89-006803GM Mildred Falk And Miami Beach Homeowners Association vs. City Of Miami Beach And Department Of Community Affairs Status: Closed Recommended Order on Monday, August 13, 1990.

Summary: Contention that plan did not comply with rule re: urban sprawl and that it was adopted in violation of statutory notice requirements rejected.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILDRED FALK and MIAMI BEACH )

HOMEOWNERS ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6803GM

)

CITY OF MIAMI BEACH and )

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on May 22 and 24, 1990, in Miami Beach, Florida, before

Stuart M. Lerner, a duly designated Hearing Officer of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners: Michael A. Lipsky, Esquire

444 Brickell Avenue

Suite 1010

Miami, Florida 33131

For Respondent: John Dellagloria, Esquire

City of Miami Sandra Schneider, Esquire

Beach City of Miami Beach

Office of the City Attorney

1700 Convention Center Drive

Miami Beach, Florida 33319

For Respondent: Richard J. Grosso, Esquire

Department of Department of Community Affairs

Community 2740 Centerview Drive

Affairs Tallahassee, Florida 32399-2100

STATEMENT OF THE ISSUES

1. Whether Petitioners are "affected persons" entitled to

pursue the instant challenge to the City of Miami Beach's Year

2000 Comprehensive Plan pursuant to Section 163.31B4(9), Florida

Statutes?

2. If so, whether the City of Miami Beach's Year 2000

Comprehensive Plan is not "in compliance," within the meaning of

Section 163.3184(1)(b), Florida Statutes, as alleged by

Petitioners?

PRELIMINARY STATEMENT

On November 30, 1989, following the issuance of the

Department of Community Affairs' (Department's) notice of intent

to find the City of Miami Beach's (City's) Year 2000 Comprehensive

Plan "in compliance," Petitioners filed with the Department a

petition disputing the Department's determination of compliance.

More specifically, in their petition they challenged that portion

of the plan "involving the 'trade' [of] 3.87 acres of the City of

Miami Beach Par 3 Golf Course for adjoining land owned by a

religious institution, at 2524 Pine Tree Drive, Miami Beach,

Florida." They alleged in their petition the following:

6. The portion of the plan challenged . . .

is not in compliance with applicable

Florida Statutes and law as follows:

a. The transfer of said acreage

violates a deed restriction, whereby the

golf property, pursuant to deed dated

June 17, 1930, may only be used for a

golf course. Said covenant, as the deed

notes, runs with and binds the said

land.

b. Rule 9J-5.007 is violated, which

rule requires that land use "discourage

the proliferation of urban sprawl."

c. Change of land use may also violate

Florida Statute 163.3184, in that the

Procedures required by the said statute

may not have been followed herein.

d. The transfer of public land to a

private religious organization may also

violate the First Amendment of the

United States Constitution as well as

Section 3, Declaration of Rights of the

Constitution of the State of Florida, by

directly aiding a religious

denomination. This position was also

presented to the Miami Beach Commission,

as noted in the Commission minutes of

September 7, 1989.

e. The transfer of the subject lands

does not constitute a valid public

purpose.

f. No effort was made by the City of

Miami Beach Commission to attempt to

appraise, evaluate, or equalize the

value of property being exchanged, as is

required in similar actions by the State

of Florida. Florida Statute 253.42.

On January 10, 1990, the City filed a motion to dismiss

Petitioners' petition. The Hearing Officer, on February 12, 1990,

issued an order addressing the City's motion to dismiss in which

he announced the following:

Accordingly, to the extent that the

instant petition alleges that the City's

Comprehensive Plan is not "in

compliance" because the plan violates

requirements other than those expressly

mentioned in Section 163.3184(1)(b),

Florida Statutes, the petition should be

dismissed. No evidence will be taken

regarding these allegations and the

Hearing Officer will recommend the

dismissal of these allegations in his

Recommended Order. The only compliance

issues framed by the petition that will

be heard will be those that pertain to

the plan's compliance with the

provisions enumerated in Section

163.3184(1)(b), Florida Statutes.

In a footnote, the Hearing Officer made the following observation:

Of the compliance issues raised by

Petitioners in paragraph 6 of their

petition, it appears that only the urban

sprawl issue framed in subparagraph (b)

is appropriate for consideration in this

administrative proceeding.

On March 28, 1990, the Hearing Officer issued a subsequent

order in which he modified his February 12, 1990, order as

follows:

It appears to the Hearing Officer, upon

further review of the matter in light of

the amended final order issued by the

Administration Commission in Austin v.

Department of Community Affairs, Case

No. 89-31, that the issue raised by

Petitioners in paragraph 6(c) of their

petition may also be appropriate for

consideration in the instant case.

Accordingly, the Hearing Officer hereby

modifies his February 12, 1990,

prehearing order to so reflect.

The parties, on May 16, 1990, submitted their prehearing

stipulation. The stipulation included a recitation of those facts

that were admitted and that would therefore require no proof at

hearing, as well as the following statement concerning the scope

of the issues to be litigated in the instant case:

The compliance issues which may be

raised in the instant proceeding are

limited to those stated in the

definition of "in compliance" in Section

163.3184(1)(b), Florida Statutes.

Accordingly, of the issues raised in

paragraph 6 of the instant Petition,

only the urban sprawl issue stated in

subparagraph (b) and the

issue in subparagraph (c) are

appropriate for consideration in this

proceeding. Petitioners have not waived

the right to raise other issues stated

in the Petition in another forum.

At hearing, the testimony of ten witnesses was presented:

Judd Kerlancheek, the City's Planning and Zoning Director; Daniel

Vaisman, a City resident who lives in the area surrounding the Par

3 Golf Course; Leo Levitt, a member of the Miami Beach Golf

Advisory Board; Bruce Singer, a City Commissioner; James Steffes,

the manager of the Par 3 Golf Course; Mildred Falk, one of the

Petitioners in this cause; Elaine Baker, the City Clerk; Robert

Swarthout, a professional planner; Ramon Alvarez, an engineering

consultant; and Robert Nave, Chief of the Department's Bureau of

Planning. In addition to the testimony of these witnesses, the

parties offered a total of fifteen exhibits into evidence. All

but one of these exhibits were received into evidence by the

Hearing Officer.

At the close of the evidentiary portion of the hearing, the

Hearing Officer advised the parties on the record that their post-

hearing submittals had to be filed no later than 30 days following

the Hearing Officer's receipt of the transcript of the hearing.

The Hearing Officer received a copy of the hearing transcript on

June 7, 1990. On July 2, 1990, the City filed a motion requesting

that the deadline for the filing of post- hearing submittals be

extended to July 16, 1990. By order issued July 5, 1990, the

motion was granted. On July 13, 1990, the City filed a motion

requesting that the deadline be further extended to July 20, 1990.

The motion was granted by order issued July 16, 1990.

The Department and the City filed proposed recommended orders

on July 18, 1990, and July 20, 1990, respectively. The proposed

findings of fact set forth in these proposed recommended orders

have been carefully considered and are specifically addressed in

the Appendix to this Recommended Order. Other than a letter

received by the Hearing Officer on May 31, 1990, which was

stricken at the request of the City by order dated July 6, 1990,

Petitioners have not filed any post-hearing submittals.

FINDINGS OF FACT

Based upon the record evidence and the stipulations of the

parties, the following Findings of Fact are made:

City of Miami Beach: An Overview

1. The City of Miami Beach is an incorporated municipality

located within the jurisdictional boundaries of Dade County,

Florida. It is governed by a seven member City Commission.

2. The City consists of a main island and a number of

smaller natural and man-made islands that lie to the east of the

Dade County mainland. They are separated from the mainland by

Biscayne Bay. To their east is the Atlantic Ocean.

3. The City is now, and has been for some time, virtually

fully developed. Less than 2% of the land in the City is vacant.

Those parcels that are vacant are generally small in size and they

are scattered throughout the City.

4. The City is situated in the most intensely developed area

in Dade County.

5. Approximately 100,000 permanent residents live on the

City's seven square miles of land area. In addition, the City has

a sizable seasonal population

6. Tourism is the backbone of the City's economy.

7. Golf is among the activities visitors to the City are

able to enjoy. There are two public 18-hole golf courses and one

private 18-hole golf course in the City. The City also has a

public 9-hole golf course, hereinafter referred to as the Par 3

Golf Course.

Par 3 Golf Course and Surrounding Area

8. The Par 3 Golf Course is owned by the City and leased to

the American Golf Corporation, which operates the course.

