04-001080GM Ellen Monkus, James Veber, And Gonzalo De Ramon vs. City Of Miami Status: Closed Recommended Order on Friday, September 3, 2004.

Summary: Petitioners did not prove by a preponderance of the evidence that the small scale plan amendment to the future land use map was inconsistent with the City`s Comprehensive Plan. Florida Admin. Code Rule 5J-5.002 and Section 163.3184, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELLEN MONKUS, JAMES VEBER, and )

GONZALO DE RAMON, )

)

Petitioners, )

)

vs. ) Case No. 04 - 1080GM

)

CITY OF MIAMI, )

)

Respondent, )

)

and )

)

RAD MIAMI RIVER - PHASE I, LLC, )

and RAD MIAMI RIVER - PHASE II, )

LLC, )

)

Intervenors. )

)

RECOMMENDED ORDER

Notice was given and on July 7 through 9, 2004, a final

hearing was held in this case. Pursuant to Sections 120.569,

120.57(1), and 163.3187(3)( a), Florida Statutes (2003), 1 the

final hearing was conducted by Charles A. Stampelos,

Administrative Law Judge, in Miami, Florida.

APPEARANCES

For Petitioners Ellen Monkus, James Veber, and

Gonzalo De Ramon:

Andrew W. J. Dickman, Esquire

Odelsa D. McConnell, Esquire

Law Offices of Andrew Dickman, P.A.

9111 Park Drive

Miami Shores, Florida 33138 - 3159

For Respondent City of Miami:

Rafael Suarez - Rivas, Esquire

City of Miami

Miami Riverside Center, Suite 945

444 Southwest Second Avenue

Miami, Florida 33130 - 1910

For Intervenors RAD Miami River – Phase I, LLC, and RAD Miami

River - Phase II, LLC:

Paul R. Lipton, Esquire

Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, Florida 33131 - 3224

and

David C. Ashburn, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32301 - 4472

STATEMENT OF ISSUES

Whether the Small Scale Comprehensive Plan Amendment No.

2003 - 03 (Plan Amendment) to the City of Miami Future Land Use

Map (FLUM), adopted by Ordinance No. 12492, is "in compliance"

as d efined by Section 163.3184(1)(b), Florida Statutes, and

whether Petitioners have standing as “affected person[s]” as

defined by Section 163.3184(1)(a), Florida Statutes, in this

proceeding.

PRELIMINARY STATEMENT

On February 26, 2004, the City of Miami (Cit y) amended its

FLUM by the adoption of Ordinance No. 12492. This Ordinance

changes the designated future land use from “Industrial” to

“Restricted Commercial” for a 6.31 - acre parcel of property

located on the Miami River at 1007 Northwest 7th Street in

Mi ami, Florida.

On March 26, 2004, Petitioners filed a Petition Challenging

Compliance of Small - Scale Comprehensive Plan Amendment with the

Florida Growth Management Act (Petition) with the Division of

Administrative Hearings (Division) pursuant to Section

163.3187(3), Florida Statutes. Petitioners sought to contest

the City’s FLUM Plan Amendment on the grounds that the Plan

Amendment is inconsistent with several provisions of the City’s

adopted Comprehensive Plan (Comprehensive Plan), and is not in

complia nce with Section 163.3177(2) and (6)(a), Florida

Statutes, and Florida Administrative Code Rule 9J - 5.005(2).

On or about April 12, 2004, Royal Atlantic Developers, LLP

(Royal) filed an unopposed Petition to Intervene, and was

granted the right to interve ne in this case in support of the

City.

On April 23, 2004, an Order of Pre - hearing Instructions and

Notice of Hearing setting the final hearing set for July 7

through 9, 2004, in Miami, Florida, were entered.

On April 23, 2004, Royal filed a Motion to Amen d Petition

to Intervene, which was granted on April 26, 2004. Intervenor’s

name was changed to RAD Miami River - Phase I, LLC, and RAD Miami

River - Phase II, LLC (RAD).

Also on May 17, 2004, RAD filed a Motion for Partial

Summary Final Order, which was joine d in by the City at a later

date.

On May 19, 2004, an Order was issued indicating that RAD’s

Motion for Partial Summary Final Order would be treated as a

motion in limine.

On June 25, 2004, Petitioners filed a response to RAD’s

motion.

On June 28, 2004, a telephone hearing was held on RAD’s

motion. After hearing argument of counsel, RAD’s motion was

denied without prejudice.

On July 6, 2004, the parties filed their joint Pre - Hearing

Stipulation. RAD also filed a Motion for Recommended Order of

Dismissal . On the same day, Petitioners filed their response to

RAD’s Motion for Recommended Order of Dismissal.

On July 7 through 9, 2004, the final hearing was held in

Miami, Florida.

Petitioners called Dr. Ellen Monkus; James Veber;

Gonzalo De Ramon; Ana Gelabe rt - Sanchez, the City’s Director of

the Planning and Zoning Department; Brett Bibeau, Managing

Director of the Miami River Commission; Herbert Payne, a tugboat

captain on the Miami River; Francis M. Bohnsack, Executive

Director of the Miami River Marine Gro up; and Jack Luft,

A.I.C.P., an expert in land use planning. Petitioners’ E xhibits

1 through 5 were admitted into evidence.

RAD called Guillermo Olmedillo, A.I.C.P., an expert in land

use planning. RAD’s E xhibits 1 through 6 were admitted into

evidence .

The City called Lourdes Slyazk, Assistant Director of the

City’s Planning and Zoning Department and an expert in land use

planning. The City’s E xhibits 1 and 2 were admitted into

evidence.

Joint Exhibits 1 through 5 were admitted into evidence.

Th e Transcript (Volumes I through V) of the final hearing

was filed with the Division on August 2, 2004. Petitioners

filed a Proposed Recommended Order, and RAD and the City filed a

Joint Proposed Recommended Order and a Memorandum Of Law in a

timely fashio n. All post - hearing submissions have been

considered in preparing this Recommended Order.

FINDINGS OF FACT

I. Background

A. The Parties

1. Petitioners, Dr. Ellen Monkus, James Veber, and

Gonzalo De Ramon, reside in Spring Garden, a historic

neighborhood located within the City of Miami, across the Miami

River and to the north of the pr operty subject to the Plan

Amendment. Petitioners do not own or operate a port facility,

or property on which a port facility is located or property that

falls within the definition of “Port of Miami River” found in

the City’s Comprehensive Plan. See Fin ding of Fact 53.

