in this case is whether the amendments to Miami-

Dade County’s Comprehensive Development Master Plan (CDMP),

adopted through Ordinance Nos. 08-44 and 08-45, are “in

compliance” as that term is defined in Section 163.3184(1)(b),

Florida Statutes (2008). 1

PRELIMINARY STATEMENT

On April 24, 2008, Miami-Dade County adopted Ordinance No.

08-44 (Lowe’s Amendment) and Ordinance No. 08-45 (Brown

Amendment) to change the future land use designation of certain

lands on the Land Use Map and to expand the County’s Urban

Development Boundary to include the re-designated lands. The

Miami-Dade County Mayor Alvarez vetoed the two ordinances, but

the Board of County Commissioners voted to override the veto on

May 6, 2008.

The adopted amendments were sent to the Department of

Community Affairs for its compliance review. On July 18, 2008,

the Department issued its Notice and Statement of Intent to find

the amendments not in compliance. The Department then commenced

this administrative proceeding on July 22, 2008, by filing a

Petition for Formal Administrative Hearing at DOAH.

Lowe’s Home Centers, Inc., and David Brown filed Petitions

for Leave to Intervene in support of the County’s action, which

were granted. National Parks Conservation Association (NPCA)

and 1000 Friends of Florida, Inc. (1000 Friends) were initially

denied leave to intervene but, upon filing an Amended Petition,

were granted leave to intervene in support of the Department.

Barry White and Karen Esty also filed for and were granted leave

to intervene in support of the Department.

Michael Hatcher, Friends of Redland, and the Urban

Environmental League were granted leave to intervene in support

of the Department, but withdrew their petitions before the final

hearing.

At the final hearing the Department presented the testimony

of Mark Woerner, Chief, Metropolitan Planning Section, Miami-

Dade Planning and Zoning Department; Manuel Armada, Chief,

Planning Research Section, Miami-Dade Planning and Zoning

Department; Carolyn Dekle, Executive Director, South Florida

Regional Planning Council; and Mike McDaniel, Chief, Office of

Comprehensive Planning, Department of Community Affairs. The

Department’s Exhibits 3 through 8, 10, 11, 16 through 21, 26,

and 33 through 35 were admitted into evidence.

1000 Friends and NPCA presented the testimony of Kahlil

Kettering, Biscayne Restoration Program Analyst for NPCA; and

Charles Pattison, President and Executive Director of 1000

Friends. Intervenors’ Exhibit 33 was admitted into evidence.

Esty and White testified on their own behalves, but did not

offer any exhibits.

Miami-Dade County called no witnesses. County Exhibit 11

was admitted into evidence.

David Brown testified on his own behalf and also presented

the testimony of Edward Swakon, EAS Engineering, Inc.;

Rick Warner, Warner Real Estate Advisors; and Roger Wilburn,

Plan Forward. Brown Exhibits 1, 8, 9, 12 through 16, 19, 24,

33, 36c, 40, 42e, 44, 45, 49, 51, and 56 were admitted into

evidence.

Lowe’s presented the testimony of Jenna Santangelo,

Environmental Services, Inc.; Alberto Torres, Holland & Knight;

and W. Russ Weyer, Fishkind & Associates. Lowe’s Exhibits 1, 3,

4, 6, 14 through 16, 18, 26 through 28, 33, and 34 were admitted

into evidence.

Official recognition was taken of numerous statutes, rules,

County ordinances, policy statements, and the Strategic Regional

Policy Plan for South Florida. A copy of these documents was

placed in the record.

The 10-volume Transcript of the final hearing was filed

with DOAH. All parties except Intervenors Esty and White filed

timely Proposed Recommended Orders, which were carefully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the state land planning agency and is

statutorily charged with the duty to review amendments to local

comprehensive plans and to determine whether the amendments are

“in compliance,” pursuant to Section 163.3184, Florida Statutes.

2. The County is a political subdivision of the State and

has adopted a local comprehensive plan that the County amends

from time to time.

3. 1000 Friends is a Florida not-for-profit corporation

that maintains its headquarters in Tallahassee, Florida. Its

corporate purpose is to ensure the fair and effective

implementation of the Growth Management Act, Chapter 163, Part

II, Florida Statutes, through education, lobbying, research and

litigation. 1000 Friends has approximately 3,500 members, 174

of whom live in the County.

4. NPCA is a foreign, not-for-profit corporation that is

registered to do business in Florida. Its headquarters are in

Washington, D.C. It has a branch office in Hollywood, Broward

County, Florida. NPCA’s purpose is to protect and preserve

national parks, including Everglades National Park. NPCA has

approximately 340,000 members, 1,000 of whom live in the County.

5. Barry White and Karen Esty are residents of the County.

6. Lowe’s is a for-profit corporation that owns and

operates a business in the County.

7. David Brown, along with his father and brother, is a

co-applicant for the Brown amendment.

For the purpose of this Recommended Order, the Department

and the Intervenors aligned with the Department will be referred

to, collectively, as Petitioners.

Standing

8. Lowe’s filed the application with the County that

resulted in Ordinance No. 08-44 (Lowe’s Amendment). Lowe’s

submitted comments to the County concerning the Lowe’s Amendment

during the period of time from the County’s transmittal of the

amendment to the County’s adoption of the amendment.

9. Brown filed the application with the County that

resulted in Ordinance No. 08-45 (Brown Amendment). Brown

resides in the County. Brown is a manager/member of BDG Kendall

172, LLC, which has a contract to purchase the larger of the two

parcels on the application site. Brown is also a manager/member

of BDG Kendall 162, LLC, which owns and operates a business in

Miami-Dade County. Brown submitted comments to the County at

the transmittal and adoption hearings.

10. 1000 Friends submitted comments to the County during

the period of time from the transmittal of the amendments to

their adoption. 1000 Friends presented its comments to the

County on behalf of its members who reside in the County.

11. 1000 Friends does not own property or maintain an

office in the County.

12. 1000 Friends does not pay local business taxes in the

County and did not show that it is licensed to conduct a

business in the County.

13. 1000 Friends has engaged in fundraising, lobbying, and

litigation in the County. Its activities include efforts to

promote growth management, affordable housing, and Everglades

restoration.

14. 1000 Friends did not show that its activities in the

County subject it to the provisions of the CDMP.

15. NPCA submitted comments to the County during the

period of time from the transmittal of the amendments to their

adoption. NPCA presented its comments to the County on behalf

of NPCA members who reside in the County.

16. NPCA does not own property or maintain an office in

the County.

17. No evidence was presented to show that NPCA pays

business taxes in the County or that it is licensed to conduct

business in the County.

18. NPCA did not show that its activities in the County

subject it to the provisions of the CDMP.

19. Barry White and Karen Esty are residents of the

County. They submitted comments to the County regarding the

amendments during the period of time from the transmittal of the

amendments to their adoption.

The Amendment Adoption Process

20. The applications which resulted in the Lowe’s and

Brown Amendments were submitted to the County during the

April 2007 plan amendment cycle.

