06-000918GM Gateway Southeast Properties, Inc. vs. Town Of Medley; Department Of Community Affairs; And Waste Management Inc., Of Florida Status: Closed DOAH Final Order on Wednesday, June 14, 2006.

Summary: Challengers failed to establish that a land development regulation was inconsistent with the local comprehensive plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GATEWAY SOUTHEAST PROPERTIES, )

INC. and CITY OF DORAL, )

)

Petitioners, )

)

vs. ) Case Nos. 06 - 0918GM

) 06 - 1548GM

DEPARTMENT OF COMMUNITY )

AFFAIRS, TOWN OF MEDLEY, and )

WASTE MANAGEMENT, INC. OF )

FLORIDA, )

)

Respondents. )

________________________________)

SUMMARY FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on May 17,

2006. The hearing was conducted by telephone, with counsel

being located in Miami, Aventura, Fort Lauderdale, and

Tallahassee.

APPEARANCES

For Petitioner: Jeffrey S. Bass, Esquire

(Gateway) Shubin & Bass, P.A.

46 Southwest First Street, Third Floor

Miami, Florida 33130 - 1610

For Petitioner: Michael D. Cirullo, Jr., Esquire

(City of Doral) Goren, Cherof, Doody & Errol, P.A.

3099 East Commercial Boulevard, Suite 200

Fort Lauderdale, Florida 33308 - 4311

For Respondent: Douglas M. Halsey, Esquire

(Waste White & Case, LLP

Management) Wachovia Financial Center, Suite 4900

200 South Biscayne Boulevard

Miami, Florida 33131 - 2352

For Respondent: Barbara J. Riesburg, Esquire

(Town) Roth, Rousso, Katsman, Schneider, LLP

18851 Northeast 29th Avenue, Suite 900

Aventura, Fl orida 33180 - 2847

For Respondent: Richard E. Shine, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The is sue in this case is whether the land development

regulation adopted by Respondent, Town of Medley (Town), by

Ordinance No. C - 306 on September 6, 2005, is consistent with

the Town's Comprehensive Plan (Plan).

PRELIMINARY STATEMENT

This matter began on Septe mber 6, 2005, when the Town

adopted Ordinance No. C - 306, which amended its Municipal Code

(Code) by adding the definition of "Public Facilities" in

Section 62 - 1 and by amending in two respects Section 62 - 61,

which governs nonconforming uses.

On October 6 , 2005, Petitioner, Gateway Southeast

Properties, Inc. (Gateway), filed a Petition with the Town

alleging that the Ordinance was not consistent with the Town's

Plan, as required by Section 163.3213(3), Florida Statutes

(2005). 1 When the Town did not resp ond to its petition within

thirty days, on November 7, 2005, Gateway filed a Petition

with Respondent, Department of Community Affairs (Department).

Id.

On December 6, 2005, the Department conducted an informal

hearing with the parties, as authorized by Section

163.3213(4), Florida Statutes. On February 21, 2006, the

Department issued its Determination of Consistency of a Land

Development Regulation (Determination). See Gateway Southeast

Properties, Inc. v. Town of Medley et al. , Case No. DCA06 - LDR -

015 (Feb. 21, 2006) 2006 Fla. ENV LEXIS 13. The Determination

concluded that the allegations made by Gateway should more

appropriately be raised in a different forum and that the land

development regulation was consistent with the Plan. On March

15, 2006, Ga teway filed its Request for Formal Hearing

(Request) with the Division of Administrative Hearings (DOAH).

While not raising any issues of material fact, the Request

generally alleged that as a matter of law the land development

regulation was inconsistent with various provisions in the

Plan and that the Department applied the wrong legal standard

in making its Determination. Because Respondent, Waste

Management, Inc. of Florida (Waste Management), operates a

landfill in the Town, which Gateway feared woul d be expanded

by virtue of the Ordinance, Gateway's Petition named Waste

Management as a co - Respondent. 2

By Notice of Hearing dated March 28, 2006, a final

hearing was scheduled on April 25 and 26, 2006, in Miami,

Florida. By Order dated April 12, 2006, h owever, the hearing

was cancelled on the undersigned's own motion since the

Petition raised no disputed issues of material fact, and it

appeared that oral argument, rather than an evidentiary

hearing, would be more appropriate.

On April 13, 2006, Gateway f iled a Motion for Summary

Final Order (Motion) under Section 120.57(1)(h), Florida

Statutes. On May 1, 2006, a Response to the Motion was filed

by the Department, while the Town and Waste Management jointly

filed a Memorandum of Law in Opposition to the M otion and

Cross - Motion for Summary Final Order (Cross - Motion).

On February 9, 2006, the City of Doral (City) filed a

Petition with the Town also alleging that the land development

regulation was inconsistent with the Plan. On March 2, 2006,

the Town pro vided a response to the Petition by asserting that

the claim was barred by collateral estoppel due to the

Department's Determination issued on February 21, 2006. On

April 27, 2006, the City filed a Motion to Intervene and

Incorporated Petition with DOAH s eeking to intervene in Case

No. 06 - 0918GM. This filing was treated as a new case under

Section 163.3213(5)(a), Florida Statutes, was assigned Case

No. 06 - 1548GM, and was consolidated with Case No. 06 - 0918GM by

Order dated May 1, 2006. The City has joined in Gateway's

Motion and in opposition to the Cross - Motion.