9. The course consists of nine relatively short holes. The

longest of these holes is 180 yards. The shortest is 100 yards.

The remaining holes average 150 yards in

10. The course has been completely renovated and is

currently in excellent condition. Since the renovation work, the

number of players has increased significantly. Nonetheless, the

course is still under-utilized.

11. The land upon which the golf course is built is not

environmentally sensitive. There are, however, a number of large,

mature trees on the property.

12. The Par 3 Golf Course is located on a 25 acre tract of

land in the south central part of the City. It is bounded by 28th

Street on the north, Dade Boulevard and Collins Canal on the

south, Pine Tree Drive on the east, and Prairie Avenue on the

west. All of these roadways are classified as "urban" by the

Florida Department of Transportation

13. Pine Tree Drive is one of the major north-south

thoroughfares in the City. It is part of the Dade County Road

System and has been assigned a Level of Service of "D" by the

County. That portion of the roadway which borders the golf course

has four lanes of through traffic, plus two parking lanes, and is

divided by a median strip.

14. The area surrounding the golf course is entirely

developed. The development is primarily, but not exclusively,

residential in nature. Residential structures are particularly

predominant to the north and to the west of the golf course. Among

the nonresidential structures found in the immediate vicinity of

the golf course are: the Youth Center to the north; the Hebrew

Academy's elementary school building, Miami Beach High School, and

a City fire station, maintenance yard and fuel facility to the

south; and the Fana Holtz Building, a five story building, with a

basement parking garage, which currently houses the Hebrew

Academy's junior and senior high school program, to the east on

the other side of Pine Tree Drive.

15. Parking is inadequate in the area of the golf course.

The City is currently investigating ways to alleviate the parking

problems in the area.

Option to Exchange Property

16. On June 7, 1989, at a regularly scheduled meeting, 1/

the City Commission voted to give the Hebrew Academy, a private

educational institution, an option to purchase from the City a

3.87 acre portion of the Par 3 Golf Course located immediately

adjacent to and north of the Hebrew Academy's elementary school

building, in exchange for the Fana Holtz Building and the land on

which it is situated.

17. The Hebrew Academy has plans to construct a new junior

and senior high school building, which will be able accommodate

more students than the existing facility, on the land it will

acquire if it exercises its option.

18. The Hebrew Academy's acquisition of the land and its

construction of a building on the site will disrupt the operations

of the golf course. In addition, at least some of the large,

mature trees that presently stand on the site will have to be

removed.

19. The course's third and fourth holes now occupy the land

that the Hebrew Academy has been given the option to purchase.

The course therefore will have to be redesigned to eliminate or

relocate these holes if the Hebrew Academy purchases the land and

constructs a building on it.

20. Golfers playing the Par 3 Golf Course generally have the

benefit of cool breezes that blow from the southeast. A

multistory building situated on the land now occupied by the third

and fourth holes will block some of these breezes that golfers

playing other holes now enjoy.

21. If the City acquires the Fana Holtz Building, it may

move the offices of several City departments into the building.

Such a move, coupled with an increase in the size of the Hebrew

Academy's enrollment, would create a need for additional parking

spaces in an area where parking is already a problem.

Petitioners Falk and Miami Beach Homeowners Association

22. Mildred Falk is now, and has been for the past 53 years,

a resident of the City of Miami Beach.

23. The Miami Beach Homeowners Association (Association) is

a nonprofit organization of Miami Beach homeowners. Its primary

purpose is to educate the public concerning matters of local

interest in the City.

24. For the past 15 years, Falk has been the President of

the Association.

25. Falk does not require formal permission from the

Association's Board of Directors to address the City Commission on

behalf of the Association. Falk has an understanding with the

members of the Board that, if they take a position on an issue

that will come before the City Commission, she will represent

their collective views at the City Commission meeting in question

without being formally requested to do so.

26. Falk regularly appears before the City Commission in her

capacity as a representative of the Association. As a general

rule, though, she does not expressly state during her

presentations that she is representing the Association. She

considers it unnecessary to provide such an advisement because the

persons she is addressing already know of her role as a

spokesperson for the Association.

27. On April 5, 1989, Falk Submitted a completed Lobbyist

Registration Form to the City Clerk. On the completed form, Falk

indicated that she had been employed by the Association to engage

in lobbying activities with respect to a particular item,

unrelated to the instant controversy, that was then before the

City Commission.

28. On February 5, 1990, Falk submitted another completed

Lobbyist Registration Form to the City Clerk. On this completed

form, she indicated that she had been employed to lobby with

respect to "[a]ll issues that affect Miami Beach before the City

Commission, Authorities or Boards." There was no indication on

the form, however, as to what person or entity had employed her to

engage in such lobbying activity.

29. These are the only completed Lobbyist Registration Forms

that Falk has filed with the City Clerk.

Adoption of the City's Comprehensive Plan

30. The City Commission considered the matter of the

adoption of the City's Year 2000 Comprehensive Plan at public

hearings held on September 7, 1989, and September 21, 1989.

31. Notice of these adoption proceedings was published in

the "Neighbors" section of the Miami Herald. 2/

32. The Miami Herald is a newspaper of general paid

circulation in Dade County.

33. The "Neighbors" section of the Miami Herald is

circulated twice weekly along with other portions of the Herald in

the following towns and municipalities: Miami Beach; Bal Harbour;

Surfside; Bay Harbor Islands; Golden Beach; North Bay Village;

Sunny Isles; and Indian Creek Village.

34. The "Neighbors" section of the Miami Herald is: (a)

published at least on a weekly basis; (b) printed in the language

most commonly spoken in the area within which it circulates; (c)

not a newspaper intended primarily for members of a particular

professional or occupational group; (d) not a newspaper whose

primary function is to carry legal notices; and (e) not given away

primarily to distribute advertising.

35. At the close of the public hearing held on September 21,

1989, the City Commission unanimously passed Ordinance No. 89-2664

adopting the City's Year 2000 Plan.

36. On the future land use map (FLUM), adopted by the City

Commission as part of the plan, that portion of the Par 3 Golf

Course which the Hebrew Academy has the option to purchase is

designated PFE (Public Facility- Educational). The property that

the City will receive if the Hebrew Academy exercises its option

has a land use designation of PF (Public Facility- Fire, Police,

Other) on the FLUM.

37. Policy l.2q. of the plan's future land use element

contains the following discussion concerning the land use

designation of these parcels of property:

On June 7, 1989, the City Commission

approved an option with the Hebrew

Academy to exchanged [sic] private land

for a portion of the Par 3 Golf Course.

At the exercise of the option, the

affected portion of the Par 3 Golf

Course shall automatically be designated

as Public Facilities [sic]- Educational.

The property that the City will obtain will be

designated as Public Facility- Other. 3/

38. During the public hearings that culminated in the City

Commission's adoption of the City's Year 2000 Comprehensive Plan,

Falk made oral presentations to the City Commission. She

criticized the decision that had been made to allow the Hebrew

Academy to purchase, at its option, the "affected portion of the

Par 3 Golf Course" referenced in Policy 1.2q. of the plan's future

land use element. It was her contention that, in accordance with

a restrictive covenant entered into between the City, the Alton

Beach Realty Company and the Miami Beach Improvement Company on

June 17, 1930, the City was prohibited from allowing any portion

of the land on which the golf course was built "to be used for any

purpose whatsoever, other than for a golf course and/or golf

links."

39. At no time during her remarks did she contend that the

plan ultimately adopted by the City Commission was contrary to any

requirements dealing with the subject of urban sprawl. Nor did she

argue that the notice of the adoption hearings that the City had

provided was in any way deficient or inadequate.

40. Falk did not identify herself at the adoption hearings as

a representative of the Association. 4/ Nonetheless, in

presenting her remarks to the City Commission, she was expressing

not only her own views, but those of the Association as well.

Prior to these hearings, she had informally polled the members of

the Association's Board of Directors and they had each indicated

to her that they opposed the "land swap" between the City and the

Hebrew Academy. While they did not formally request that she

appear before the City Commission to voice their concerns, it is

not their standard practice to issue such requests.

41. Neither Falk nor the Association submitted any written

comments concerning the City's Year 2000 Comprehensive Plan during

the City's review and adoption proceedings Urban Sprawl

42. In November, 1989, the Department of Community Affairs

published a Technical Memorandum (Volume IV, Number 4) which was

designed "to help local governments and interested parties

understand the requirements for discouraging urban sprawl that

must be met to comply with Florida's planning requirements."