21. The County’s review process for comprehensive plan

amendments includes a public hearing before the community

council which has jurisdiction over the area of the County where

the affected lands are located. Following the public hearings

on the proposed Lowe’s and Brown Amendments, the community

councils recommended that the Board of County Commissioners

approve the amendments.

22. The County’s Planning Advisory Board also reviews

proposed amendments before the transmittal and adoption

hearings. Following public hearings on the proposed Lowe’s and

Brown Amendments, the Planning Advisory Board recommended that

the Board of County Commissioners approve the amendments for

transmittal and for adoption.

23. The County planning staff recommended that the

proposed amendments be denied and not transmitted to the

Department. The principal objection of the planning staff was

that the expansion of the Urban Development Boundary (UDB), an

aspect of both proposed amendments, was unjustified. In

November 2007, the Board of County Commissioners voted to

transmit the amendments to the Department.

24. The Department reviewed the proposed amendments and

issued its Objections, Recommendations, and Comments (ORC)

Report on February 26, 2008. In the ORC Report, the Department

stated that expanding the UDB would be internally inconsistent

with the CDMP because the need for the expansion had not been

demonstrated. In addition the Department determined that the

Lowe’s Amendment was inconsistent with CDMP policies regarding

the protection of wetlands, and the Brown Amendment was

inconsistent with CDMP policies regarding the protection of

agricultural lands.

25. When the amendments came before the Board of County

Commissioners after the ORC Report in March 2008, the County

planning staff recommended that the amendments be denied,

repeating its belief that the expansion of the UDB would be

inconsistent with the CDMP.

26. Under the County’s Code of Ordinances, an expansion of

the UDB requires approval by a two-thirds vote of the Board of

County Commissioners. The County adopted the amendments through

Ordinances No. 08-44 and 08-45 on April 24, 2008.

27. On April 30, 2008, the Mayor Carlos Alvarez vetoed the

ordinances, citing inconsistencies with the UDB policies of the

CDMP. His veto was overridden by a two-thirds vote of the Board

of County Commissioners on May 6, 2008.

28. On July 18, 2008, the Department issued its Statement

of Intent to Find Comprehensive Plan Amendments Not in

Compliance.

The Lowe’s Amendment

29. The Lowe’s Amendment site consists of two parcels

located in close proximity to the intersection of Southwest 8th

Street, also known as Tamiami Trail, and Northwest 137th Avenue.

The easternmost parcel, Parcel A, is 21.6 acres. The adjacent

parcel to the west, Parcel B, is 30.1 acres. Neither parcel is

currently being used.

30. About 50 percent of both Parcels A and B are covered

by wetlands. The wetlands are partially drained and show

encroachment by exotic vegetation, including Melaleuca and

Australian pine. The Lowe’s site is located within the Bird

Trail Canal Basin, which the CDMP characterizes as containing

“heavily impacted, partially drained wetlands.”

31. Both Parcels A and B are currently designated Open

Land under the CDMP, with a more specific designation as Open

Land Subarea 3 (Tamiami-Bird Canal Basins), and can be used for

residences at densities of up to one unit per five acres,

compatible institutional uses, public facilities, utility and

communications facilities, certain agricultural uses,

recreational uses, limestone quarrying, and ancillary uses.

32. East of the Lowe’s site is another parcel owned by

Lowe’s that is designated Business and Office and is within the

UDB. North and west of the Lowe’s site is Open Land. The

Lowe’s site is bordered on the south by Tamiami Trail, a six-

lane road. Across Tamiami Trail is land designated Business and

Office.

33. The Lowe’s amendment would reclassify Parcel A as

Business and Office and Parcel B as Institution, Utilities, and

Communications. The Lowe’s Amendment would also extend the UDB

westward to encompass Parcels A and B.

34. The Business and Office designation allows for a wide

range of sales and service activities, as well as compatible

residential uses. However, the Lowe’s amendment includes a

restrictive covenant that prohibits residential development.

35. The Institution, Utilities, and Communications land

use designation allows for “the full range of institution,

communications and utilities,” as well as offices and some small

businesses.

36. Parcel A is subject to another restrictive covenant

that provides that Lowe’s shall not seek building permits for

the construction of any buildings on Parcel A without having

first submitted for a building permit for the construction of a

home improvement store.

37. The use of Parcel B is restricted to a school, which

can be a charter school. If a charter school is not developed

on Parcel B, the parcel will be offered to the Miami-Dade County

School Board. If the School Board does not purchase Parcel B

within 120 days, then neither Lowe’s nor its successors of

assigns have any further obligations to develop a school on

Parcel B.

The Brown Amendment

38. The Brown Amendment involves four changes to the CDMP:

and Office”; an expansion of the UDB to encompass the Brown

site; a prohibition of residential uses on the site; and a

requirement that the owner build an extension of SW 172nd Avenue

through the site.

39. The Agriculture designation allows agricultural uses

and single family residences at a density of one unit per five

acres. The proposed Business and Office land use designation

allows a wide range of commercial uses, including retail,

professional services, and office. Residential uses are also

allowed, but the Declaration of Restrictions adopted by the

County with the Brown Amendment prohibits residential

development.

40. The Brown Amendment site is 42 acres. Some of the

site is leased to a tenant farmer who grows row crops. The

balance is vacant and not in use.

41. The Brown site has a triangular shape. Along the

sloping northern/eastern boundary is Kendall Drive. Kendall

Drive is a major arterial roadway, a planned urban corridor, and

part of the state highway system. On the site's western

boundary is other agricultural land. There is commercial

development to the east. Along the southern boundary is the

1200-unit Vizcaya Traditional Neighborhood Development, which is

within the UDB.

42. The entirety of the Brown site has been altered by

farming activities. In the southwest portion of the site is a

four-acre, degraded wetland that is part of a larger 28-acre

wetland located offsite. The wetland is not connected to any

state waters and the Army Corps of Engineers has not asserted

jurisdiction over it. The wetland is not on the map of “Future

Wetlands and CERP Water Management Areas” in the Land Use

Element of the CDMP.

43. The dominant plants in the wetland are exotic species.

There is no evidence that any portion of the site is used by any

threatened or endangered species.

The Urban Development Boundary and Urban Expansion Area

44. The principal dispute in this case involves the

application of Policies LU-8F and LU-8G of the CDMP regarding

the expansion of the UDB. Policy LU-8F directs that adequate

supplies of residential and nonresidential lands be maintained

in the UDB. If the supply of lands becomes inadequate, Policy

LU-8G addresses where the expansion of the UDB should occur.

45. The UDB is described in the Land Use Element:

The Urban Development Boundary (UDB) is

included on the LUP map to distinguish the

area where urban development may occur

through the year 2015 from areas where it

should not occur. Development orders

permitting urban development will generally

be approved within the UDB at some time

through the year 2015 provided that level-

of-service standards for necessary public

facilities will be met. Adequate countywide

development capacity will be maintained

within the UDB by increasing development

densities or intensities inside the UDB, or

by expanding the UDB, when the need for such

change is determined to be necessary through

the Plan review and amendment process.