Oral argument on the Motion and Cross - Motion was held on

May 17, 2006. All parties participated in the hearing by

telephone.

Besides the pleadings filed in this matter, Gateway filed

five volu mes of documents, which were attached to its Petition

and are included in the Record. Volume I includes the Town's

Evaluation and Appraisal Report dated June 23, 2005; certain

documents obtained from the Town through a public records

request; the Town's C omplaint in a circuit court action filed

against Waste Management on November 3, 2003; Gateway's

Petition for Writ of Certiorari filed in circuit court on

October 5, 2005, seeking review of Ordinance C - 306; a solid

waste disposal agreement executed by Miam i - Dade County and

Waste Management on July 3, 1998; a draft of a development

agreement between the Town and Waste Management dated

September 8, 2005; and Waste Management's Answer, Affirmative

Defenses, and Counterclaim filed on January 13, 2004, in

respon se to the Town's lawsuit. Volume II includes

transcripts of (1) the Town meeting on October 5, 2005,

concerning a request by Waste Management to expand its

landfill pursuant to Ordinance C - 306; (2) the Town meeting on

a draft development agreement between the Town and Waste

Management held on September 8, 2005; and (3) the informal

hearing conducted by the Department on December 7, 2005.

Volumes III and IV contain copies of Part I of the Town's

Plan, while Volume V contains a copy of Part II of the Plan.

In addition, copies of (1) the development agreement between

the Town and Waste Management and (2) Ordinance C - 940 adopted

by the Town on March 7, 2006, which were attached to the two

Petitions, have been included in the Record. Except for

background pur poses, however, all items which post - date the

adoption of the Ordinance are not relevant to the issues

raised herein and have been considered for that purpose only.

During the course of the oral argument, the Department

relied upon two administrative dec isions not previously cited

which it says are pertinent to the issues raised by the Motion

and Cross - Motion. Those decisions are Johnson et al. v. City

of Tarpon Springs , DOAH Case Nos. 95 - 6205GM and 95 - 6206GM

(DOAH Aug. 30, 1996) 1996 Fla. ENV LEXIS 155 , and Sierra

Club, Inc. v. Nassau County , Case No. DCA02 - OR - 154 (DCA May

16, 2002) 3 . On May 22, 2006, Gateway and the City filed a

Joint Reply to DCA's Newly - Cited Cases. Finally, the

Transcript of the oral argument was filed on June 2, 2006.

FINDING S OF FACT

Based upon the record presented by the parties, the

following undisputed findings of fact are determined:

1. The Town appears on a map to be located in the

northern part of Dade County, south of U.S. Highway 27 and

east of the Florida Turnpike , and just south of the City of

Hialeah Gardens and southwest of the City of Hialeah. Besides

a Plan originally adopted in December 1988, and amended from

time to time, the Town also has a Code containing its land

development regulations.

2. Waste Manage ment owns and operates a landfill in the

Town known as the Medley Landfill & Recycling Center located

at 9350 Northwest 89th Avenue. 4 Because the landfill has been

in operation since 1952, or long before the Plan was adopted,

the landfill is considered a nonconforming use under Section

62 - 61 of the Town's Code.

3. On September 6, 2005, the Town adopted Ordinance C -

306 which amended Section 62 - 61 of the Code to create a new

procedure for allowing the expansion of qualifying facilities

operating as noncon forming uses. (Except for Section 62 - 61,

which is found in the Town's land development regulations,

there are no provisions in the Plan itself relating to

nonconforming uses.) Prior to the adoption of the Ordinance,

Subsection 62 - 61(b) provided the follo wing limitation on the

expansion of nonconforming uses:

(b) The lawful use of land existing at the

time of the passage of this chapter,

although such use does not conform to the

provisions of this chapter may be

continued; provided, however, that no such

nonconforming use shall be enlarged or

increased, nor shall any nonconforming use

be extended to occupy a greater area of

land than that occupied by such use at the

time of the passage of this chapter.

4. Ordinance C - 306 amended Subsection 62 - 61(b) as

fo llows to allow for an exception to the rule against

enlargement or expansion of nonconforming uses:

(b) The lawful use of land existing at the

time of the passage of this chapter,

although such use does not conform to the

provisions of this chapter, may b e

continued; provided, however, that no such

nonconforming use shall be enlarged or

increased except as provided in subsection

(d) hereof , nor shall any nonconforming use

be extended to occupy a greater area of

land than that occupied by such use at the

ti me of the passage of this chapter.