43. The memorandum defines "urban sprawl" a- "scattered,

untimely, poorly planned urban development that occurs in urban

fringe and rural areas and frequently invades lands important for

environmental and natural resource protection." According to the

memorandum, "urban sprawl typically manifests itself in one or

more of the following inefficient land use patterns: (1) leapfrog

development; (2) ribbon or strip development; and (3) large

expanses of low- density, single-dimensional development." These

land use patterns are described in the memorandum as follows:

Leap frog development occurs when new

development is sited away from an

existing urban area, bypassing vacant

parcels located in or closer to the

urban area that are suitable for

development. It typically results in

scattered, discontinuous growth patterns

in rural areas which are frequently not

appropriate for urban development

* * *

Strip or ribbon development involves the

location of high amounts of commercial,

retail, office and often multi-family

residential development in a linear

pattern along both sides of major

arterial roadways.

* * *

Low-density, Single-dimensional

development consists of single land

uses, typically low-density residential,

spread over large land areas.

Frequently, the land is in rural,

forestry, agricultural, or

environmentally sensitive areas

should be protected from urban

development.

44. The memorandum's description of "urban sprawl" is

consistent with the definition most commonly employed by

professional planners.

45. In order to ascertain whether development meets the

definition of "urban sprawl" used by the Department, it is

necessary to determine whether the area involved is "rural" or on

the "urban fringe." The memorandum suggests that such a

determination may be based upon the area's population density.

According to the memorandum, areas should be classified as follows

based upon their population densities per square mile:

Density Classification

0-200 Rural

201-500 Exurban

501-1000 Suburban

1001-2000 Medium [Urban] Density

2001-5000 High [Urban] Density

5000 Highest Urban Density

46. Among the techniques recommended in the memorandum to

curb "urban sprawl" is "[p]romoting urban infill development and

redevelopment."

47. The construction of a multistory building on the Par 3

Golf Course and the conversion of the Fana Holtz Building to

government use would not constitute any of the three types of

development that the Department has indicated in its memorandum

are characteristic of "urban sprawl." Rather, these activities

would be in the nature of "infill development and redevelopment"

inasmuch as they would occur, not in a "rural area" or on the

"urban fringe," as those terms are used in the memorandum, 5/ but

rather in the heart of an area of the "highest urban density."

CONCLUSIONS OF LAW

General Legal Principles

48. Counties and incorporated municipalities in the State of

Florida are required, pursuant to Chapter 163, Part II, Florida

Statutes, (otherwise known as the Local Government Comprehensive

Planning and Land Development Regulation Act and referred to

herein as the Act) to prepare and adopt comprehensive plans of the

type and in the manner prescribed by the Act.

49. A local government's adopted comprehensive plan is

subject to review by the Department of Community Affairs under the

Act. The purpose of such review is to determine whether the plan

is "in compliance." Section 163.3184(8), Fla. Stat.

50. "In compliance," as used in Section 163.3184, Florida

Statutes, "means consistent with the requirements of ss. 163.3177,

163.3178 and 163.3191, the state comprehensive plan, the

appropriate regional policy plan, and rule 9J-5, F.A.C., where

such rule is not inconsistent with chapter 163, part II." Section

163.3184(1)(b), Fla. Stat.

51. Section 163.3177, Florida Statutes, describes the

"[r]equired and optional elements of comprehensive plan[s]" and

the "studies and surveys" upon which they must be based.

52. Section 163.3178, Florida Statutes, prescribes the

contents of the coastal management element, which is a required

element for all counties and municipalities that, like the City of

Miami Beach, abut "the Gulf of Mexico or the Atlantic Ocean, or

which include or are contiguous to waters of the state where

marine species of vegetation listed by rule pursuant to s. 403.817

constitute the dominant plant community." Section 380.24, Florida

Statutes.

53. Section 163.3191, Florida Statutes, imposes requirements

relating to a local government's evaluation and appraisal of its

comprehensive plan following the plan's adoption.

54. Chapter 9J-5 of the Florida Administrative Code contains

the rule provisions adopted by the Department of Community Affairs

pursuant to Section 163.3177(9), Florida Statutes, which set forth

the "minimum criteria for review of comprehensive plans and

determination of compliance."

55. The state comprehensive plan was adopted by the

Legislature in accordance with the provisions of Section 186.008,

Florida Statutes. It is found in Chapter 187, Florida Statutes.

The plan is "a direction-setting document" that provides "long-

range policy guidance for the orderly social, economic, and

physical growth of the state." Section 187.101, Fla. Stat.

56. The appropriate regional policy plan in the instant case

is the plan adopted by the South Florida Regional Planning Council

pursuant to Section 186.508, Florida Statutes. The Council is

responsible for regional planning activities in the South Florida

region, which includes Broward, Dade and Monroe Counties.

57. The Legislature has mandated that the following

guidelines be followed in determining whether a local government's

comprehensive plan is consistent with the requirements of the

state comprehensive plan and the applicable regional policy plan:

[A] local plan shall be consistent with

such plans if the local plan is

"compatible with" and "furthers" such

plans. The term "compatible with" means

that the local plan is not in conflict

with the state comprehensive plan or

appropriate regional policy plan. The

term "furthers" means to take action in

the direction of realizing goals and

policies of the state or regional plan.

For the purposes of determining

consistency with the state comprehensive

plan or the appropriate regional policy

plan, the state or regional plan shall

be construed as a whole and no specific

goal and policy shall be construed or

applied in isolation from the other

goals and policies in the plan.

Section 163.3177(10)(a), Fla. Stat. Furthermore, there is no

requirement that a local government address in its comprehensive

plan state goals and policies that are not "relevant to the

circumstances or conditions in its jurisdiction." Section

163.3177(10)(b), Fla. Stat.

58. If the Department of Community Affairs determines

following its review of a local government's adopted comprehensive

plan that the plan is consistent with the requirements of Sections

163.3177, 163.3178 and 163.3191, Florida Statutes, Chapter 9J-5,

Florida Administrative Code the state comprehensive plan and the

appropriate regional policy plan, it is required to issue and

publish a notice of its intent to make such a finding. "[A]ny

affected person, within 21 days after the publication of the

notice, may file a petition with the [Department] pursuant to s.

120.57" challenging the proposed finding. Section 163.3184(9)(a),

Fla. Stat. To ascertain whether a petitioner is an "affected

person" entitled to participate as a party in the proceeding, the

following definition set out in Section 163.3184(1)(a) Florida

Statutes, must be applied:

"Affected person" includes the affected

local government; persons owning

property, residing, or owning or

operating a business within the

boundaries of the local government whose

plan is the subject of the review; and

adjoining local governments that can

demonstrate that adoption of the plan as

proposed would produce substantial

impacts on the increased need for

publicly funded infrastructure or

substantial impacts on areas designated

for protection or special treatment

within their jurisdiction. Each person,

other than an adjoining local

government, in order to qualify under

this definition, shall also have

submitted oral or written objections

during the local government review add

adoption proceedings.

The burden is on the petitioner to establish that he qualifies as

an "affected person" under this statutory definition. See Florida

Department of Health and Rehabilitative Services v. Career Service

Commission, 289 So.2d 412, 414 (Fla. 4th DCA 1974) ("burden of

proof is `on the party asserting the affirmative of an issue

before an administrative tribunal'").

59. If a petition is filed with the Department by an

"affected person," it must be transmitted to the Division of

Administrative Hearings. Upon receipt of the petition, the

Division of Administrative Hearings is responsible for assigning a

hearing officer, who "shall hold [a] hearing in the affected local

jurisdiction and submit a recommended order to the [Department]."

The Department must issue "a final order within 30 days after

receipt of the recommended order if [it] determines that the plan

is in compliance. If [it] determines that the plan . . . is not

in compliance, [it must] submit, within 30 days after receipt, the

recommended order to the Administration Commission." Section

163.3184(9)(b), Fla. Stat.

60. In making its determination on the matter, the

Department must take into account that the petitioner bears the

burden of establishing that it is not even "fairly debatable" that

the plan is "in compliance." Section 163.3184(9)(a), Fla. Stat.