46. The UDB promotes several planning purposes. It

provides for the orderly and efficient construction of

infrastructure, encourages urban infill and redevelopment,

discourages urban sprawl, and helps to conserve agricultural and

environmentally-sensitive lands.

47. The County only accepts applications for amendments

seeking to expand the UDB once every two years, unless they are

directly related to a development of regional impact. In

contrast, Chapter 163, Florida Statutes, allows two amendment

cycles in a calendar year,

48. Amendments that would expand the UDB must be approved

by at least two-thirds of the total membership of the Board of

County Commissioners. Other types of amendments only require a

majority vote of the quorum.

49. Outside the UDB are County lands within the relatively

small Urban Expansion Area (UEA), which is described in the CDMP

as “the area where current projections indicate that further

urban development beyond the 2015 UDB is likely to be warranted

some time between the year 2015 and 2025.”

50. The UEA consists of lands that the CDMP directs “shall

be avoided” when the County is considering adding land to the

UDB. They are (1) future wetlands, (2) lands designated

Agriculture, (3) hurricane evacuation areas, and (4) lands that

are part of the Comprehensive Everglades Restoration Plan. The

“future” wetlands on this list are existing wetland areas

delineated by the County on Figure 14 of the Land Use Element.

51. A far larger area of the County, mostly west of the

UDB and UEA, consists of lands that the CDMP directs “shall not

be considered” for inclusion in the UDB. These are water

conservation areas, lands associated with Everglades National

Park, the Redland agricultural area, and wellfield protection

areas.

Policy LU-8F

52. Policy LU-8F of the Land Use Element provides:

The Urban Development Boundary (UDB) should

contain developable land having capacity to

sustain projected countywide residential

demand for a period of 10 years after

adoption of the most recent Evaluation and

Appraisal Report (EAR) plus a 5-year surplus

(a total 15-year Countywide supply beyond

the date of EAR adoption). The estimation

of this capacity shall include the capacity

to develop and redevelop around transit

stations at the densities recommended in

policy LU-7F. The adequacy of non-

residential land supplies shall be

determined on the basis of land supplies in

subareas of the County appropriate to the

type of use, as well as the Countywide

supply within the UDB. The adequacy of land

supplies for neighborhood- and community-

oriented business and office uses shall be

determined on the basis of localized subarea

geography such as Census Tracts, Minor

Statistical Areas (MSAs) and combinations

thereof. Tiers, Half-Tiers and combinations

thereof shall be considered along with the

Countywide supply when evaluating the

adequacy of land supplies for regional

commercial and industrial activities .

53. There is no further guidance in the CDMP for

determining the “adequacy of land supplies” with respect to

nonresidential land uses.

54. Neither Chapter 163, Florida Statutes, nor Florida

Administrative Code Chapter 9J-5 requires that local governments

use a particular methodology to determine the adequacy of

nonresidential land supplies.

55. The County’s usual methodology for determining need is

described in the Planning Considerations Report that the County

planning staff prepared for the 2007 amendment cycle. A report

like this one is prepared by the staff for each amendment cycle

to evaluate the adequacy of the CDMP to accommodate growth and

to evaluate pending amendment applications.

56. The County compares a proposed use to its immediate

surroundings and the broader area of the County in which the

proposed use is located. The basic geographic unit used in the

County’s need analysis is the Minor Statistical Area (MSA).

Larger planning areas, called Tiers, are groupings of MSAs. The

County is divided into 32 MSAs and four Tiers.

57. The Lowe’s Amendment site is in MSA 3.2, but it is on

the border with MSA 6.1, so the two MSAs were consolidated for

the County’s need analysis regarding the Lowe’s Amendment, even

though MSA 3.2 is in the North Central Tier and MSA 6.1 is in

the South Central Tier.

58. The Brown Amendment is in MSA 6.2, but it is close to

MSA 6.1, so the County combined the two MSAs for its need

analysis for the Brown Amendment. Both MSAs are in the South

Central Tier.

59. The Planning Considerations Report contains a 2007

inventory of commercial land. The only vacant land used in the

analysis of available commercial land supply was land zoned for

business, professional office, office park, or designated

Business and Office on the Land Use Map.

60. Although it is stated in the Planning Considerations

Report that lands zoned or designated for industrial uses are

often used for commercial purposes, this situation was not

factored into the calculation of the available supply of

commercial lands. The County also excluded any supply that

could be gained from the redevelopment of existing sites.

Petitioners contend, therefore, that the County’s need for

commercial land is less than the planning staff calculated in

the Planning Considerations Report.

61. On the other hand, Respondents contend that the

County’s need for commercial land is greater than the planning

staff calculated in the Planning Considerations Report because

the County planning staff did not apply a “market factor” for

commercial lands as it does for residential lands.

62. A market factor is considered by some professional

planners to be appropriate for commercial land uses to account

for physical constraints and other factors that limit the

utilization of some vacant parcels, and to prevent situations

where the diminished supply of useable parcels causes their

prices to rise steeply. The CDMP recognizes the problem in

stating that:

impediments can arise to the maximum

utilization of all lands within the

boundaries [of the UDB]. In some urbanized

areas, it may be difficult to acquire

sufficiently large parcels of land. In

other areas, neighborhood opposition to

proposed developments could alter the

assumed density and character of a

particular area.

63. The County used a market factor of 1.5 (50 percent

surplus) to determine the need for residential land. The County

did not use a market factor in its analysis of the need for

commercial land. The Department’s expert planning witness, Mike

McDaniel, testified that the Department generally supports use

of a 1.25 allocation (25 percent surplus).

64. The County’s most recent UDB expansions for

nonresidential uses (other than Lowe’s and Brown) were the

Beacon Lakes and Shoppyland amendments in 2002. The Beacon

Lakes and Shoppyland UDB expansions were approved despite the

fact that the County did not project a need for more industrial

land within the planning horizon. The need determinations for

these amendments were not based on the use of a market factor,

but on a percieved2`` need for the particular land uses proposed

– warehouses and related industrial uses on large parcels to

serve the Miami International Airport and the Port of Miami.

65. The evidence indicates that the County’s exclusion

from its analysis of industrial lands that can be used for

commercial purposes, and additional commercial opportunities

that could be derived from the redevelopment of existing sites,

is offset by the County’s exclusion of a market factor. If the

supply of commercial land had been increased 25 percent to

account for industrial lands and redevelopment, it would have

been offset by a 1.25 market factor on the demand side. The

calculations made by the County in its Planning Considerations

Report would not have been materially different.

66. The Planning Considerations Report analyzes commercial

demand (in acres) through the years 2015 and 2025, and

calculates a “depletion year” by MSA, Tier, and countywide. A

depletion year is the year in which the supply of vacant land is

projected to be exhausted.

67. If the depletion year occurs before 2015 (the planning

horizon for the UDB), that is an indication that additional

lands for commercial uses might be needed.

68. The County planning staff projected a countywide

depletion year of 2023, which indicates there are sufficient

commercial lands in the County through the planning horizon of

2015. The County then projected the need for commercial land by

MSA and Tier.