Petitioners do not own property within the East Little Havana

neighborhood. Petitioners are members of the Spring Garden

Civic Association (Association) and Mr. Veber is the president

of the Association. Dr. Monkus is a physician and re tired from

the University of Miami School of Nursing. Mr. De Ramon is a

senior vice president for community development for Bank of

America; a board member of the Miami - Dade Affordable Housing

Advisory Board; and the chair of the Housing Committee for the

Homeless Trust. Petitioners are “affected person[s]” and have

standing to participate in this proceeding. See Findings of

Fact 26 - 31.

2. The City is a political subdivision of the State of

Florida. The City initially adopted its Comprehensive Plan in

1989, and it was most recently revised in April 2004.

3. RAD owns the 6.31 - acre parcel (the Property), which is

subject of the Plan Amendment. RAD submitted comments to the

City at both City Commission hearings held on January 22, 2004,

and February 26, 200 4. RAD is an “affected person” and has

standing to participate as a party in this proceeding.

B. The Property

4. The parties stipulated that the Property is located on

the south side of the Miami River in the East Little Havana

neighborhood. 2 The Prope rty is situated on the part of the Miami

River known as the “middle river.” See Finding of Fact 35.

5. The Property is bordered by Northwest 7th Street and

South River Drive to the south, a Dade County maintenance

facility and a fire station to the west, a nd a marine

maintenance facility to the east. See Intervenors’ Exhibits 1

and 2, for two photographs and identifications of the

surrounding area. 3

6. The P roperty has been vacant for at least ten years.

7. The Property was designated “Industrial” on the Cit y’s

FLUM prior to the challenged Plan Amendment, which changed the

land use to “Restricted Commercial.” See Endnote 4.

8. Across the Miami River to the north are “Medium Density

Multifamily” and “Single Family Residential” land use

designations where the P etitioners reside.

C. The Small Scale Plan Amendment Application

9. On or about November 4, 2003, RAD’s predecessor in

interest filed with the City an application (Application),

requesting a change in land use designation for the Property

from “Industria l” to “Restricted Commercial” by amending the

FLUM of the Comprehensive Plan. 4 The Application was submitted

at the same time as applications for a zoning change and a major

use special permit (MUSP), because RAD intends to develop a

mixed - use project (th e Development Project) on the Property. As

stipulated, the Application included all items required by all

applicable statutes and ordinances for the requested Plan

Amendment.

10. Prior to the submission of the land use change

Application, the Miami River Comm ission (MRC) and the Miami

River Commission Urban Infill Working Group and Greenways

Subcommittee (MRC Subcommittee) reviewed the Development

Project. 5 The composition of the MRC (18 members) is determined

by Section 163.06, Florida Statutes, and includes a neighborhood

representative from Spring Garden, the Chair of the Miami River

Marin e Group, and the Chair of the Marine Council. The MRC acts

only in an advisory capacity to the City on issues affecting the

Miami River. The MRC provides the Commission with “an official

statement” on items impacting the Miami River.

11. When the MRC revie ws proposed projects, it determines

only if the projects comply with the Miami River Greenway Action

Plan 6 and the Miami River Corridor Urban Infill Plan (UIP), 7

which is the MRC’s strategic plan . Although adopted by the MRC

in 2002, the UIP has not been adopted by the City and is not

binding on the City’s decisions.

12. After reviewing the Development Project, the MRC

Subcommittee voted to recommend to the MRC that it be approved,

subject to conditions to which RAD agreed.

13. Upon receiving the MRC Subcommittee’s recommendation,

the MRC unanimously (of the members present) voted to recommend

approval of the Development Project based on the findings that

it is co nsistent with the UIP and the Miami River Greenway

Action Plan (Greenway Plan). The Greenway Plan is incorporated

into the UIP, but is a separate plan. See Endnote 6.

14. The MRC submitted a letter, which reflected its

recommendation, to the City’s Planning and Zoning Department

(P&Z Department) and presented its recommendation to the

Commission at the Commission’s January 22, 2004, and

February 26, 2004, meetings. 8

15. The P&Z Department reviewed the Application and

presented its analysis and favorable recomme ndation to the

City’s Planning Advisory Board (PAB).

16. On December 17, 2003, after a public hearing, the PAB

voted to recommend approval of the land use change.

17. The Application was presented to the Commission at

public hearings held on January 22, 20 04 (“First Reading”), and

February 26, 2004 (“Second Reading”), (collectively the

Commission Hearings), at which time the P&Z Department provided

its written analysis and recommendation for approval of the

Application. 9 (The application for the zoning cha nge was also

presented to the Commission on January 22, 2004. On

February 26, 2004, the Commission also considered the Plan

Amendment, the zoning change, and the MUSP application.)

18. The P&Z Department’s recommendation for approval of

the Plan Amendment to ok into consideration that “the change to

‘Restricted Commercial’ is also a logical designation and will

allow greater flexibility in developing the property in a manner

that will be beneficial to the surrounding area.” The analysis

also stated that “the existing land use pattern in this

neighborhood should be changed” because, in part, the Plan

Amendment “promotes and facilitates economic development and

growth of job opportunities in the City” under Goal LU - 1 and

“encourage[s] a diversification in the mi x of d [sic] commercial

activities” under Policy LU - 1.3.6.

19. The analysis concluded by stating that the

“Concurrency Management Analysis pertaining to concurrency

demonstrates that no levels of service would be reduced below

minimum levels” due to redevelop ment of the Property, as

required by Land Use Policy 1.1.1. See Finding of Fact 42.

20. The Commission voted to approve RAD’s request for a

land use change at both the First and Second Readings and

adopted Ordinance No. 12492, which amended the FLUM. (The

C ommission also approved the zoning change and the MUSP.)

D. The Challenge

21. Petitioners challenge the internal consistency of the

Plan Amendment with certain goals, objectives, and policies of

the Comprehensive Plan and the sufficiency of data and analysis

to support the Plan Amendment.

II. Standing

A. Introduction

22. RAD and the City contend that Petitioners lack

standing to maintain this proceeding, because they do not

qualify as “affected person[s]” as defined by Section

163.3184(1)(a), Florida Statutes.