("the local plan . . . shall be determined to be in compliance if

the local government's determination of compliance is fairly

debatable"). 6/ The burden is a "heavy" one. See Allapattah

Community Association, Inc. of Florida v. City of Miami, 379 So.2d

387, 392 (Fla. 3d DCA 1980). To meet this burden, the petitioner

must show that its position regarding the plan's noncompliance is

not subject to reasonable debate or legitimate controversy. See

City of Miami Beach v. Lachman, 71 So.2d 148, 152 (Fla. 1953);

Norwood-Norland Homeowner Association, Inc. v. Dade County, 511

So.2d 1009, 1012 (Fla. 3d DCA 1987); Sarasota County v. Purser,

476 So.2d 1359, 1362 (Fla. 2d DCA 1985); Marrell v. Hardy, 450

So.2d 1207, 1209 (Fla. 4th DCA 1984). If an examination of the

record developed at hearing reveals that the petitioner has not

made such a showing, the Department must issue a final order

sustaining "the local government's determination of compliance."

Petitioners' Standing

61. The preponderance of the evidence establishes that Falk

is a resident of the City of Miami Beach.

62. It further reflects that: the members of the Miami

Beach Homeowners Association own property in the City of Miami

Beach; the subject matter of the petition the Association filed in

this case is within the general scope of its interest and

activity; and the relief requested in the petition is of a type

appropriate for it to receive on behalf of its members.

63. Accordingly, if they had "submitted oral or written

objections during the local government and review proceedings,"

both Falk and the Association would qualify as "affected persons,"

within the meaning of Section 163.3184(1)(a), Florida Statutes,

entitled to challenge the City's Year 2000 Comprehensive Plan

pursuant to Section 163.3184(9), Florida Statutes, see Florida

Home Builders Association v. Department of Labor and Employment

Security, 412 So.2d 351 (Fla. 1982) (associational standing

allowed in rule challenge cases under appropriate circumstances);

Southwest Ranches Homeowners Association, Inc. v. Broward County,

502 So.2d 931, 934-35 (Fla. 4th DCA 1987) (association of owners

of property adjoining challenged development had standing to

challenge development order under Section 163.3215, Florida

Statutes); Farmworker Rights Organization, Inc. v. Department of

Health and Rehabilitative Services, 417 So.2d 753, 754-55 (Fla.

1st DCA 1982) ("standing requirements for associations as set

forth in Florida Home Builders should be extended to section

120.57(1) proceedings").

64. The only remarks Falk or the Association directed to the

City Commission during the review and adoption proceedings were

those made by Falk during her oral presentations at the September

7 and 21, 1989, public hearings held by the City Commission. 7/

The City contends that these remarks did not constitute

"objections," as that term is used in Section 163.3184(1)(a),

Florida Statutes, and that therefore neither Falk nor the

Association qualify as an "affected person" under that statutory

provision. The City's argument is a persuasive one.

65. Chapter 163, Part II, Florida Statutes, does not contain

a definition of the term "objection." The Department of Community

of Affairs, however, in Florida Administrative Code Rule 9J-

11.002(6) has defined the term as follows:

"Objection" means a statement which

identifies a portion of a

plan or plan amendment that is not

consistent with one or more provisions

of Section 163.3177, 163.3178, 163.3“91,

Florida Statutes, the state comprehensive

plan, the appropriate comprehensive

regional policy plan, or Chapter 9J-5,

Florida Administrative Code.

The Department's definition is not clearly unauthorized or

erroneous. To the contrary, it is consistent with the apparent

intent of the Legislature that, in order to preserve their right

to challenge a local government's adopted comprehensive plan on

the grounds that it is not "in compliance," within the meaning of

Section 163.3184(1)(b), Florida Statutes, property owners,

residents, business owners and business operators must, if given a

reasonable opportunity to do so, 8/ raise these grounds during

the review and adoption proceedings so that the local governing

body will have the chance to address their concerns before the

plan is adopted. 9/ Accordingly, the Department's definition of

the term "objection" should be utilized in construing the

provisions of Section 163.3184(1)(a), Florida Statutes, and

determining whether Falk and the Association are "affected

persons" entitled to administratively challenge the City's Year

2000 Comprehensive Plan on the grounds that it is not "in

compliance," within the meaning of Section 163.3184(1)(b), Florida

Statutes. See PW Ventures, Inc. v. Nichols 533 So.2d 281, 283

(Fla. 1988) ("[T]he contemporaneous construction of a statute by

the agency charged with its enforcement and interpretation is

entitled to great weight" and may not be rejected "unless it is

clearly unauthorized or erroneous").

66. Although they had the opportunity to do so, at no time

during the City's review and adoption proceedings did either Falk

or the Association raise any compliance issue. Their sole

complaint was that, to the extent that the plan would permit the

Par 3 Golf Course to be used for other than golfing activities, it

would violate a restrictive covenant that the City had entered

into in 1930, an argument unrelated to the urban sprawl and notice

issues that they have raised in the instant case.

67. Because they failed to take advantage of the opportunity

afforded them to complain to the City Commission during the review

and adoption proceedings that the City's Year 2000 Comprehensive

Plan, if adopted as proposed, would not be "in compliance," within

the meaning of Section 163.3184(1)(b), Florida Statutes, Falk and

the Association do not qualify as "affected persons" entitled to

challenge the plan pursuant to Section 163.3184(9), Florida

Statutes. Their petition should therefore be dismissed.

Compliance Issues

68. The compliance issues presented in the instant case are

framed by the prehearing stipulation filed by the parties in this

matter. See Nest v. Department of Professional Regulation, 490

So.2d 987, 989 (Fla. 1st DCA 1986); Manatee County v. Florida

Public Employees Relations 387 So.2d 446, 449 (Fla. 1st DCA 1980)

("It is necessary, therefore, for the administrative agency to

take into account due process considerations when dealing with

stipulations or agreements of the adversarial parties submitted

during the course of administrative hearings"); Gandy v.

Department of Offender Rehabilitation, 351 So.2d 1133, 1134 (Fla.

1st DCA 1977) ("[W]hen the issues have been narrowed by

stipulation and a party thereby lulled into responding to evidence

adduced over his objections outside the issues, such evidence may

not be used to his detriment")

69. These issues, as recited in the prehearing stipulation,

are as follows:

1. Whether the City's Future Land Use

Element Policy 1.2q. (land exchange with

Hebrew Academy) and FLUM designations

for the subject properties constitute

proliferation of urban sprawl.

2. Whether the City's publication of

notice of its Plan adoption proceedings

in the "Neighbors" Section of the Miami

Herald fulfilled the requirements of

Section 163.3184(15)(c)

Urban Sprawl

70. In the prehearing stipulation, Falk and the Association

state their position on the urban sprawl issue as follows:

The designations on the Future Land Use

Map (FLUM) of a portion of what is

currently the Par Three Golf Course as

"Public Facility Educational" and the

designation of the land located at 2425

Pine Tree Drive currently used as a

junior-senior high school by the Hebrew

Academy as "Public Facility Other" and

Policy 1.2q. of the Future Land Use

Element of the City's Plan relating to a

proposed exchange of these properties by

the City and the Hebrew Academy do not

comply with Rule 9J-5.006(3)(b)7,

Florida Administrative Code, which rule

requires that the plan discourage the

proliferation of urban sprawl, inasmuch

as they would permit construction of a

school building on the Golf Course bite

and use of the junior-senior high school

building by the City as a facility.

71. Florida Administrative Code Rule 9J-5.006(3)(b)7, a rule

provision adopted by the Department of Community Affairs, provides

as follows:

The [future land use element] shall

contain one or more specific objectives

for each goal statement which address

the requirements of

163.3177(6)(a), Florida Statutes, and

which:

Discourage the proliferation of urban

sprawl.

72. The Department, in its Technical Memorandum Volume IV,

Number 4, has explained what it meant by "urban sprawl" when it

made reference to that condition in Rule 9J-5.006(3)(b)7.

73. The definition of "urban sprawl" set forth in the

memorandum is consistent with that generally relied upon by those

in the professional planning community. Accordingly, it should be

used in evaluating Petitioners' claim that the City's Year 2000

Comprehensive Plan does not comply with the requirement of Rule

9J-5.006(3)(b)7 that "urban sprawl" be discouraged. See Reedy

Creek Improvement District v. State Department of Environmental

Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986) ("an agency's

interpretation of its own rules . . . Is entitled to great

deference"); Franklin Ambulance Service v. Department of Health

and Rehabilitative Services, 450 So.2d 580, 581 (Fla. 1st DCA

1984) ("An administrative interpretation of an agency's own rule

is entitled to great weight" and Should be accepted where it

"comports with the plain meaning of the rule") 10/

74. Because of the extent of the intense urban development

that has already taken place in the City of Miami Beach, no part

of the City, including the area in which the Par 3 Golf Course and

the Fana Holtz Building are located, is susceptible to "urban

sprawl," as defined by the Department in Technical Memorandum

Volume IV, Number 4. Any new development or redevelopment that

occurs in the City will be of the infill variety. Infill

development/redevelopment, while it may result in a degradation of

the level of service provided by the community's public

facilities, 11/ is the antithesis of "urban sprawl."