69. MSA 3.2, where the Lowe’s site is located, has a

depletion year of 2025, but when averaged with MSA 6.1’s

depletion years of 2011, results in an average depletion year of

2018. The North Central Tier, in which the Lowe’s Amendment

site is located, has a depletion year of 2023.

70. The County’s depletion year analysis at all three

levels, MSA, Tier, and countywide, indicates no need for more

commercial lands in the area of the Lowe’s site.

71. MSA 6.2, where the Brown site is located, has a

depletion year of 2017, but when combined with MSA 6.1’s

depletion of 2011, results in an average depletion year for the

two MSAs is 2014. The South Central Tier, in which the Brown

Amendment site is located, has a depletion year of 2014.

72. Therefore, the County’s depletion year analysis, at

the MSA and Tier levels, indicates a need for more commercial

lands in the area of the Brown site.

73. The County also analyzed the ratio of commercial acres

per 1,000 persons by MSA, Tier, and county-wide. The countywide

ratio is not a goal that the County is seeking to achieve for

all Tiers and MSAs. However, if a Tier or MSA shows a ratio

substantially lower than the countywide ratio, that MSA or Tier

might need more commercial lands.

74. The countywide ratio of commercial lands per 1,000

persons is projected to be 6.1 acres per 1,000 persons in 2015.

MSA 3.2, in which the Lowe’s site is located, has a ratio of

11.3 acres per 1,000 persons. MSA 6.1 has a ratio of 2.6 acres.

The average for the two MSAs is 6.95 acres. The ratio for all

of the North Central Tier is 6.3 acres per 1,000 persons.

75. Therefore, a comparison of the countywide ratio with

the MSAs and Tier where the Lowe’s site is located indicates

there is no need for additional commercial lands in the area of

the Lowe’s site.

76. MSA 6.2, where the Brown site is located, has a ratio

of 4.1 acres per 1,000 persons. When combined with MSA 6.1’s

ratio of 2.6 acres, the average for the two MSAs is 3.35 acres.

The ratio for all of the South Central Tier is 4.5 acres per

1,000 persons. Therefore, a comparison with the countywide

ratio of 6.1 acres indicates a need for additional commercial

lands in the area of the Brown site.

77. The County’s need analysis treated the Kendall Town

Center as vacant (i.e. , available) commercial land, but the

Kendall Town Center is approved and under construction. If the

Kendall Town Center had been excluded, the County’s projected

future need for commercial land in the area of the Brown site

would have been greater.

78. The Planning Considerations Report does not discuss

parcel size in its commercial need analysis. Lowe’s contends

that the County should have considered whether there is a need

site. Policy LU-8F refers only to the need to consider (by

“Tiers, Half-Tiers and combinations thereof”) the adequacy of

land supplies for “regional commercial activities .”

79. Lowe’s planning expert testified that there are few

undeveloped commercial parcels in MSAs 3.2 and 6.1 that are ten

acres or more, or could be aggregated with contiguous vacant

parcels to create a parcel bigger than ten acres.

80. Lowe’s submitted two market analyses for home

improvement stores, which conclude that there is a need for

another home improvement store in the area of the Lowe’s site.

81. The market analyses offered by Lowe’s differ from the

County’s methodology, which focuses, not on the market for a

particular use, but on the availability of commercial lands in

appropriate proportion to the population. Even when it is

reasonable for the County to consider the need for a unique use,

the County’s focus is on serving a general public need, rather

than on whether a particular commercial use could be profitable

in a particular location.

82. Some of the assumptions used in the market analyses

offered by Lowe’s were unreasonable and biased the results

toward a finding of need for a home improvement store in the

study area. The more persuasive evidence shows that there is no

need for more commercial land, and no need for a home

improvement store, in the area of the Lowe’s site.

83. Lowe’s Parcel B is proposed for use as a school. The

elementary, middle and high schools serving the area are over-

capacity. Lowe’s expects the site to be used as a charter high

school.

84. Using an inventory of lands that was prepared by the

County staff, Lowe’s planning expert investigated each parcel of

land located within MSAs 3.2 and 6.1 that was over seven acres 2

and determined that no parcel within either MSA was suitable for

development as a high school.

85. The record is unclear about how the Lowe’s Amendment

fits into the plans of the County School Board. The proposition

that there are no other potential school sites in the area was

not firmly established by the testimony presented by Lowe’s.

The need shown for the school site on Parcel B does not overcome

the absence of demonstrated need for the Business and Office

land use on Parcel A.

86. It is beyond fair debate that that the Lowe’s

Amendment is inconsistent with Policy LU-8F.

87. The County’s determination that the Brown Amendment is

consistent with Policy LU-8F is fairly debatable.

Policy LU-8G

88. Policy LU-8GA(i) identifies lands outside the UDB that

“shall not be considered for inclusion in the UDB. Policy LU-

(1) future wetlands, (2) lands designated Agriculture, (3)

hurricane evacuation areas, and (4) lands that are part of the

Comprehensive Everglades Restoration Plan.

89. A peculiarity of the UEA is that it is composed

entirely of lands that “shall be avoided” when the County

considers adding lands to the UDB. The Department contends that

“shall be avoided” means, in this context, that the County must

make “a compelling showing that every other option has been

exhausted” before the UDB can be expanded. However, the CDMP

does not express that specific intent. The CDMP does not

provide any direct guidance about how compelling the

demonstration must be to expand the UDB.

90. Policies LU-8F and LU-8G appear to call for a

balancing approach, where the extent of the need for a

particular expansion must be balanced against the associated

impacts to UEA lands and related CDMP policies. The greater the

needs for an expansion of the UDB, the greater are the impacts

that can be tolerated. The smaller the need, the smaller are

the tolerable impacts.

91. Because the need for the Lowe’s Amendment was not

shown, the application of the locational criteria in Policy LU-

8G is moot. However, the evidence presented by Lowe’s is

addressed here.

92. Within the meaning of Policy LU-8G(ii)(a), the

wetlands that “shall be avoided” are those wetlands that are

depicted on the Future Wetlands Map part of the Land Use Element

of the CDMP. About 50 percent of the Lowes site is covered by

wetlands that are on the Future Wetlands Map.

93. Petitioners speculated that the construction of a

Lowe’s home improvement store and school on the Lowe’s site

could not be accomplished without harm to the wetlands on the

site, but they presented no competent evidence to support that

proposition. The wetland protections afforded under the

environmental permitting statutes would not be affected by the

Lowe’s Amendment.

94. Nevertheless, this is a planning case, not a wetland

permitting case. It is a well-recognized planning principle

that lands which have a high proportion of wetlands are

generally not suitable for land use designations that allow for

intense uses. The Lowe’s Amendment runs counter to this

principle.

95. Policy LU-8F(iii) identifies areas that “shall be

given priority” for inclusion in the UDB:

a) Land within Planning Analysis Tiers

having the earliest projected supply

depletion year;

b) Lands contiguous to the UDB;

c) Locations within one mile of a planned

urban center or extraordinary transit

service; and

d) Lands having projected surplus service

capacity where necessary services can be

readily extended.