23. Petitioners reside in Spring Garden, a historic

neighborhood in the City of Miami, located across the Miami

River and to the north of the Property. RAD and the City,

however, assert that Petitioners failed to submit oral or

written comments, recommendatio ns, or objections “during the

period of time beginning with the transmittal hearing for the

plan amendment and ending with the adoption of the plan

amendment.” § 163.3184(1)(a), Fla. Stat. The prescribed time

period will be referred to as the “Comment Pe riod.”

B. Comment Period

24. The parties agree that the Comment Period ended on

February 26, 2004, the date on which the Commission voted to

adopt the Plan Amendment, but disagree as to the beginning date

of the Comment Period.

25. The Commission holds two pu blicly noticed hearings for

small scale amendments, because the City uses ordinances as the

means by which small scale plan amendments are implemented.

The Department of Community Affairs (Department) does not review

or issue a notice of intent regardin g small scale plan

amendments. § 163.3187(3)(a), Fla. Stat. The Comment Period

commenced at the first of those hearings — the First Reading.

C. Petitioners’ Comments, Objections, and Recommendations

26. As noted, on January 22, 2004, the Commission held its

First Reading on the land use change and the zoning change. See

Intervenor’s Exhibit 5. Mr. Dickman advised that he was

“representing the neighborhood of Spring Garden” regarding the

two items. Prior to presenting the testimony of two witnesses,

Mr. Dic kman further advised that he was “representing Spring

Garden Civic Association.”

27. The Commission’s Chairman advised that both items were

on the agenda and that Mr. Dickman would technically be entitled

to two presentations, but that normally “everybody co mes up and

says what they’ve got to say on both” and this was understood by

Mr. Dickman.

28. Mr. Dickman put into the record approximately over 100

signatures collected from neighbors and appears to reflect, in

part, residents on the north side in Spring Garde n and south of

the Miami River. These signatures appear to be part of

Petitioners’ Exhibit 2, including Petitioners’ Exhibit 1, a one -

page sheet including the name and signature of Mr. De Ramon.

The signatories opposed the requested MUSP, the land use

am endment, and the re - zoning to allow the construction of the

project. In particular, the “Petition in Opposition” states in

part: “The proposed height and bulk of this project is out of

scale with the single family and low density character of the

Histori c Spring Gardens Neighborhood and surrounding

areas . . . .” It does not appear that Petitioners, Dr. Monkus

and Mr. Veber signed the Petition, although each Petitioner

testified during the First Reading and Mssrs. Veber and De Ramon

testified during the Second Reading. During the Second Reading,

Mr. Dickman announced that he was “representing the homeowners

in Spring Garden.” During both hearings, Mr. Dickman opposed

the Development Project and the MUSP, the zoning change, and the

land use change.

29. Du ring the final hearing, Mr. De Ramon stated that he

had legal representation at the First and Second Readings. It

is a fair inference that he was referring to Mr. Dickman.

Mr. Veber states that he retained Mr. Dickman to represent him

at the Second Readi ng.

30. During both hearings before the Commission,

Petitioners’ objections and comments mainly addressed the

following issues: RAD’s alleged failure to demonstrate hardship

based on the current land use; the Development Project’s design,

height, and dens ity; the alleged need for mixed income housing

in the neighborhood; “gentrification”; traffic; alleged light

pollution; Petitioners’ contention that the Property’s zoning

should be low - density residential; Petitioners’ contention that

the Property should b e used as a senior residential community or

park; RAD’s sound study; the Development Project’s feasibility

analysis; and the increase in neighborhood property values.

31. Based upon the weight of the evidence and fair

inferences to be derived from the evidence , it is concluded that

Petitioners made comments, objections, and/or recommendations

regarding the Plan Amendment during the Comment Period.

III. Data and Analysis

32. Petitioners contend that the Plan Amendment is not in

compliance with Florida Administrati ve Code Rule 9J - 5.005(2),

because the Plan Amendment is not based on relevant and

appropriate data, which was collected and applied in a

professionally acceptable manner. Petitioners argue that the

Plan Amendment is inconsistent with Section 163.3177(6)(a ),

Florida Statutes, because there is insufficient data and

analysis to support the Plan Amendment.

33. Petitioners did not prove that the data and analyses

considered by and available to the City in approving the Plan

Amendment was insufficient to support ap proval of the plan

Amendment. See Conclusions of Law 92 - 96. Moreover, approval of

the Plan Amendment is supported by substantial data (in

existence at the time the Plan Amendment was adopted) and

appropriate analysis.

34. A pproval of the Plan Amendment is co nsistent with the

City’s analysis of the location of the Property and the

surrounding neighborhood.

35. The Property is located on the lower part of the

“middle river,” 10 close to downtown, and is situated near public

transportation, the City’s major employment areas, and the Civic

Center. 11 The Civic Center , which includes medical facilities

and the Criminal Justice Center, is near Northwest 12th Avenue

and north of and close to the Miami River. The Property is east

of Northwest 12th Avenue and south of the Miami River.

36. T he Property is located within an area designated by

the City for urban infill. The UIP specifically designates the

Property (within the middle river) as an urban inf ill site,

which means that the Property is considered “ripe” for

redevelopment. (The Property’s urban infill designation post -

dates the 1992 Miami River Master Plan.)

37. U rban infill is also part of the “Eastward Ho”

planning concept, which encourages urban infill growth where

there is sufficient infrastructure to support it. (The

“Eastward Ho” program was created by the Department to encourage

a philosophy of development that the City has embraced, although

it is not a part of the Comprehensive Plan.) Urba n infill is

encouraged in order to prevent further westward urban sprawl,

which results in over - development in the suburbs, impacting the

roadways and the environment.

38. Urban sprawl may occur when land is developed at a

very low density, i.e. , by using sig nificant parcels of land for

a limited number of activities, which, in turn, may yield an

inefficient use of land and infrastructure. It was not proven

that the Plan Amendment is urban sprawl or will lead to the

proliferation of urban sprawl. Also, Petit ioners did not prove

that there is an over - allocation of residential land uses in the

City. See Sierra Club , infra , Final Order at 9 - 10.

39. Eastward Ho promotes the return of residents to the

City and encourages residential, commercial, and retail

redevelopm ent in the City.

40. Properties that are especially appropriate for urban

infill are those that are vacant, underdeveloped, underutilized

and/or blighted and are located near public facilities, major

employment areas, and transportation. Such properties are

c onsidered ideal for mixed - use development of residential and

commercial uses, which promote efficient use of public

facilities. Land designated as Industrial may be used in a

manner that promotes the increased employment opportunities goal

of the urban in fill concept, but, by definition, it is not

likely to be used in a manner that would meet other goals of

urban infill such as the promotion of mixed - use projects that

also include residential development and promote efficient use

of public facilities.