75. Inasmuch as Petitioners' allegation that the City's Year

2000 Comprehensive Plan does not comply with Rule 9J-5.006(3)(b)7

is based upon the erroneous premise that the construction of a

school building on the Par 3 Golf Course and the conversion of the

Fana Holtz Building to a public facility would result in "urban

sprawl," this allegation of noncompliance is without merit.

Notice

76. In the prehearing stipulation, Petitioners state their

position on the notice issue as follows:

The Plan was not adopted in accordance

with the notice requirements of section

163.3184(15)(c) in that notice of the

adoption hearings was published in tide

Neighbors Section of the Miami Herald.

77. Section 163.3184(l5)(c), Florida Statutes, which is

incorporated by reference in Florida Administrative Code Rule 9J-

5.005(8), provides in pertinent part as follows:

If the proposed comprehensive plan or

plan amendment changes the permitted

uses of land or changes 1and-use

categories, the required advertisement

shall be no less than one-quarter page

in a standard size or a tabloid size

newspaper, and the headline in the

advertisement shall be in a type no

smaller than 18 point. The

advertisement shall not be placed in

that portion of the newspaper where

legal notices and classified

advertisements appear. The

advertisement shall be published in a

newspaper of general paid circulation in

the county and of general interest and

readership in the community, not one of

limited subject matter, pursuant to

chapter 50. Whenever possible, the

advertisement shall appear in a

newspaper that is published at least 5

days a week, unless that only newspaper

in the community is published less than

5 days a week.

78. A "newspaper of general circulation" is defined in

Section 163.3164(14), Florida Statutes, as follows:

A "newspaper of general circulation"

means a newspaper published at least on

a weekly basis and printed in the

language most commonly spoken in the

area within which it circulates, but

does not include a newspaper intended

primarily for members of a particular

professional or occupational group, a

newspaper whose primary function is to

carry legal notices, or a newspaper that

is given away primarily to distribute

advertising.

79. Chapter 50, Florida Statutes, which is referred to in

Section 163.3184(15)(c), Florida Statutes, requires that all legal

notices and advertisements be published in newspapers which are

"printed and published periodically once a week or oftener" and

which are "for sale to the public generally, available to the

public generally for the publication of official or other notices

and customarily containing information of a public character or of

interest or of value to the residents or owners of property in the

county where published, or of interest or of value to the general

public." Section 50.011, Florida Statutes.

80. Petitioners have not shown that the City failed to

comply with the foregoing notice requirements in adopting its Year

2000 Comprehensive Plan. Notice of the plan adoption hearings was

published in the Miami Herald, albeit in the "Neighbors" section

of the newspaper. See Paducah Automotive Trades Association v.

City of Paducah, 307 Ky. 524, 211 S.W.2d 660, 663-64 (Ky. App.

1948) (notice of a city ordinance published in a special tabloid

section of the city's official newspaper was considered to be

published in the official newspaper for purposes of determining

compliance with statutory notice requirements). No showing has

been made that the Miami Herald is not a "newspaper" of the type

in which such a notice must be published pursuant to Section

163.3184(15)(c), Florida Statutes.

81. Petitioners have not offered any rationale in support of

their position that the City's publication of notice of the

adoption hearings in the "Neighbors" section of the Miami Herald

was legally insufficient. The Hearing Officer surmises, however,

based upon the factual stipulations set forth in the prehearing

stipulation, that Petitioners view such publication as inadequate

because the "Neighbors" section is included in the Miami Herald

only twice a week and it is not distributed in every area of Dade

County.

82. That the "Neighbors" section comes out only twice weekly

is not a basis upon which to find that the notice given by the

City in the instant case did not comply with the requirements

Section 163.3184(15)(c), Florida Statutes. While a local

government, in accordance with these requirements, must as a

general rule place its advertisement in a newspaper which is

published at least five days a week, there is no requirement that

the advertisement appear in a section of the paper that comes out

with such regularity.

83. Furthermore, under the statutory scheme, an incorporated

municipality, such as the City of Miami Beach, is not required to

advertise its public hearings in a publication that is distributed

in every part of the county in which it is located. While the

advertisement must be "published in a newspaper of general paid

circulation in the county," this particular requirement is met if

the municipality's advertisement appears in a "newspaper of

general paid circulation" that is published in (but not

necessarily throughout) the country. As the definitional

provisions of Section 163.3164(14), Florida Statutes, reflect,

"general . . . circulation" refers primarily to the contents of

the publication, not its geographical distribution. Cf. Johnson

v. Taggart, 92 So.2d 606, 607-08 (Fla. 1957) (statutory

requirement that "the notice for a county tax deed be published in

a newspaper which has been published in the county for a period of

one year and entered as second-class mail in a post office in the

county" was met, notwithstanding that the newspaper containing the

notice had no circulation in certain parts of the county;

newspaper must "be one of general circulation although it is not

required that it "be read by everyone in the county so long as it

is available to the general public"); People ex rel. Toman v. 110

South Dearborn Street Building Corporation, 372 Ill. 459, 24 N.E.

2d 373 (Ill. 1939) (statute providing that notice be given in a

secular newspaper of general circulation published in the district

does not require that the newspaper in which the notice is placed

have a general circulation "throughout" the district); Delta &

Pine Land Company of Mississippi v. Board of Supervisors of

Bolivar County, 228 So.2d 893 (Miss. 1969) (statutory requirement

that notice be published "in a newspaper published in said county"

was met even though the newspaper carrying the notice was not

published in that part of the county where the subject property

was located); Great Southern Media Inc. v. McDoweli. County, 284

S.E.2d 457 (N.C. 1981).

84. The purpose of statutory provisions, such as those found

in Chapters 50 and 163, Florida Statutes, which limit the

publication of legal notices and advertisements to newspapers

meeting certain standards is to ensure that the published material

will come to the attention of a substantial number of persons in

the affected area. See In re Norwalk Call 41 Cal. Rpt. 666, 397

P.2d 426 (Cal. 1964); Butler v. Lahontan Valley News, 537 P.2d

320, 321 (Nev. 1975). There is no indication in the record that

this purpose was thwarted by the City's publication of notice in

the "Neighbors" section of the Miami Herald, which is distributed

not only in the City of Miami Beach, but in surrounding areas as

well.

85. In view of the foregoing, Petitioners' contention that

the City did not comply with the notice requirements of Section

163.3184(15)(c), Florida Statutes, is without merit.

86. Inasmuch as Petitioners have failed to make a sufficient

showing, in support of their allegations, that the City's Year

2000 Comprehensive Plan is not "in compliance," within the meaning

of Section 163.3l84(1)(b), Florida Statutes, even if they had

standing to advance such allegations in the instant case, the

City's determination of compliance, with respect to those matters

raised herein by Petitioners, would nonetheless have to be

sustained.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Department of Community Affairs issue a

final order in the instant case declining to find the City of

Miami Beach's Year 2000 Comprehensive Plan not "in compliance" on

the grounds urged by Petitioners.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this

13th day of August, 1990.

___________________________

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13 day of August, 1990.

ENDNOTES

1/ This meeting was not one dealing with the City's proposed Year

2000 Comprehensive Plan, which at the time was still in the

process of being prepared. A hearing on the transmittal of this

proposed plan was held more than a month later, on July 13, 1989.

2/ The Department of Community Affairs also used the Neighbors

section of-the Miami Herald to publish notice of its intent to

find the City's Year 2000 Comprehensive Plan "in compliance."

3/ To the extent that Policy 1.2q. may be construed to mean that,

until such time as the Hebrew Academy exercises its option, the

parcels of property referenced in the policy will have land use

designations other than PFE and PF, its provisions are arguably

inconsistent with the FLUM, which appears to provide the contrary.

Whether such internal inconsistency exists in the plan, however,

is a matter that need not be resolved because it was not alleged

in Petitioners' petition as a basis upon which the City's Year

2000 Comprehensive Plan should be found not "in compliance." Cf.

Atlantic Coast Line R. Co. v. Johnson 40 So.2d 892, 895 (Fla.