96. The Lowe’s site satisfies all but the first criterion.

The Lowe’s site is in the Tier with the latest projected supply

depletion year.

97. It is beyond fair debate that that the Lowe’s

Amendment is inconsistent with Policy LU-8G.

98. Because a reasonable showing of need for the Brown

Amendment was shown, it is appropriate to apply the locational

criteria of Policy LU-8G. The Brown Amendment would expand the

UDB into an area of the UEA that is designated Agriculture. The

single goal of the CDMP’s Land Use Element refers to the

CDMP refers elsewhere to the importance of protecting “viable

agriculture.” Brown argued that these provisions indicate that

the County did not intend to treat all agricultural lands

similarly, and that agricultural activities like those on the

Brown site, that are neither unique nor viable, were not

intended to be preserved. Petitioners disagreed.

99. The County made the Redland agricultural area one of

the areas that “shall not be considered” for inclusion in the

UDB. Therefore, the County knew how to preserve “unique”

agricultural lands and prevent them from being re-designated and

placed in the UDB.

100. The only evidence in the record about the economic

“viability” of the current agricultural activities on the Brown

site shows they are marginally profitable, at best.

101. The Brown site is relatively small, has a triangular

shape, and is wedged between a major residential development and

an arterial roadway, which detracts from its suitability for

agricultural operations. These factors also diminish the

precedent that the re-designation of the Brown site would have

for future applications to expand the UDB.

102. The Brown site satisfies all of the criteria in

Policy LU-8G(iii) to be given priority for inclusion in the UDB.

103. The County’s determination that the Brown Amendment

is consistent with Policy LU-8G is fairly debatable.

Policy EDU-2A

104. Policy EDU-2A of the CDMP states that the County

shall not purchase school sites outside the UDB. It is not

clear why this part of the policy was cited by Petitioners,

since the Lowe’s Amendment would place Parcel B inside the UDB.

105. Policy EDU-2A also states that new elementary schools

“should” be located at 1/4 mile inside the UDB, new middle

schools “should” be located at least 1/2 mile inside the UDB,

and new high schools “should” be located at least one mile

inside the UDB. The policy states further that, “in

substantially developed areas,” where conforming sites are not

available, schools should be placed as far as practical from the

UDB.

106. Petitioners contend that the Lowe’s Amendment is

inconsistent with Policy EDU-2A because Parcel B, the school

site in the Lowe’s Amendment, would be contiguous to the UDB if

the Lowe’s Amendment were approved.

107. However, when a policy identifies circumstances that

allow for an exception to a stated preference, it is necessary

for challengers to show that the exceptional circumstances do

not exist. It was Petitioners’ burden to demonstrate that there

were conforming school sites farther from the UDB in the area of

the Lowe’s site. Petitioners did meet their burden.

108. The County’s determination that the Lowe’s Amendment

is consistent with Policy EDU-2A is fairly debatable.

Urban Sprawl

109. 1000 Friends and NPCA allege that the Brown and

Lowe’s Amendments would encourage the proliferation of urban

sprawl. The Department did not raise urban sprawl as an “in

compliance” issue.

110. Florida Administrative Code Rule 9J-5.006(5)(g)

identifies 13 “primary indicators” of urban sprawl. The

presence and potential effects of multiple indicators is to be

considered to determine “whether they collectively reflect a

failure to discourage urban sprawl.” Fla. Admin. Code R. 9J-

5.006(5)(d).

111. Indicator 1 is designating for development

“substantial areas of the jurisdiction to develop as low-

intensity, low-density, or single use development or uses in

excess of demonstrated need.” It was found, above, that the

County had a reasonable basis to determine there was a need for

the Brown Amendment, but not for the Lowe’s Amendment.

Therefore, this indicator is triggered only by the Lowe’s

Amendment.

112. Indicator 2 is designating significant amounts of

urban development that leaps over undeveloped lands. The facts

do not show that undeveloped lands were leaped over for either

of the amendments.

113. Indicator 3 is designating urban development “in

radial, strip, isolated, or ribbon patterns.” The Lowe’s and

Brown Amendments do not involve radial or isolated development

patterns. What would constitute a “ribbon” pattern was not

explained. Not every extension of existing commercial uses

constitutes strip sprawl Other factors need to be considered.

For example, both the Lowe’s and Brown sites are at major

intersections where more intense land uses are commonly located.

Under the circumstances shown in this record, this indicator is

not triggered for either amendment.

114. Indicator 4 is premature development of rural land

that fails to adequately protect and conserve natural resources.

This indicator is frequently cited by challengers when an

amendment site contains wetlands or other natural resources,

without regard to whether the potential impact to these

resources has anything to do with sprawl.

115. In the area of the Lowe’s site, the UDB generally

divides urbanized areas from substantial wetlands areas that

continue west to the Everglades. The Lowe’s Amendment intrudes

into an area dominated by wetlands and, therefore, its potential

to affect wetlands is an indication of sprawl.

116. In the area of the Brown Amendment, the UDB generally

separates urbanized areas from agricultural lands that already

have been substantially altered from their natural state. The

Brown Amendment invades an agricultural area, not an area of

natural resources. Therefore, the potential impacts of the

Brown Amendment on the small area of degraded wetlands on the

Brown site do not indicate sprawl.

117. Indicator 5 is failing to adequately protect adjacent

agricultural areas and activities. Because this indicator

focuses on “adjacent” agricultural areas, it is not obvious that

it includes consideration of effects on the amendment site

itself. If this indicator applies to the cessation of

agricultural activities on the Brown site, then the Brown

Amendment triggers this primary indicator. If the indicator

applies only to agricultural activities adjacent to the Brown

site, the evidence was insufficient to show that this indicator

is triggered.

118. Indicators 6, 7, and 8 are related to the orderly and

efficient provision of public services and facilities. Urban

sprawl is generally indicated when new public facilities must be

created to serve the proposed use. Petitioners did not show

that new public facilities must be created to serve the Lowe’s

or Brown sites. The proposed amendments would maximize the use

of existing water and sewer facilities. Petitioners did not

show that the amendments would cause disproportionate increases

in the costs of facilities and services.

119. Indicator 9 is failing to provide a clear separation

between rural and urban uses. The Lowe’s Amendment would create

an irregular and less clear separation between urban and rural

uses in the area and, therefore, the Lowe’s Amendment triggers

this indicator. The Brown Amendment does not trigger this

indicator because of it is situated between the large Vizcaya

development and Kendall Drive, a major arterial roadway. The

Brown Amendment would create a more regular separation between

urban and rural uses in the area.

120. Indicator 10 is discouraging infill or redevelopment.

The CDMP delineates an Urban Infill Area (UIA) that is generally

located east of the Palmetto Expressway and NW/SW 77th Avenue.

Petitioners did not demonstrate that the Brown and Lowe’s

Amendments discourage infill within the UIA. Petitioners did

not show how any particular infill opportunities elsewhere in

the UDB are impaired by the Lowe’s and Brown Amendments.