41. T he Property’s location is suitable for urban infill

because it is near public transportation, it benefits from

natural amenities afforded by being on the Miami River, and it

is located in an area that the City is trying to revitalize.

Furthermore, the Pr operty is not currently used for marine

industrial purposes; indeed, it has long been vacant.

42. The Plan Amendment was also subjected to a concurrency

management analysis, the purpose of which was to determine

whether existing public facilities are suff icient to support the

levels of additional development permitted under the Restricted

Commercial land use designation sought by RAD. See City’s

Exhibit 2. The result of the concurrency management analysis

(which included consideration of the potential de mands on the

City’s roadways, potable water supplies, sanitary sewer

transmission systems, storm sewer capacity, and solid waste

capacity) was a determination that potential development of the

Property under the Restricted Commercial designation would not

cause a breach of the LOS standards applicable to the City’s

facilities and resources.

43. The City’s analysis of the Plan Amendment also

included consideration of the MRC letter of recommendation, City

planning staff’s general knowledge of the UIP, the Miami River

Master Plan, 12 and a housing shortage in the City identified by a

quasi - City agency known as the Downtown Development Authority.

44. The Applicant prepared an economic impact analysis,

which was in existence at the time the City considered the Plan

Amendment. 13

45. Leaving a piece of property vacant in hopes that in

the future it can be used with its current land use designation

is not supported by good planning principles.

46. Petitioners’ expert, Mr. Luft, stated that a high -

density residential land u se is not necessarily incompatible

with marine industrial uses - “[t]hey can co - exist,” depending on

how the project is developed. But, Mr. Luft opined that the

Plan Amendment is inappropriate and inconsistent with the Port

of Miami River goals, objectives, and policies referred to

herein, because approving a potential high - density residential

land use next to an industrial use, creates uncertainty as to

how the marine industry will be protected, necessarily creating

an “incompatible environment.” Neverthel ess, Mr. Luft also

testified that Restricted Commercial is one of a number of

reasonable land use designations to consider for the Property.

He also agreed that the middle river could support a mixed - use

development of residential and commercial that coul d serve the

needs of the neighborhood. Further, Mr. Luft concurred that the

City should consider what is beneficial for the City as a whole.

IV. Internal consistency

A. Background

47. In general, Petitioners allege that the Plan Amendment

is inconsistent with Section 163.3177(6)(a), Florida Statutes,

because no goals, objectives, or policies of the Comprehensive

Plan supplement the Plan Amendment and that the P lan Amendment

is inconsistent with several provisions of the Comprehensive

Plan discussed below. Petition at 7.

48. The FLUM “is a planning instrument designed to guide

the future development and distribution of land uses within the

city in a manner that is consistent with the goals, objectives

and policies of the Miami Comprehensive Neighborhood Plan

(MCNP). The [FLUM] is a generalized map that does not depict

areas less than 2 acres.”

49. There are numerous goals, objectives, and policies

within the Comprehensive Plan that supplement the Restricted

Commercial land use designation sought by RAD. See , e .g. , Joint

Exhibit 1, Goal LU - 1, Objective LU - 1.3, Goal LU - 3, and

supporting Policies.

50. Petitioners did not prove that the Plan Amendment is

inconsistent with the goals, objectives, and policies in the

Comprehensive Plan cited by Petitioners.

B. Port of Miami River Element

51. Petitioners contend that the Plan Amendment is

inconsistent with Objective PA - 3.1, Policy PA - 3.1.1, Policy PA

3.1.2, Policy PA - 3.1.3, Objective PA - 3.3, Policy PA - 3.3.1, and

Policy LU - 1.3.1, because the Plan Amendment “allows the

encroa chment of the High Density Multifamily Residential land

use into a heretofore Industrial land use reserved for the Port

of Miami marine related industries.” Petition at 8.

52. Petitioners further allege that the Plan Amendment

does not comply with Section 16 3.3177(2), Florida Statutes, 14

because the Plan Amendment is inconsistent with the

Comprehensive Plan goals, objectives, and policies which are

aimed at retaining the current land use designation of

Industrial on those properties along the Miami River inte nded

for marine industrial use. Petition at 7.

53. “Port of Miami River” is a defined term, which

includes approximately 14 privately - owned shipping companies

that were in existence at the time that the Comprehen sive Plan

was adopted. 15 All of the goals, objectives, and policies use

the defined term Port of Miami River. Thus, these goals,

objectives, and policies apply solely to that defined term.

54. The Port of Miami River definition refers to

“companies” because those companies needed to be legally defined

as a port in connection with U.S. Coast Guard regulations.

Nevertheless, the Port of Miami River is not a publicly run

port. (Mr. Olmedillo and Ms. Slazyk opined that the Port of

Miami River is not a land use element, i.e. , there is no land

use designation in the FLUM referring to Port of Miami River.)

55. At the time that the Comprehensive Plan was adopted, a

private shipping company did not own the Property, nor was it

used for marine industrial purposes. Inst ead, it appears that

the Miami News occupied the Property.

56. Based on an examination of the Certificates of Use

maintained in the City’s public records and other evidence of

record relative to the Property, it does not appear that the

Property has ever bee n owned by any of the shipping companies

operating on the Miami River at the time of the City’s adoption

of the Comprehensive Plan.

57. Objective PA - 3.1 and Policies PA - 3.1.1, PA - 3.1.2, and

PA - 3.1.3 in the Port of Miami River E lement of the Comprehensive

Plan require the City to take certain actions through its “land

development regulations” (LDRs). LDRs are zoning ordinances,

which implement the Comprehensive Plan. See Joint Exhibit 1,

“Interpretation of the Future Land Use Plan Map.”

58. With respect to Object ive PA - 3.3, no persuasive

evidence was presented regarding the City’s Port of Miami River

planning activities or the Plan Amendment’s alleged

inconsistency with the City’s obligation to coordinate its Port

of Miami River planning activities with other agen cies.

59. Regarding Policy PA - 3.3.1, Petitioners offered no

persuasive evidence on the subject of the City’s

Intergovernmental Coordination Policies with respect to the Port

of Miami River and how the Plan Amendment is inconsistent with

the City’s obligation to use its Intergovernmental Coordination

Policies as the instrument by which it “support[s] the functions

of the Port of Miami River.”