1949)("Regardless of what is disclosed by the evidence the

plaintiff must recover, if at all, on the case made by his

declaration").

4/ No other speaker at these hearings Purported to be making a

presentation on behalf of the Association.

5/ Indeed, no area in the City may be described as "rural" or on

the "urban fringe."

6/ Where an administrative proceeding involves a challenge to

action of a legislative or quasi-legislation nature such as in the

instant case, unless the statute in question provides otherwise,

it is the challenger that bears the ultimate burden of persuasion,

notwithstanding that the challenger may not be asserting the

affirmative on the issue before the tribunal. See Rinker

Materials Corporation v. Metropolitan Dade County, 528 So.2d 904,

906 (Fla. 3d DCA 1987) ("In enacting the ordinance amending the

Dade County Comprehensive Development Master Plan the county

commission was performing a legislative function"); Florida

Department of Transportation v J.W.C. Company, Inc., 396 So.2d

778, 787-88 (Fla. 1st DCA 1981) (while, as a general rule, the

burden of persuasion is on the party asserting the affirmative of

an issue in an administrative proceeding, because rule-making is a

"quasi-legislation action" deserving of deference, the burden of

persuasion is upon those attacking rule-making action to show that

it is an invalid exercise of authority).

7/ The City argues that, in making these remarks Falk was acting

only on her own behalf and not also as a representative of the

Association. The preponderance of the evidence, however, shows

otherwise. While the Association's Board of Directors may not

have specifically directed Falk to represent the Association at

these public hearings, in speaking on behalf of the Association

she was acting within the scope of her authority. (Cf. American

Ladder & Scaffold Co. v. Miami Ventilated Awninq Mfg. Co., 161

So.2d 699, 700 (Fla. 3d DCA 1964) ("An agent's authority need not

be conferred in express terms, but may be implied or apparent

under justifying circumstances").

8/ A local government, however, is estopped from contending that

a challenger to its adopted comprehensive plan failed to make the

requisite pre-adoption objections if the local government

wrongfully denied the challenger the opportunity to submit such

objections. Cf. Carter v. Carter, 88 So.2d 1-93, 157 (Fla. 1956)

("It is an axiom of the common law, supported by admirable

concepts of common justice, that no person should be permitted to

benefit from his own wrong. It is offensive to our sense of right

that a wrongdoer be allowed to exploit His wrongs to the injury of

another and to the profit of himself").

9/ This prerequisite to the filing of a petition pursuant to

Section 163.3184(9), Florida Statutes, is not unlike the

exhaustion requirement imposed upon those seeking circuit court

certiorari review of zoning decisions. See First City Savings

Corporation of Texas v. S & B Partners, 548 So.2d 1156, 1158 (Fla.

5th DCA 1989)("As long as due process is afforded, the circuit

court in a certiorari proceeding should not fault the zoning

authority for refusing to consider issues which were not properly

presented before it at the public hearing;" opponents of rezoning

application approved by the counts commission, who had appeared

before the county commission and objected to the requested

rezoning, were not able to raise issues on certiorari that they

had not submitted to the county commission for its consideration).

10/ An agency, however, may not "place a construction on a rule

which is clearly contradictory to the unambiguous language of the

rule." See Kearse v. Department of Health and Rehabilitative

Services, 474 So.2d 819, 820 (Fla. 1st DCA 1985). In issuing

Technical Memorandum Volume IV, Number 4, the Department has not

run afoul of this prohibition.

11/ The City's Year 2000 Comprehensive Plan has provisions

designed to limit the extent of degradation that will be

permitted. For instance, Objective 2 of the Capital Improvement

Program Element provides as follows:

The City, as of 1990, shall not issue

any building permits or development

orders for new developments or

redevelopments unless the existing

infrastructure (i.e water, sanitary

sewer, transportation and solid waste)

meets or is upgraded to meet the

permitted level of service to support

the increase in demand by the proposed

development.

Likewise, Objective 7 of that same element contains the following

provisions:

Starting January 1, 1990, no new

development, except those for which a

building permit was issued by the City

prior to the effective date of the

ordinance adopting the Miami Beach

Comprehensive Plan, shall begin

construction unless the public

facilities needed to support the

development are at the permitted level

of service standards adopted in the plan

and land use decisions will be

coordinated with available projected

fiscal resources with a C.I.P. schedule.

Accordingly, to the extent that Petitioners suggest that the

City's Year 2000 Comprehensive Plan permits the Hebrew Academy to

construct a school building on the Par 3 Golf Course and the City

to convert the Fana Holtz Building to government use regardless of

the impact these activities will have on the public facilities

referenced in the foregoing plan provisions, they are wrong.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6803GM

The following are the Hearing Officer's specific rulings on

the findings of fact proposed by the City and the Department: The

City's Proposed Findings of Fact

1.1-1.3. Accepted and incorporated in substance, although

not necessarily repeated verbatim, in this Recommended Order.

1.4-1.5. Rejected because they would add only unnecessary

detail to the factual findings made by the Hearing Officer.

1.6-1.8. Accepted and incorporated in substance.

1.9. Rejected because it is not supported by persuasive

competent substantial evidence.

1.10. Accepted and incorporated in substance.

1.11. Rejected because it is not supported by persuasive

competent substantial evidence.

1.12. Accepted and incorporated in substance.

1.13. Rejected because it would add only unnecessary detail.

1. 14. Accepted and incorporated in substance.

2.1-2.18. Accepted and incorporated in substance.

2.19-2.20. Rejected because they would add only unnecessary

detail.

2.21-2.28. Accepted and incorporated in substance.

2.29-2.30. Rejected because they would add only unnecessary

detail.

2.31-2.33. Accepted and incorporated in substance.

2.34-2.36. Rejected because they would add only unnecessary

detail.

2.37-2.40. Accepted and incorporated in substance.

2.41-2.44. Rejected because they would add only unnecessary

detail.

2.45-2.46. Accepted and incorporated in substance.

2.47. Rejected because it would add only unnecessary detail.

2.48-2.49. Accepted and incorporated in substance.

2.50. Rejected because it would add only unnecessary detail.

C.1-5. Accepted and incorporated in substance. The

Department's Proposed Findings of Fact

1-7. Accepted and incorporated in substance.

8. Rejected because it is not supported by persuasive

competent substantial evidence.

9-11. Accepted and incorporated in substance.

12. Rejected because it would add only unnecessary detail.

13-15. Accepted and incorporated in substance.

16-17. Rejected because they would add only unnecessary

detail.

18. First sentence: Accepted and incorporated in substance;

Second sentence: Rejected because it would add only unnecessary

detail.

19-21. Accepted and incorporated in substance.

22. Rejected because it is not supported by persuasive competent

substantial evidence.

23. Accepted and incorporated in substance.

COPIES FURNISHED:

Richard J. Grosso, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Michael A. Lipsky, Esquire

444 Brickell Avenue

Suite 1010

Miami, Florida 33131

John Dellagloria, Esquire

Sandra W. Schneider, Esquire

Office of the City Attorney

City of Miami Beach

1700 Convention Center Drive

Miami Beach, Florida 33319

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

G. Steven Pfeiffer, Esquire

General Counsel

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF COMMUNITY AFFAIRS

MILDRED FALK and MIAMI BEACH

HOMEOWNERS ASSOCIATION,

Petitioners,

vs. DOAH CASE NO. 89-6803GM

CITY OF MIAMI BEACH and

DEPARTMENT OF COMMUNITY AFFAIRS,

Respondents.

_________________________________/

FINAL ORDER

On August 13, 1990, a Hearing Officer of the Division of

Administrative Hearings entered his Recommended Order in this

proceeding. The Recommended Order was received by the Department

of Community Affairs ("Department" hereafter) on August 14, 1990.

A copy is attached to this Order as Exhibit A.

BACKGROUND

This is a proceeding in which the Petitioners, Mildred Falk

and Miami Beach Homeowners Association, have challenged the

comprehensive plan adopted by the City of Miami Beach ("City"

hereafter) in accordance with the Local Government Comprehensive

Planning and Land Development Regulation Act, Ch. 163, Part II,

Fla. Stat. ("Act" hereafter). The Department issued its Notice of

Intent to find the comprehensive plan in compliance with the Act.