121. However, the expansion of the UDB would diminish, at

least to a small degree, the incentive for infill. This

indicator, therefore, is triggered to a small degree by both

amendments.

122. The CDMP promotes redevelopment of buildings that are

substandard or underdeveloped. Petitioners did not show how any

particular redevelopment opportunities are impaired by the

Lowe’s and Brown Amendments.

123. However, the expansion of the UDB would diminish, at

least to a small degree, the incentive to redevelop existing

properties. This indicator, therefore, is triggered to a small

degree by both amendments.

124. Indicator 11 is failing to encourage or attract a

functional mix of uses. Petitioners failed to demonstrate that

this primary indicator is triggered.

125. Indicator 12 is poor accessibility among linked or

related uses. No evidence was presented to show that this

indicator would be triggered.

126. Indicator 13 is the loss of “significant” amounts of

open space. These amendments do not result in the loss of

significant amounts of open space, whether measured by acres, by

the percentage of County open lands converted to other uses, or

by any specific circumstances in the area of the amendment

sites.

127. Evaluating the Lowe’s Amendment using the primary

indicators of urban sprawl and the criteria in Florida

Administrative Code Rule 9J-5.006(5)(h) through (j), it is found

by a preponderance of the evidence that the County’s adoption of

the Lowe’s Amendment fails to discourage the proliferation of

urban sprawl.

128. Evaluating the Brown Amendment using the primary

indicators of urban sprawl and the criteria in Florida

Administrative Code Rule 9J-5.006(5)(h) through (j), it is found

by a preponderance of the evidence that the County’s adoption of

the Brown Amendment does not fail to discourage the

proliferation of urban sprawl.

Land Use Analysis

129. The Department claims that the Lowe’s and Brown

Amendments are inconsistent with Florida Administrative Code

Rule 9J-5.006(2)(c), which requires that the land use element of

a comprehensive plan be based on an analysis of the amount of

land needed to accommodate projected population. The Department

believes the analyses of need presented by Lowe’s and Brown’s

consultants were not professionally acceptable.

130. Petitioners proved by a preponderance of the evidence

that there was no need for the Lowe’s Amendment. Therefore, the

Lowe’s Amendment is inconsistent with Florida Administrative

Code Rule 9J-5.006(2)(c).

131. A preponderance of competent, substantial, and

professionally acceptable evidence of need, in conformance with

and including the methodology used by the County planning staff,

demonstrated that the Brown Amendment is consistent with Florida

Administrative Code Rule 9J-5.006(2)(c). 3

Florida Administrative Code Chapter 9J-5 - Natural Resources

132. Petitioners contend the Lowe’s Amendment is

inconsistent with the provisions of Florida Administrative Code

Chapter 9J-5, which require that the land use element of every

comprehensive plan contain a goal to protect natural resources,

and that every conservation element contain goals, objectives,

and policies for the protection of vegetative communities,

wildlife habitat, endangered and threatened species, and

wetlands. Petitioners failed to prove by a preponderance of the

evidence that the CDMP does not contain these required goals,

objectives, and policies. Therefore, Petitioners failed to

prove that the Lowe’s amendment is inconsistent with these

provisions of Florida Administrative Code Chapter 9J-5. 4

The State Comprehensive Plan

133. Petitioners contend that the Lowe’s and Brown

amendments are inconsistent with several provisions of the State

Comprehensive Plan.

134. Goal (9)(a) of the State Comprehensive Plan and its

associated policies address the protection of natural systems.

Petitioners contend that only the Lowe’s Amendment is

inconsistent with this goal and its policies. For the reasons

stated previously, Petitioners showed by a preponderance of the

evidence that the County’s adoption of the Lowe’s Amendment is

inconsistent with this goal and its policies.

135. Goal (15)(a) and its associated policies address land

use, especially development in areas where public services and

facilities are available. Policy (15)(b)2. is to encourage a

separation of urban and rural uses. Because the Lowe’s

Amendment is inconsistent with Policies LU-8F and LU-8G of the

CDMP, the County’s adoption of the Lowe’s Amendment is

inconsistent with this goal and policy. For the reasons stated

above, Petitioners failed to show by a preponderance of the

evidence that the County’s adoption of the Brown Amendment is

inconsistent with this goal and its associated policies

136. Goal (16)(a) and its associated policies address

urban and downtown revitalization. Although the expansion of

the UDB diminishes the incentive to infill or redevelop,

Petitioners did not show this effect, when considered in the

context of the CDMP as a whole and the State Comprehensive Plan

as a whole, impairs the achievement of this goal and its

associated policies to an extent that the proposed amendments

are inconsistent with this goal of the State Comprehensive Plan

and its associated policies.

137. Goal (17)(a) and its associated policies address the

planning and financing of and public facilities. For the

reasons stated previously, Petitioners failed to prove by a

preponderance of the evidence that the County’s adoption of the

proposed amendments is inconsistent with this goal and its

associated policies.

138. Goal (22)(a) addresses agriculture. Policy(b)1. is

to ensure that state and regional plans are not interpreted to

permanently restrict the conversion of agricultural lands to

other uses. This policy recognizes that agricultural landowners

have the same right to seek to change the use of their lands,

and that engaging in agricultural activities is not a permanent

servitude to the general public.

139. The policies cited by Petitioners (regarding the

encouragement of agricultural diversification, investment in

education and research, funding of extension services, and

maintaining property tax benefits) are not affected by the Brown

Amendment.

140. For the reasons stated above, Petitioners failed to

prove by a preponderance of the evidence that the County’s

adoption of the Brown Amendment is inconsistent with this goal

and its associated policies.

141. Goal (25)(a) and its associated policies address plan

implementation, intergovernmental coordination and citizen

involvement, and ensuring that local plans reflect state goals

and policies. Because the Lowe’s Amendment is inconsistent with

Policies LU-8F and LU-8G of the CDMP, and was found to

contribute to the proliferation of urban sprawl, Petitioners

proved by a preponderance of the evidence that the County’s

adoption of the Lowe’s Amendment is inconsistent with this goal

and its associated policies.

142. Petitioners proved by a preponderance of the evidence

that when the State Comprehensive Plan is construed as a whole,

the County’s adoption of the Lowe’s Amendment is inconsistent

with the State Comprehensive Plan.

143. Petitioners failed to prove by a preponderance of the

evidence that when the State Comprehensive Plan is construed as

a whole, the County’s adoption of the Brown Amendment is

inconsistent with the State Comprehensive Plan..

Strategic Regional Policy Plan

144. Petitioners claim that the Lowe’s Amendment is

inconsistent with Goals 11, 12, and 20 of the Strategic Regional

Policy Plan of the South Florida Regional Planning Council

(SFRPC) and several policies associated with these goals. The

SFRPC reviewed the proposed Brown Amendment and found it was

generally consistent with the Strategic Regional Policy Plan.