60. Petitioners did not prove that the Plan Amendment is

inconsistent with these Comprehensive Plan provisions.

C. L and Use Element

61. Petitioners allege that the Plan Amendment is

inconsistent with goals, objectives, and policies of the land

use element of the Comprehensive Plan, specifically Goal LU - 1,

Objective LU - 1, Objective LU - 1.1, Policy LU 1.1.3, Objective LU -

1.5, Objective LU - 1.6, and Goal LU - 2, because the Plan Amendment

“puts existing residential neighborhoods at risk by introducing

an incompatible land use.” Petition at 8.

62. Although the City’s review of any application for a

comprehensive plan amendment involv es consideration of the

Comprehensive Plan as a whole, the land use element of the

Comprehensive Plan is of primary concern in the instant case

because it sets forth the goals, objectives, and policies that

directly concern land use.

63. As stated in the P&Z Department’s analysis, the Plan

Amendment is consistent with Goal LU - 1, and consistency with

Goal LU - 1 necessarily includes consistency with the objectives

and policies that further that goal.

64. The key part of Goal LU - 1 that is relevant to the Plan

Amendmen t is maintaining a land use pattern that protects and

enhances the quality of life in the City’s residential

neighborhoods. The Plan Amendment is not incompatible with and

is likely to maintain the land use pattern in the adjacent

mixed - use residential ne ighborhood of East Little Havana and is

likely to afford East Little Havana residents access to needed

retail and service uses not currently available on the vacant

Property and provide East Little Havana residents some relief

from their existing older, ov ercrowded housing.

65. The Plan Amendment is consistent with the land use

pattern of the area and is also complementary to the nearby land

uses. Approximately 15 percent of the boundaries of the

Property are industrial land uses, while the remaining 85

p ercent include a variety of other land use designations.

66. The Plan Amendment will likely have a positive impact

on the area due to the riverwalk and mix of uses that are likely

to bring economic revitalization to the area.

67. Petitioners allege in their Petition that the Plan

Amendment is inconsistent with “Objective LU - 1.” “Objective LU -

1,” however, does not exist.

68. Objective LU - 1.1 is concerned with the need for LDRs

to foster “a high quality of life in all areas,” with particular

regard to the provisio n of public facilities.

69. The concurrency management analysis performed with

regard to the Plan Amendment indicated that the levels of

service would not fall below the minimum required levels.

70. With respect to Policy LU - 1.1.3, Petitioners did not

prove th at the Plan Amendment is likely to destabilize the

existing land uses and will result in the encroachment of an

incompatible land use. Moreover, Policy LU - 1.1.3 is a

recitation of the protections provided by the City’s zoning

ordinance, and is therefore i rrelevant to the issues in this

case.

71. Policy LU - 1.3.1 mandates that the City “provide

incentives for commercial redevelopment and new construction” in

certain designated areas including the River Corridor.

Petitioners did not offer persuasive evidence as to the

relevance of this policy. In any event, it is likely that

approval of the Plan Amendment, which is likely to facilitate

development of a long vacant property, will encourage commercial

redevelopment and construction.

72. Ms. Slazyk stated that the Eas t Little Havana

neighborhood in which the Property is located is a “Target Area”

designated to receive funding for the purpose of revitalization,

affordable housing and economic development.

73. Petitioners offered no persuasive evidence that

demonstrated t hat the Plan Amendment is inconsistent with

Objective LU - 1.5. The Property is designated as a contaminated

Brownfield Site and the goals of the Comprehensive Plan include

“clean[ing] up” Brownfields. (A Brownfield site has some levels

of contamination th at make redevelopment difficult without the

expenditure of potentially large sums of money for environmental

cleanup.)

74. The Plan Amendment will allow a land use designation

that could allow the development of a mixed - use project (subject

to separate approva l) that will include a view corridor of the

river and a publicly accessible river walk via a 20 - foot - wide

greenbelt on each side of the Property. See Pre - Hearing

Stipulation at 11. Moreover, Objective LU - 1.5 sets forth

requirements for LDRs, and is ther efore irrelevant to the issues

in this case.

75. Objective LU - 1.6 provides that the City will regulate

property development to insure consistency with the

Comprehensive Plan. This proceeding is not concerned with the

consistency of the Development Project wit h the Comprehensive

Plan. Therefore, Objective LU - 1.6 is irrelevant to this

proceeding. However, even if approval of the Plan Amendment is

considered to be a regulation of the development of property,

such approval is consistent with the Comprehensive Pl an because

it furthers the Comprehensive Plan’s goals, objectives, and

policies.

76. One policy in particular with which the Plan Amendment

complies is Policy LU - 1.1.11, which designates the City as an

Urban Infill Area and states that “[p]riority will be giv en to

infill development on vacant parcels.” The Plan Amendment will

allow the Property, which has been vacant for more than 10

years, to be developed as urban infill.

77. Petitioners did not present persuasive evidence

proving the relevancy of Goal LU - 2, i. e. , that the Property

contains historic, architectural, or archaeological resources.

See Finding of Fact 82.

78. Petitioners did not prove that the Plan Amendment is

inconsistent with these Comprehensive Plan provisions.

D. Housing Element

79. Petitioners furthe r contend that the Plan Amendment is

inconsistent with Goal LU - 2, Goal HO - 2, Objective HO - 2.1, and

Policy HO - 2.1.4 on the basis that “it places high density

residential development in an area known as the ‘middle river’

far from the area on the Miami River generally accepted as ‘city

center.’” Petition at 8.

80. Petitioners have presented no persuasive evidence

proving that these housing element goals, objective, and policy

restrict high - density development to the “city center.” See

Endnotes 10 and 11.

81. Persu asive evidence established that the Plan

Amendment is in compliance with the housing element of the

Comprehensive Plan.

82. With respect to Goal LU - 2, Petitioners did not prove

that the Property contains any of “Miami’s historic,

architectural and archaeologi cal resources,” which is the

subject matter of Goal LU - 2. See Joint Exhibit 3, tab l.

83. Petitioners did not prove that the Plan Amendment is

inconsistent with these Comprehensive Plan provisions.

CONCLUSIONS OF LAW

I. Jurisdiction

84. The Division of Administ rative Hearings has

jurisdiction to conduct a hearing on the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 163.3187(3)(a), Fla.