Petitioners filed a petition in accordance with Sec. 163.3184(9),

Fla. Stat., alleging that the plan was not in compliance with the

Act for reasons that are summarized below. The Department

forwarded the petition to the Division of Administrative Hearings.

A Hearing Officer was assigned, and the final hearing was

conducted on May 22 and 24, 1990, in Miami Beach. Another

petition challenging the City's Comprehensive Plan was filed by

different parties. That petition was also forwarded to the

Division of Administrative Hearings, where it was given Case No.

89-6804GM. Issues raised in the two proceedings were distinct,

and the proceedings were not consolidated. The hearing in Case

No. 89-6804GM was conducted immediately following the hearing in

the instant proceeding. The Hearing Officer has not yet entered a

recommended order in Case No. 89-6804GM.

In his Recommended Order in this proceeding, the Hearing

Officer made detailed findings of fact and conclusions of law. He

determined that the comprehensive plan was in compliance with the

Act, and recommended that the Department enter a final order

finding the plan in compliance. Petitioners and the Department

have filed exceptions to the Recommended Order. The City has

filed a response to the Department's exceptions.

RULINGS ON EXCEPTIONS

A. PETITIONERS' EXCEPTIONS

Petitioners' Exception 1

Petitioners' first exception states: "The Findings of Fact

and Conclusions of Law are contrary to the facts and/or the law."

The Department's Rule 9J-11.012 (8) (g), Fla. Admin. Code

provides that exceptions must state with particularity the basis

for asserting that the Hearing Officer erred in making or omitting

specific findings of fact, conclusions of law, or recommendations.

Petitioner's first exception falls far short of this requirement.

The Department can reject findings of fact in the Recommended

Order only if it determines from a review of the complete record

that findings are not supported by competent substantial evidence,

or that the proceedings departed from essential requirements of

law. Sec. 120.57 (1) (b) 10, Fla. Stat. Petitioners have not

demonstrated that the findings of fact in the Recommended Order

are not supported by competent substantial evidence in the record.

There is nothing in the record or in Petitioner's exceptions that

suggests that the proceedings were conducted other than in

accordance with legal requirements. While the Department can

reject or modify conclusions of law, and has done so in this

proceeding as set out below, this exception provides no guidance

as to what conclusions Petitioners contend are contrary to law.

Petitioners' first exception is rejected.

Petitioners' Exception 2

Petitioners contend that the Hearing Officer failed to

consider that Petitioner Mildred Falk is known to the City to

represent both herself and the Petitioner Homeowners Association.

In order to demonstrate the requisite interest to establish

standing to challenge a local government comprehensive plan, an

affected person must have submitted oral or written objections

during the local government's review and adoption proceedings.

Sec. 163.3184 (1) (a), Fla. Stat. In this instance, both Ms. Falk

and the Association have established that they own property within

the City. They are therefore "affected persons" within the

meaning of the Act. The City raised an issue as to whether Ms.

Falk's statements in public hearings constituted statements of the

Association because she did not expressly identify herself as

speaking for the Association.

Petitioners' exception to the Hearing Officer's conclusions

in this respect is misplaced. The Hearing Officer expressly

concluded in Footnote 7 to Paragraph 17 of his Conclusions of Law

that Falk's statements were made on her own behalf and on behalf

of the Association. He based this conclusion on the facts that

Ms. Falk regularly appeared before the City Commission

representing the Association, that she was well known to appear in

that capacity, that she was registered with the City as a lobbyist

for the Association, and that she had been authorized by the

Association to appear in that capacity.

The Hearing Officer concluded that both Petitioners lacked

standing because objections made by Ms. Falk were not adequate to

constitute objections within the meaning of the Act. While these

conclusions have been rejected in this Order, the conclusion that

Ms. Falk appeared on behalf of the Association is not rejected.

Petitioners' second exception is rejected.

Petitioners' Exception 3

Petitioners contend that the Hearing Officer failed to

consider that objections raised by Ms. Falk included an objection

to "green space." Presumably, it is their position that since Ms.

Falk mentioned green space she therefore raised issues regarding

urban sprawl, and her objections should have been found sufficient

by the Hearing Officer. The Department has rejected the Hearing

Officer's conclusions that Ms. Falk's objections were not

sufficient to constitute objections within the meaning of the Act.

Therefore whether her saying "green space" constitutes an

objection raising issues relating to urban sprawl does not need to

be addressed.

Petitioner's third exception is rejected.

Petitioners' Exceptions 4, 5 and 7

Petitioners contend that the Hearing Officer failed to

consider that the "Neighbors" section of the Miami Herald is not

distributed throughout Dade County, and that because the City is a

tourist area, notice requirements dictate notice throughout the

County. The City published its notices of public hearings

regarding adoption of its comprehensive plan in a section of the

Miami Herald that is published twice weekly and distributed in

Miami Beach and other municipalities in eastern Dade County, but

not throughout Dade County. This is the "Neighbors" section. For

the reasons stated by the Hearing Officer in paragraphs 29- 38 of

his conclusions of law, the Department has determined that this

publication meets the notice requirements of the Act.

Petitioners fourth, fifth and seventh exceptions are

rejected.

Petitioners' Exception 6

Petitioners' challenge to the City's comprehensive plan

relates to provisions of the plan that recognize action previously

taken by the City to trade a portion of a Par-3 Golf Course owned

by the City for adjoining property and a building that is owned by

a religious institution. The institution plans to use the golf

course land to expand a school which it operates. The City intends

to use the building it is obtaining to house various government

offices. The golf course will be maintained, but it will be

diminished in size, and undoubtedly will be less desirable a golf

course than it is now.

Petitioners contend that the Hearing Officer failed to

consider proposed use of part of a golf course for office purposes

as constituting urban sprawl. A golf course is an urban use, and

in the case of the golf course in this proceeding, it is an urban

use in an otherwise heavily urban area. The Department's rules

require that local government comprehensive plans discourage

proliferation of urban sprawl. Rule 9J-5.006 (3) (b) 7, Fla.

Admin. Code. Failure to meet this requirement constitutes grounds

for finding a plan not in compliance with the Act. Charlotte

County v. Department of Community Affairs, ER FALR 90:130

(Administration Commission 1990). However, transferring an urban

use such as a golf course to another urban use such as an office

building in an area that is already urban does not constitute

urban sprawl.

Petitioner's sixth exception is rejected.

Petitioners' Exceptions 8 10 and 11

Petitioners contend that the Hearing Officer overlooked the

adverse impacts upon the golf course, and did not consider effects

on wildlife. The Hearing Officer's findings of fact regarding the

golf course are supported by competent substantial evidence in the

record. While it can be argued that diminishing the golf course

is less desirable than obtaining office space, Petitioners have

failed to demonstrate that the policy choice renders the City's

plan not in compliance with the Act.

Petitioners' eighth, tenth and eleventh exceptions are

rejected.

Petitioners' Exception 9

The grounds for the challenge set out in the petition are

that the property transfer violates deed restrictions, fails to

discourage urban sprawl, may violate State and Federal

Constitutional provisions related to establishment of a religion,

was not done for a valid public purpose, and was done without any

appraisal designed to assure equalization of the value of property

being exchanged. The Hearing Officer granted a motion to dismiss

filed by the City, and declined to consider issues other than

those related to urban sprawl and procedural irregularities.

Petitioners contend that the Hearing Officer should have

addressed the other issues. Their contention is rejected. The

issue in this proceeding is whether the City's adopted

comprehensive plan is in compliance with the Act. "In compliance"

is defined at Sec. 163.3184 (1) (b), Fla. Stat. to mean consistent

with provisions of the Act, the State Comprehensive Plan, the

appropriate regional policy plan, and the Department's rules set

out at Ch. 9J-5, Fla. Admin. Code. Constitutional and contractual

issues raised by Petitioners may or may not be subject to

resolution in some other proceeding by some other forum, but they

do not relate to whether the City's plan is in compliance with the

Act.

Petitioners ninth exception is rejected.

B. DEPARTMENT'S EXCEPTIONS

The Department takes exception to conclusions of law set out

in Paragraphs 17, 18, and 19 of the Conclusions of Law in the

Recommended Order. The Hearing Officer equated the meaning of the

term "objection" that is defined in the Department's rules

relating to review of local government comprehensive plans by the

Department (Ch. 9J-11, Fla. Admin. Code) with the meaning of the

term "objection" as it is used with regard to the requirement that

affected persons make objections during review and adoption

proceedings in order to secure standing. The definition in the

rule requires some detail on the part of the Department when it

submits its "Objections, Recommendations and Comments Report" to

the local government. Imposing the same level of detail on

private citizens making objections in order to secure standing

would severely limit the sort of public comment that would confer

standing.