145. Goal 11 and its associated policies encourage the

conservation of natural resources and agricultural lands, and

the use of existing and planned infrastructure. For the reasons

stated previously, Petitioners proved by a preponderance of the

evidence that the County’s adoption of the Lowe’s Amendment is

inconsistent with this goal and its associated policies.

146. Goal 12 and its associated policies encourage the

retention of rural lands and agricultural economy. The CDMP

encourages the retention of rural lands and agricultural

economy.

147. Because it was found that the Lowe’s Amendment was

inconsistent with Policies LU-8F and LU-8G, Petitioners proved

by a preponderance of the evidence that the County’s adoption of

the Lowe’s Amendment was inconsistent with this regional goal

and its policies.

148. Goal 20 and its associated policies are to achieve

development patterns that protect natural resources and guide

development to areas where there are public facilities. Because

it was found that there is no need for the Lowe’s Amendment and

that it constitutes urban sprawl, Petitioners proved by a

preponderance of the evidence that the County’s adoption of the

Lowe’s Amendment is inconsistent with these regional goal and

policies.

CONCLUSIONS OF LAW

149. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

163.3184(10), Florida Statutes.

Standing

150. In order to have standing to challenge a plan

amendment, a challenger must be an “affected person,” which is

defined in Section 163.3184(1)(a), Florida Statutes, as a person

who resides, owns property, or owns or operates a business

within the local government whose comprehensive plan amendment

is challenged, and who submitted comments, recommendations, or

objections to the local government during the period of time

beginning with the transmittal hearing and ending with

amendment’s adoption.

151. Based on the stipulated facts, Petitioners White and

Esty have standing as affected persons.

152. Both 1000 Friends and NPCA claim standing as

“affected persons,” on the ground that they own and operate

businesses in Dade County. However, the phrase “owns or

operates a business,” as used in the statute, refers to

activities “of a type which might make the business potentially

subject to the constraints of the local comprehensive plan.”

St. Joe Paper Co. v. Dep’t of Community. Affairs , 657 So. 2d 27,

29 (Fla. 1st DCA 1995); Potiris v. Dep’t of Cmty. Affairs , 947

So. 2d 598 (Fla. 4th DCA 2007). This essential nexus was not

established in the record by 1000 Friends or NPCA.

153. 1000 Friends and NPCA do not pay the business tax

required to operate a business in the County. They do not

allege that they are liable for non-payment of the tax or that

they are exempt from the tax. The logical conclusion is that

they do not qualify as a business in the County.

154. In general, an association has standing to sue on

behalf of its members when a substantial number of them would

otherwise have standing to sue in their own right and the

interests that the association seeks to protect are germane to

its purposes. See Fla. Home Builders Ass’n v. Dept. of Labor

and Employment Security , 412 So. 2d 351 (Fla. 1982).

155. 1000 Friends of Florida and NPCA made comments on the

Lowe’s and Brown amendments during the County’s comprehensive

plan amendment process on behalf of a substantial number of

their members who reside in the County. Lowe’s argues that this

was not sufficient for associational standing, because no

individual member of either 1000 Friends or NPCA was shown to

have presented comments to the County, so no member would have

standing as an affected person in his or her their own right.

That argument is rejected because it would mean that no person

or entity would have standing as an affected person if comments

were presented to the local government on the person’s or

entity’s behalf by a representative (such as a lawyer).

156. The use of a representative should not prevent the

standing of the person or entity being represented. For

purposes of standing, there should be no distinction in

comprehensive plan amendment cases between a corporation which

presented comments to the local government through its lawyer,

and members of an association who presented comments through

their lawyer or an officer of the association.

157. 1000 Friends and NPCA meet the requirements for

associational standing.

Burden and Standards of Proof

158. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceeding. See Young v. Department of Community

Affairs , 625 So. 2d 831 (Fla. 1993). As the parties maintaining

this action to assert that the Lowe’s and Brown amendments are

not in compliance, Petitioners have the burden of proof.

159. Section 163.3184(10)(a), Florida Statutes, provides

that, in a proceeding initiated by the Department’s finding of

not in compliance,

the local government’s determination that

the comprehensive plan or plan amendment is

in compliance is presumed to be correct.

The local government’s determination shall

be sustained unless it is shown by a

preponderance of the evidence that the

comprehensive plan or plan amendment is not

in compliance. The local government’s

determination that elements of its plans are

related to and consistent with each other

shall be sustained if the determination is

fairly debatable.

160. In Martin County v. Yusem , 690 So. 2d 1288, 1295

(Fla. 1997), the fairly debatable standard of review was

described as “a highly deferential standard requiring approval

of a planning action if reasonable persons could differ as to

its propriety.” Quoting from City of Miami Beach v. Lachman , 71

So. 2d 148, 152 (Fla. 1953), the Court stated further:

An ordinance may be said to be fairly

debatable when for any reason it is open to

dispute or controversy on grounds that make

sense or point to a logical deduction that

in no way involves its constitutional

validity.

690 So. 2d at 1295.

In Compliance

161. Amendments to local government comprehensive plans

are subject to review by the Department under Chapter 163, Part

II, to determine whether the amendments are “in compliance.”

Florida Statutes:

In compliance means consistent with the

requirements of ss. 163.3177, when a local

government adopts an educational facilities

element, 163.3178, 163.3180, 163.3191, and

163.3245, with the state comprehensive plan,

with the appropriate strategic regional

policy plan, and with chapter 9J-5, Florida

Administrative Code, where such rule is not

inconsistent with this part and with the

principles for guiding development in

designated areas of critical state concern

and with part III of chapter 369, where

applicable.

Data and Analysis

162. Plan amendments must be based upon “appropriate”

data. § 163.3177(10)(e), Fla. Stat. The analysis of

appropriate data must be professionally acceptable. However,

the Department may not evaluate whether one methodology of

analysis is better than another. Id.

163. Unfortunately, the statute’s reference to data that

is professionally acceptable assures that, in nearly every

growth management case, parties will criticize the work and

testimony of opposing expert witnesses as being not

professionally acceptable. In most cases, the disputes are over

differences of opinion that are common in all professions. Two

widely different methodologies with widely different results can

both be professionally acceptable. Therefore, rather than

pronouncing a party’s evidence as professionally unacceptable,

it is usually more appropriate to simply give less weight to the

evidence that is less persuasive. That is what the

Administrative Law Judge did in this case.

Internal Consistency

164. Subsection 163.3177(2), Florida Statutes, requires

the elements of a comprehensive plan to be internally

consistent. Plan amendments must preserve the internal

consistency of the plan. See § 163.3187(2), Fla. Stat.

165. It is beyond fair debate that that the Lowe’s

Amendment is inconsistent with Policies LU-8F and LU-8G.

166. The County’s determination that the Brown Amendment

is consistent with Policies LU-8F and LUG-8 is fairly debatable.

167. The County’s determination that the Lowe’s Amendment

is consistent with Policy EDU-2A is fairly debatable.