Stat.

II. Burden of Proof and Standard of Review

85. Sections 120.569 and 120.57, Florida Statutes , provide

for de novo proceedings in which a ruling on the petition is

based on the record developed at a final hearing. See Denig v.

Town of Pomona Park , Case No. 01 - 4845GM, 2001 WL 1592220 (DOAH

June 18, 2002; DCA October 23, 2002).

86. The burden of proof in administrative proceedings is

generally on the party asserting the affirmative of the issue in

the proceeding. Young v. Department of Community Affairs , 625

So. 2d 831 , 834 (Fla. 1 993).

87. Section 163.3187(3)(a), Florida Statutes, imposes the

burden of proof on the party challenging a small scale

development amendment. The City’s determination that the Plan

Amendment “ is in compliance is presumed to be correct.”

§ 163.3187(3)( a), Fla. Stat.

88. “ The local government’s determination shall be

sustained unless it is shown by a preponderance of the evidence

that the amendment is not in compliance with this act.”

§ 163.3187(3)(a), Fla. Stat.

89. Relevant here, "in compliance" means consistent with

the requirements of Sections 163.3177, 163.3178, 163.3180,

163.3191, and 163.3245, Florida Statutes, with the state

comprehensive plan, with the appropriate strategic regional

policy plan, and with Florida Administrative Code Chapter 9J - 5.

§ 163.3184(1)(b), Fla. Stat. For the reasons stated herein,

Petitioners did not prove that the Plan Amendment is not "in

compliance."

III. Standing

90. In order to have standing to bring an action before

the Division pursuant to Section 163.3187( 3), Florida Statutes,

a petitioner must be an “affected person” as defined by

163.3184(1)(a), Florida Statutes, which provides as follows:

"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. . . . Each person, other than an

adjoining local government, in order to

qualify under this definition, shall also

have submitted oral or written comments,

recommendations, or objections to the local

government during the period of time

beginning with the transmittal hearin g for

the plan or plan amendment and ending with

the adoption of the plan or plan amendment.

§ 163.3184(1)(a), Fla. Stat.

91. Based upon the weight of the evidence, Petitioners

submitted comments, recommendations, or objections “during the

period of time beginning with the transmittal hearing for the

. . . plan amendment and ending with the adoption of the . . .

plan amendment,” and therefore have standing to challenge the

Plan Amendment pursuant to Section 163.3187(3)(a), Florida

Statutes. § 163. 3184(1)(a), Fla. Stat. See also Perry v.

Department of Community Affairs and City of Bradenton , Case No.

00 - 2066GM (DCA Order of Remand, October 27, 2000). 16

IV. Data and Analysis

92. Petitioners contend that the Plan Amendment is not

based upon relevan t and appropriate data and analysis.

93. Any amendment to a comprehensive plan must be based

upon appropriate data. Although such data need not be original

data, local governments are permitted to utilize original data

as long as appropriate methodologie s are used for data

collection. § 163.3177(8) and (10)(e), Fla. Stat.

94. Florida Administrative Code Rule 9J - 5.005(2) requires

that, in order for a plan provision to be "based" upon

appropriate "data,” the local government must "react to it in an

approp riate way and to the extent necessary indicated by the

data available on that particular subject at the time of

adoption of the plan or plan amendment at issue." The data must

also be the "best available existing data" "collected and

applied in a professi onally acceptable manner." Fla. Admin.

Code R. 9J - 5.005(2)(a) - (c).

95. However, the data and analysis that may support a plan

amendment are not limited to those identified or actually relied

upon by a local government. All data available to a local

gove rnment in existence at the time of the adoption of the plan

amendment may be relied upon to support an amendment in a de

novo proceeding. Zemel v. Lee County and Department of

Community Affairs , 15 F.A.L.R. 2735, 2737 (DCA June 22, 1993),

aff’d , 642 So. 2 d 1367 (Fla. 1st DCA 1994). See also Sierra

Club v. St. Johns County and Department of Community Affairs ,

Case Nos. 01 - 1851GM and 01 - 1852GM, 2002 WL 1592234 (DOAH May 20,

2002; DCA July 30, 2002)("The ALJ need not determine whether the

[local government] or the Department were aware of the data, or

performed the analysis, at any prior point in time." (Citation

omitted), aff’d , 857 So. 2d 897 (Fla. 5th DCA 2003). Analysis

supporting a plan amendment, however, need not be in existence

at the time of the ado ption of a plan amendment. See Zemel ,

supra . Data existing at the time of the adoption of a plan

amendment may be subject to new or even first - time analysis at

the time of an administrative hearing challenging a plan

amendment. Id.

96. The data and analysis that support the Plan Amendment

are largely rec ounted in Findings of Fact 32 to 46. Petitioners

did not prove by a preponderance of the evidence that the data

and analysis were insufficient to support the Plan Amendment or

that the data were not collected in a professionally acceptable

manner.

V. In ternal Consistency

A. Legal Principles

97. Petitioners contend that the Plan Amendment is not

consistent with certain elements of the Comprehensive Plan. To

be "internally consistent," comprehensive plan elements must not

conflict. If the objectives d o not conflict, then they are

coordinated, related, and consistent. See generally Schember v

Department of Community Affairs and City of Bradenton , Case No.

00 - 2066GM (DCA November 1, 2001).

98. A proposed small scale amendment reviewed under

Section 163.3187(1)(c), Florida Statutes, by a local government

"does not involve a text change to the goals, policies, and

objectives of the local government's comprehensive plan, but

only proposes a land use change to the future land use map for a

site - specific small scale development activity."

§ 163.3187(1)(c)1.d., Fla. Stat.

99. The Comprehensive Plan, including the FLUM and plan

amendments, is a legislative decision. Coastal Development of

Nor th Florida, Inc. v. City of Jacksonville , 788 So. 2d 204,

208 - 209 (Fla. 2001). The Comprehensive Plan should be read as a

whole in determining the City’s intent with respect to a

discrete portion. Id.