The Department has rejected the Hearing Officer's conclusions

set out in paragraphs 17, 18, 19, and 20 of the Conclusions of Law

in the Recommended Order for the reasons set out below. The

Department's exceptions are therefore granted.

FINDINGS OF FACT

The Findings of Fact set out in the Hearing Officer's

Recommended Order are hereby adopted, and are incorporated herein

by reference.

CONCLUSIONS OF LAW

1. Conclusions of Law 1-16, and 21-39 set out in the Hearing

Officer's Recommended Order are hereby adopted, and are

incorporated herein by reference.

2. Conclusions of Law 17, 18, 19, and 20 set out in the

Hearing Officer's Recommended Order, and footnotes to these

conclusions are hereby rejected. The following conclusions of law

are substituted for the rejected conclusions.

A. Both Petitioners established that they are

"affected persons" within the meaning of the Act. In order

to demonstrate their standing to challenge the City's

comprehensive plan, Petitioners must also demonstrate that

they made objections during review and adoption proceedings

conducted by the City after the Department issued its

"Objections, Recommendations and Comments Report" and before

the City adopted the plan. Sec. 163.3184 (1) (a), Fla.

Stat.; Austin v. Department of Community Affairs, ER FALR

89: 0128 (Administration Commission, 1989). The only

remarks Petitioner Falk or the Petitioner Association

directed to the City Commission during the review and

adoption proceedings were those made by Falk during her oral

presentations at the September 7 and 21, 1989, public

hearings held by the City Commission. The City contends

that these remarks did not constitute "objections," as that

term is used in Sec. 163.3184 (1) (a), Fla. Stat., and that

therefore neither Falk nor the Association have standing to

challenge the City's plan. The City's contention is

rejected.

B. The Act does not contain a definition of the term

"objection." A definition of the word does appear in rules

of the Department that establish procedures for review of

local government comprehensive plans. Rule 9J-11.002 (6),

Fla. Admin. Code provides:

"Objection" means a statement which identifies a

portion of a comprehensive plan or plan amendment

that is not consistent with one or more provisions

of Section 163.3177, 163.3178, 163.3191, Florida

Statutes, the state comprehensive plan, the

appropriate comprehensive regional policy plan, or

Chapter 9J-5, Florida Administrative Code.

This definition applies throughout Ch. 9J-11, Fla. Admin.

Code. Nothing in the Chapter, however, purports to set

standards for "objections" that are made by affected persons

during a local government's review and adoption proceedings.

The term "objection" is used in Ch. 9J-11, only to describe

objections that are made by the Department in connection

with its review of a proposed plan, and by other agencies

that provide reports to the Department to assist in the

Department's review of proposed plans. Rules 9J-11.008 (5);

9J-11.009 (5); 9J-11.010 (2), (3); 9J-11.011 (3) (c); 9J-

11.012 (2), Fla. Admin. Code. The only reference in the

rule to objections by affected persons relate to allegations

that must be included in a petition challenging a local

government comprehensive plan in the event that the

Department issues a notice of intent to find the plan in

compliance with the Act. Rule 9J-11.012 (8) (a) 5, Fla.

Admin. Code.

C. These rules are not intended to impose the strict

requirements for making objections on private persons that

the Department has imposed on itself. To do that would

limit the ability of members of the public to perfect their

standing to challenge local government comprehensive plans.

The intent of the Legislature to promote public

participation in the process is clearly stated in the Act.

Section 163.3181, Fla. Stat. provides:

(1) It is the intent of the Legislature that

the public participate in the comprehensive

planning process to the fullest extent possible.

Towards this end, local planning agencies and

local governmental units are directed to adopt

procedures designed to provide effective public

participation in the comprehensive planning

process and to provide real property owners with

notice of all official actions which will regulate

the use of their property. The provisions and

procedures required in this act are set out as the

minimum requirements towards this end.

(2) During consideration of the proposed

plan or amendments thereto by the local planning

agency or by the local governing body, the

procedures shall provide for broad dissemination

of the proposals and alternatives, opportunity for

written comments, public hearings as provided

herein, provisions for open discussion,

communications programs, information services and

consideration of and response to public comments.

D. This clear intention to open the planning process

to the fullest possible public participation was carried

over in the Act to very liberal provisions governing who has

standing to intervene in formal proceedings related to

whether a plan is in compliance with the Act, or to initiate

such proceedings. "Affected persons" have these rights. To

be an affected person, one need only own property, reside,

or own or operate a business within the boundaries of the

local government whose plan is the subject of review. Sec.

163.3184 (1) (a), Fla. Stat. This list of "affected

persons" is not even exclusive. The definition "includes"

the designated interests, and, properly construed, would

confer standing on persons whose interests are similar to

those enumerated.

E. It would be contrary to the Legislative

prescription to open the process if, in order to secure

standing, private citizens were required to make objections

that meet technical requirements for sufficiency that are

properly imposed upon agencies whose responsibilities

include developing expertise in reviewing local government

comprehensive plans. Such a construction would mean that

persons who support provisions of comprehensive plans could

never gain standing to intervene in plan review proceedings

in support of local governments. Such parties have been

allowed to participate in numerous plan review proceedings,

and their participation has been found appropriate in final

orders issued by the Administration Commission and by the

Department. Charlotte County v. Department of Community

Affairs, ER FALR 90: 130 (Administration Commission, 1990);

Sunshine Ranches Homeowner's Association. Inc. v. Broward

County, ER FALR 90: 157 (Department of Community Affairs,

1990).

F. The comments made by Ms. Falk at public hearings

conducted by the City may not have artfully identified how

provisions of the plan to which she clearly had objections

failed to meet requirements of the Act. It had to be

perfectly clear to everyone, however, that she objected to

the plan, and her objections related to provisions dealing

with diminishing the size of the golf course. Her

statements at the public hearings were sufficient to

constitute objections under Sec. 163.3184 (1) (a), Fla.

Stat.

G. The City has contended that when Ms. Falk made

statements at the public hearing she was acting only on her

own behalf and not also as a representative of the

Association. Findings of Fact in the Recommended Order,

which are supported by competent substantial evidence show

otherwise. While the Association's Board of Directors may

not have specifically directed Ms. Falk to represent the

Association at these public hearings, in speaking on behalf

of the Association she was acting within the scope of her

authority.

H. Petitioners, Mildred Falk and Miami Beach

Homeowners Association, are affected persons within the

meaning of the Act. They made objections to the plan during

review and adoption proceedings conducted by the City.

Petitioners have standing to challenge the plan in

accordance with Sec. 163.3184 (9), Fla. Stat.

I. This order does not finally resolve all issues

regarding whether the City's plan is in compliance with the

Act. Another challenge to the plan remains pending at the

Division of Administrative Hearing as Case No. 89-6804GM.

ORDER

The Comprehensive Plan adopted by the City of Miami Beach is

determined to be in compliance with the Local Government

Comprehensive Planning and Land Development Regulation Act as

against the challenge filed by Petitioners Mildred Falk and Miami

Beach Homeowner's Association.

NOTICE OF RIGHTS

The parties to this proceeding are hereby advised of their

right to seek judicial review of this Final Order pursuant to

Section 120.68, Fla. Stat., and Florida Rules of Appellate

Procedure 9.030 (1) c and 9.110. To initiate an appeal, a Notice

of Appeal must be filed with the Department's Clerk of Agency

Proceedings, Rhyne Building, 2740 Centerview Drive, Tallahassee,

Florida 32399-2100, and with the appropriate District Court of

Appeal within 30 days of the filing of this Final Order with the

Department's Clerk of Agency Proceedings. A Notice of Appeal

filed with the District Court of Appeal should be accompanied by

the filing fee specified in Section 35.22 (3), Fla. Stat.

DONE and ORDERED this 12th day of September, 1990.

_________________________________

Thomas G. Pelham, Secretary

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Copies Furnished:

Michael A. Lipsky, Esquire

444 Brickell Avenue

Suite 1010

Miami, Florida 33131

John Dellagloria, Esquire

Sandra W. Schneider, Esquire

Office of the City Attorney

City of Miami Beach

1700 Convention Center Drive

Miami Beach, Florida 33319

Stephenie Gehres, Esquire

Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

Stuart M. Lerner,

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550