Urban Sprawl

168. Urban sprawl is defined in Florida Administrative Code

Rule 9J-5.03(134):

“Urban sprawl” means urban development or

uses which are located in predominantly

rural areas, or rural areas interspersed

with generally low-intensity or low-density

urban uses, and which are characterized by

one or more of the following conditions:

(a) The premature or poorly planned

conversion of rural land to other uses;

(b) The creation of areas of urban

development or uses which are not

functionally related to land uses which

predominate the adjacent area; or

(c) The creation of areas of urban

development or uses which fail to maximize

the use of existing public facilities or the

use of areas within which public services

are currently provided. Urban sprawl is

typically manifested in one or more of the

following land use or development patterns:

Leapfrog or scattered development; ribbon or

strip commercial or other development; or

large expanses of predominantly low-

intensity, low-density, or single use

development.

169. When a comprehensive plan has previously been found

in compliance, the pre-existence of indicators of urban sprawl

that are not exacerbated by a plan amendment cannot form the

basis for a determination of not in compliance. Fla. Admin.

Code R. 9J-5.006(5)(k).

170. Florida Administrative Code Rule 9J-5.006(5)(g)

describes 13 primary indicators of urban sprawl. Florida

Administrative Code Rule 9J-5.006(5)(d) states that “The

presence and potential effects of multiple indicators shall be

considered to determine whether they collectively reflect a

failure to discourage urban sprawl.”

171. The urban sprawl analysis must also apply the

criteria in Florida Administrative Code Rule 9J-5.006(5)(h)

through (j), which require the consideration of surrounding land

uses and circumstances.

172. Petitioners demonstrated by a preponderance of the

evidence that the County’s adoption of the Lowe’s Amendment

causes the CDMP, when considered as a whole, to fail to

discourage the proliferation of urban sprawl.

173. Petitioners failed to demonstrate by a preponderance

of the evidence that the Brown Amendment causes the CDMP, when

considered as a whole, to fail to discourage the proliferation

of urban sprawl.

Florida Administrative Code Chapter 9J-5 - Natural Resources

174. Petitioners contend the Lowe’s Amendment is

inconsistent with numerous provisions of Florida Administrative

Code Chapter 9J-5 which require that the land use element of

every comprehensive plan contain a goal to protect natural

resources, and that every conservation element contain goals,

objectives, and policies for the protection of vegetative

communities, wildlife habitat, endangered and threatened

species, and wetlands. Petitioners failed to prove by a

preponderance of the evidence that the CDMP does not contain

these required goals, objectives, and policies.

175. In other cases involving challenges to land use map

amendments, the Department has cited provisions of Florida

Administrative Code Chapter 9J-5 that require comprehensive

plans to contain certain goals, objectives, and policies as

surrogates for a claim under Florida Administrative Code Rule

reflect goals, objectives, and policies within all elements.”

The proper claim would be inconsistency with Florida

Administrative Code Rule 9J-5.005(4)(b), with an identification

of the specific goals, objectives, and policies of the local

government comprehensive plan (rather than provisions in Rule

9J-5) that the Department contends are not reflected in the map

amendment.

Florida Administrative Code Rule 9J-5.006(2)(c)

176. Related to Policy LU-8F of the CDMP is Florida

Administrative Code 9J-5.006(2)(c), which requires the Land Use

Element to be based on an analysis of the amount of land needed

to accommodate the projected population.

Petitioners claim that the Lowe’s and Brown Amendments are

inconsistent with this rule, primarily because they contend the

need analyses for the amendments were not professionally

acceptable.

177. Based on the finding that the need for the Lowe’s

amendment was not demonstrated, the County’s adoption of the

Lowe’s Amendment is inconsistent with Florida Administrative

Code 9J-5.006(2)(c).

178. A preponderance of competent, substantial, and

professionally acceptable evidence of need, in conformance with

and including the methodology used by the County planning staff,

demonstrated that the Brown Amendment is consistent with Florida

Administrative Code Rule 9J-5.006(2)(c).

State Comprehensive Plan

179. The State Comprehensive Plan establishes general

planning goals and policies. It would be a rare situation for a

plan amendment to be inconsistent with the State Comprehensive

Plan if it is consistent with the local comprehensive plan and

the criteria found in Florida Administrative Code Chapter 9J-5.

180. Petitioners proved by a preponderance of the evidence

that when the State Comprehensive Plan is construed as a whole,

the County’s adoption of the Lowe’s Amendment is inconsistent

with the State Comprehensive Plan.

181. Petitioners failed to prove by a preponderance of the

evidence that when the State Comprehensive Plan is construed as

a whole, the County’s adoption of the Brown Amendment is

inconsistent with the State Comprehensive Plan.

Strategic Regional Policy Plan

182. Because it was found that there is no need for the

Lowe’s Amendment and that it constitutes urban sprawl,

Petitioners proved by a preponderance of the evidence that the

County’s adoption of the Lowe’s Amendment is inconsistent with

the Strategic Regional Policy Plan.

183. It is not clear that Intervenors Esty and White

withdrew their claim that the Brown Amendment is inconsistent

with the Strategic Regional Policy Plan. However, Petitioners

failed to prove by a preponderance of the evidence that the

County’s adoption of the Brown Amendment is inconsistent with

the Strategic Regional Policy Plan.

Conclusion

184. Petitioners proved that, in construing the CDMP in

its entirety, the County’s adoption of the Lowe’s Amendment is

not in compliance.

185. Petitioners failed to prove that, in construing the

CDMP in its entirety, the County’s adoption of the Brown

Amendment is not in compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that:

1. Ordinance No. 08-44, the Lowe’s Amendment, is not in

compliance, and

2. Ordinance No. 08-45, the Brown Amendment, is in

compliance.

DONE AND ENTERED this 11th day of May, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of May, 2009.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 codification.

2 / Seven acres is the minimum acreage required for a high

school site under the Guidelines for State Requirements for

Educational Facilities.

3/ The Department objected to the use of population projections

that differed from the projections made by the County and which

are integrated into the CDMP. Neither the finding made here nor

the other findings in this Recommended Order are based on

population projections that differ from the County’s

projections.

4/ See paragraph 175.

COPIES FURNISHED :

Dennis A. Kerbel, Esquire

Miami-Dade County

111 Northwest First Street, Suite 2810

Miami, Florida 33128-1930

Karen A. Brodeen, Esquire

Fowler White Boggs Banker, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32302-1240

Michael A. Pizzi, Jr., Esquire

Michael A. Pizzi, Jr., P.A.

15271 Northwest 60th Avenue

Suite 206A

Miami Lakes, Florida 33014

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

Samuel S. Goren, Esquire

Goren, Cherof, Doody & Ezrol, P.A.

3099 East Commercial Boulevard, Suite 200

Fort Lauderdale, Florida 33308-4311

Robert N. Hartsell, Esquire

Everglades Law Center

818 U. S. Highway 1, Suite 8

North Palm Beach, Florida 33408

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32302-0190

Thomas E. Warner, Esquire

Carlton Fields, P.A.

525 Okeechobee Boulevard, Suite 1200

West Palm Beach, Florida 33401-6303

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Jason Gonzalez, General Counsel

Administration Commission

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-0001

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.