100. The rules of statutory construction provide ins ight

when construing various goals, objectives, and policies of the

Comprehensive Plan. The plain meaning of the statute is

considered the foremost rule. Acosta v. Richter , 671 So. 2d

149, 153 (Fla. 1996). Essentially, this rule requires

“straightforwar d consideration of each relevant sentence”

because a "statute should be interpreted to give effect to every

clause in it, and to accord meaning and harmony to all of its

parts." Id. at 153 - 54. (Citations omitted). Also, "statutory

phrases are not to be r ead in isolation, but rather within the

context of the entire section." Id. at 154. (Citations

omitted). “When a statute is clear, courts will not look behind

the statute's plain language for legislative intent or resort to

rules of statutory constructi on to ascertain intent.” State v.

Burris , 875 So. 2d 408, 410 (Fla. 2004)(Citation omitted).

“Instead, the statute's plain and ordinary meaning must control,

unless this leads to an unreasonable result or a result clearly

contrary to legislative intent.” Id.

B. Port of Miami River Element

101. Based upon the weight of the evidence in light of the

plain and ordinary meaning of the relevant terms, Port of Miami

River applies only to shipping companies as defined in the

Comprehensive Plan.

102. T he Property was not owned by a shipping company, nor

used for marine industrial purposes, at the time that the

Comprehensive Plan was adopted or thereafter. The Property does

not fall within the definition of Port of Miami River, and the

Port of Miami River element is not applicable or relevant to the

analysis of the Plan Amendment’s consistency with the

Comprehensive Plan.

103. Objective PA - 3.1, Policy PA - 3.1.1, Policy PA 3.1.2,

and Policy PA - 3.1.3 refer to LDRs as the means by which the

objectives and pol icies are to be implemented. LDRs have been

defined by statute as follows:

"Land development regulations" means

ordinances enacted by governing bodies for

the regulation of any aspect of development

and includes any local government zoning,

rezoning, subd ivision, building

construction, or sign regulations or any

other regulations controlling the

development of land, except that this

definition shall not apply in s. 163.3213.

§ 163.3164(23), Fla. Stat. The relevance of LDRs was explained

in Robbins v. Dep artment of Community Affairs and the City of

Miami Beach , Case No. 97 - 0754GM, 1997 WL 1432207, at *7 (DCA

December 9, 1997).

[L]and development regulations are not

relevant to a plan or plan amendment

compliance determination. Land development

regulations must be consistent with the

adopted comprehensive plan, not the other

way around. §163.3194(1)(b), (2) and (3),

and §163.3213, Fla. Stat. The comprehensive

plan is implemented by appropriate land

development regulations. §163.3201, Fla.

Stat.

104. F urther, “consistency with land development

regulations is not a compliance criterion,” because it is not

required by the definition of “in compliance” under Subs ection

163.3184(1)(b). See Brevard County v. Department of Community

Affairs and City of Palm Bay , Case Nos. 00 - 1956GM and 02 - 0391GM,

2002 WL 31846455 (DOAH December 16, 2002; DCA February 25,

2003 ). Consequently , the Plan Amendment’s consistency with

those objectives and policies that serve as guidelines for LDRs

is not relevant in this proceedin g. Therefore, Objective PA -

3.1, Policy PA - 3.1.1, Policy PA - 3.1.2, and Policy PA - 3.1.3 are

not applicable to the determination of whether the Plan

Amendment is consistent with the Comprehensive Plan.

105. Petitioners did not prove by a preponderanc e of the

evidence that the Plan Amendment is inconsistent with Objective

PA - 3.1, Policy PA - 3.1.1, Policy PA - 3.1.2, Policy PA - 3.1.3,

Objective PA - 3.3, Policy PA - 3.3.1, and Policy LU - 1.3.1.

C. Land Use Element

106. Petitioners did not offer persuasive evid ence that

the Plan Amendment is inconsistent with the land use element of

the Comprehensive Plan.

107. Objective LU - 1.1, Policy LU 1.1.3, and Objective LU -

1.5 specifically address requirements for the City’s LDRs, with

which a comprehensive plan amendment need not be consistent. As

discussed above, objectives and policies targeted at

establishing guidelines for the City’s LDRs are not applicable

to the determination of the Plan Amendment’s consistency with

the Comprehensive Plan. Consequently, Objective LU - 1.1, Policy

LU 1.1.3, and Objective LU - 1.5 are not applicable to the

determination whether the Plan Amendment is consistent with the

Comprehensive Plan.

108. Petitioners did not prove the Plan Amendment is

inconsistent with Goal LU - 1, Objective LU - 1, O bjective LU - 1.1,

Policy LU 1.1.3, Objective LU - 1.5, Objective LU - 1.6, and Goal

LU - 2.

D. Housing Element

109. Petitioners did not offer persuasive evidence which

demonstrated that the Plan Amendment is inconsistent with Goal

HO - 2, Objective HO - 2.1, or P olicy HO - 2.1.4. On the other hand,

RAD demonstrated that the Plan Amendment is not inconsistent

with the housing element of the Comprehensive Plan. The

persuasive evidence supports the conclusion that high - density

development is acceptable in parts of th e City other than the

City Center, including the middle river. Petitioners did not

prove by a preponderance of the evidence that the Plan Amendment

is inconsistent Goal HO - 2, Objective HO - 2.1, or Policy HO - 2.1.4.

CONCLUSION

110. Based upon the foregoing, Petitioners did not prove

by a preponderance of the evidence that the Plan Amendment is

not "in compliance."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be issued concluding

that the Plan Amendment adopted by City of Miami in Ordinance

No. 12492 is “in compliance” as defined in Section

163.3184(1)(b), Florida Statutes.

DONE AND ENTERED this 3rd day of September, 2004, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed wi th the Clerk of the

Division of Administrative Hearings

this 3rd day of September, 2004.

ENDNOTES

1 / All citations are to the 2003 version of the Florida

Statutes.

2 / The Property is commonly known as the Miami News site,

because the Miami News used it for many years.

3 / The land use adjacent to the east and west of the Property is

designated “Industrial”; the land use adjacent to the Property

to the south has an “Office” designation; and the land use

adjacent to and southwest of the Property is designated “General

Commercial,” and “Major Institutional, Public Facilities,

Transportation and Utilities.”

4 / “The areas designated as ‘ Industrial ’ allow manufacturing,

assembly and storage activities. The ‘Industrial’ designation

generally includes activities that would otherwise generate

excessive amounts of noise smoke, fumes. . .or negative visual

impact unless properly controlled. . . . Residential uses are

not permitted in the ‘Industrial’ designation, except for rescue

missions, and live - aboar ds in commercial marinas.” (Emphasis

added). “Areas designated as ‘ Restricted Commercial ’ allow

residential uses (excepting rescue missions) to a maximum

density equivalent to ‘High Density Multifamily Residential’

subject to the same limiting conditions ; any activity included

in the ‘Office’ designation as a well as commercial activities

that generally serve the daily retailing and service needs of

the public. . . . This category also includes commercial

marinas and living quarters on vessels as permiss ible.”

(Emphasis added). “Areas designated as ‘ High Density

Multifamily Residential ’ allow residential structures to a

maximum density of 150 dwelling units per acre, subject to the

detailed provisions of the applicable land development

regulations and t he maintenance of required levels of service

for facilities and services included in the City’s adopted

concurrency management requirements. . . .” (Emphasis added)

5 / The MRC is an advisory body created in 1998 . The MRC was

created 'as the official co ordinating clearing house for all

public policy and projects related to the Miami River.'

6 / The Greenway is “a pedestrian publicly accessible path for

walkers, rollerbladers, bicyclists and the like to be able to

have a path and accessibility to the w aterfront, to the

riverfront.”

7 / The Miami River Improvement Act in 2000 mandated that the

County and City work together to create a plan, which involved a

two year public hearing and planning process and resulted in the

Miami River Corridor Urban Inf ill Plan. See § 163.065, Fla.

Stat.

8 / See Intervenors’ Exhibit 3.

9 / Mr. Olmedillo, former Director of Miami - Dade County’s

Planning and Zoning Department and Deputy Director of the City’s

P&Z Department, and Ms. Slazyk, Assistant Director of the Ci ty’s

P&Z Department, both testified that the P&Z Department’s

analysis provided to the Commission does not include all

information considered by the P&Z Department when making a

recommendation, because otherwise the packet would be too

voluminous.

10 / A ccording to two studies of the Miami River, the Miami River

Master Plan and the UIP, the river is divided into three parts -

the lower river, which encompasses the City’s high density

downtown area; the middle river, which is a transition zone of

mixed - use d and residential development and marine industrial

uses; and the upper river, which is known as the “working river”

for its high concentration of marine industrial uses.

The Miami River Master Plan in particular recommends that

riverfront land located west of Northwest 27th Avenue, which is

known as the upper river, be preserved for “expansion of

shipping terminals and other marine industries.” The Property,

however, is located on the middle river, east of Northwest 12th

and 27th Avenue and closer to t he lower river and the downtown

area than the upper river. The UIP advises that the upper river

prototype should include “preservation and growth of the

shipping industry.” The UIP also states that “[t]here are

locations in the Middle River that can suppo rt mid - rise and

mixed - use development, that serve the needs of Middle River

neighborhoods and greenway users.” (The UIP states that “[t]he

Lower River includes Biscayne Bay to the 5th Street Bridge.

Middle River includes: 5th Street Bridge to the NW 22n d Avenue

Bridge. Upper River includes 22nd Avenue Bridge to the Salinity

Dam.”)

11 / The Miami River Master Plan indicates that there is a need

for additional services in the area of the Civic Center. This

plan suggests a “mixed - use, high - rise complex t hat includes

offices, apartments, retail/service establishments, parking

garages and a marina to serve the Civic Center area.”

12 / The Miami River Master Plan is considered outdated because

the City has been since designated as an Urban Infill Area,

wh ich promotes different development on the river than that of

the Miami River Master Plan. Mr. Olmedillo testified that the

City was designated an Urban Infill Area about seven or eight

years after the Miami River Master Plan was adopted in 1992.

The Miam i River Master Plan with its 1992 perspective is used

only as a “guiding tool” for development.

13 / The economic impact analysis for the Development Project

indicated a favorable impact on the City’s economy including the

creation of jobs and an incr ease in ad valorem taxes as well as

other benefits.

14 / Subsection 163.3177(2) provides as follows: “Coordination

of the several elements of the local comprehensive plan shall be

a major objective of the planning process. The several elements

of the comprehensive plan shall be consistent, and the

comprehensive plan shall be economically feasible.”

15 / The Comprehensive Plan defines “Port of Miami River” in a

footnote which provides: “The ‘Port of Miami River’ is simply a

legal name used to identify some 14 independent, privately - owned

small shipping companies located along the Miami River, and is

not a ‘Port Facility’ within the usual meaning of the term. The

identification of these shipping concerns as the ‘Port of Miami

River’ was made in 1986 fo r the sole purpose of satisfying a

U.S. Coast Guard regulation governing bilge pump outs.”

Further, Goal PA - 3 of the Port of Miami River element reiterates

the defined scope of this term as follows: “The Port of Miami

River, a group of privately owned and operated commercial

shipping companies located at specific sites along the Miami

River, shall be encouraged to continue operation as a valued and

economically viable component of the city’s maritime industrial

base.” The current number of “independent, p rivately - owned

small shipping companies located along the Miami River” is

uncertain. (The UIP refers to 15 boatyards operating on the

Miami River and 25 shipping terminals operating on the Miami

River upon completion of the UIP.)

16 / In Perry , Schember, a petitioner, “commented about how she

did not have notice of the public hearing until ten o’clock that

day. She also engaged in a dialogue with the local governing

body as to whether people could be provided notice in addition

to the notice published in the newspaper. Although she did not

object to the legal sufficiency of the notice for that meeting,

she did speak as to whether it was practically sufficient.” The

Department concluded that “[b]y addressing the notice procedure

used for the amendment, S chember made comments that relate

directly to the challenged amendment. Accordingly, her comments

meet the direct nexus test discussed in Starr v. Department of

Community Affairs and Charlotte County , DOAH Case No. 98 - 0449GM

(Department of Community Affai rs, Final Order Dated May 16,

2000.)” The Department ultimately concluded that Schember’s

“comment regarding the amendment’s notice was sufficient to

afford her standing under Section 163.3184, Florida Statutes.”

Perry , Case No. 00 - 2066GM at 6 - 7.

COPIE S FURNISHED :

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Heidi Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Andrew W. J. Dickman, Esquire

Law Offices of Andrew Dickman, P.A.

9111 Park Drive

Miami Shores, Florida 33138 - 3159

Paul R. Lipton, Esquire

Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, Florida 33131 - 3224

Rafael Suarez - Rivas, Esquire

City of Miami

Miami Riverside Center, Suite 945

444 Southwest Second Avenue

Miami, Florida 33130 - 1910

David C. Ashburn, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32301 - 7742

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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.