5. To implement the exception against enlargement or

expansion of nonconforming uses, the Ordinance further amended

Section 62 - 61 by adding a new Subsection (d) to read as

follows:

(d) Any nonconforming use which serve s as

a Public Facility may be enlarged up to

fifteen percent of the current building

and/or land area of such use after formal

approval by the Town Council via resolution

according to the Municipal Code of Medley,

Florida. Before approving such enlargemen t

or increase the Town Council shall conduct

at least two public hearings. The basis

for calculation of such enlargement or

increase shall exclude buildings and/or

land areas not currently operating as a

Public facility, though contiguous thereto.

The new provision allows any nonconforming use which serves as

a Public Facility to be enlarged or increased up to fifteen

percent of its current building or land areas after formal

approval by the Town Council by resolution.

6. Because the Code did not define the term "Public

Facilities," Ordinance C - 306 amended Section 62 - 1 (the

definitions portion of the Code) by adding a new Subsection

(a), which reads as follows:

(a) "Public facilities" means major

capital improvements, including, but not

limited to, trans portation, sanitary sewer,

solid waste, drainage, potable water,

educational, parks and recreational, and

health systems and facilities.

As is evident from a reading of the definition, the term

"public facilities" is not limited to solid waste facilities,

but it also includes seven other types of public facilities.

7. Gateway is the owner of real property commonly known

as Medley Commerce Center, which is located in the Town

immediately adjacent to and north of Waste Management's

landfill. On October 6 , 2005, Gateway filed a Petition with

the Town alleging that the Ordinance was not consistent with

the Plan in various respects. The Town did not respond to

Gateway's Petition within thirty days after receipt of the

Petition.

8. Because no response was made by the Town, on November

7, 2005, Gateway filed a Petition with the Department

requesting that the Department declare the Ordinance

inconsistent with the Town's Comprehensive Plan (Plan). See §

163.3213(3), Fla. Stat. The Petition referred to a Com plaint

filed in a circuit court case, Town of Medley v. Waste

Management Inc. of Florida , Case No. 03 - 25832 CA 13, as

stating the reasons for inconsistency. Although a copy of the

Complaint was not attached to its Petition, Gateway later

supplied the Depa rtment with a copy.

9. After conducting an informal hearing on December 7,

2005, on February 21, 2006, the Department issued its

Determination. In general terms, the Determination concluded

that the concerns in Gateway's Petition should more

appropriatel y be raised in a circuit court action under a

different provision in Chapter 163, Florida Statutes, through

a challenge to any development order or approval that

authorizes the expansion of a nonconforming public facility.

See Determination, paragraph 17.

10. On March 15, 2006, Gateway filed its Request with

DOAH contending generally that the Ordinance was inconsistent

with the Plan and that the Department had used the wrong legal

standard in determining that the Ordinance was consistent with

the Plan.

11. The City, which appears on a map to lie directly

south of the Town, shares a border with the Town in the area

of Waste Management's landfill property. On February 9, 2006,

the City filed a Petition with the Town seeking to have the

Town declare tha t the Ordinance was inconsistent with its

Plan. The Petition raised the same issues as did Gateway. On

March 2, 2006, the Town provided a response to the Petition by

asserting that the claim was barred by collateral estoppel due

to the Department's Deter mination issued on February 21, 2006.

12. The City then waived its right to have the

Department conduct informal proceedings under Section

163.3213(4), Florida Statutes, and filed a Motion to Intervene

and Incorporated Petition with DOAH on April 27, 20 06.

Although the City sought to intervene in Case No. 06 - 0918GM,

the filing was treated as a new filing under Section

163.3213(5)(a), Florida Statutes, was assigned Case No. 06 -

1548GM, and was consolidated with Gateway's case. Except for

one additional c onsistency claim, discussed below, the filing

raises the same issues as did Gateway.

13. The purpose of Ordinance C - 306, as expressed in

Section 2 thereof, is as follows:

PURPOSE: The limited increase or

enlargement of nonconforming uses allowed

by this ordinance is intended to further

the goals, objectives and policies of the

Town's Comprehensive Plan found in the

Sanitary Sewer, Solid Waste, Drainage,

Potable Water, and Natural Ground Water

Aquifer Recharge Element as well as the

Intergovernmental Coor dination Element.

14. The Plan's Sanitary Sewer, Solid Waste, Drainage,

Potable Water, and Natural Ground Water Aquifer Recharge

Element (Element) in the Future Land Use Element (FLUE)

identifies as its primary (and only) goal the "[p]rovision of

needed public facilities in a manner that protects public and

private investments in existing facilities and promotes

compact urban growth." (Vol. IV, Record, page 603).

Objective 1 of the same Element provides that an aim of the

Plan is the "[p]rovision of san itary sewer, solid waste,

drainage and potable water facilities and services to meet

existing and projected demands identified in this Plan." Id.

Policy 1.2 also indicates that the Town is to "[i]mplement

procedures to ensure that adequate facility capac ity is

available or will be available at the time a new development

permit is issued." Id.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.57(1)(h) and 163.3213(5)(a), Florida

Statutes.

16. Where the Department has found a land development

regulation to be consistent with the local comprehensive plan,

as it did here, the parties in an appeal to DOAH shall be "the

petitioning, substantially affected person, any intervenor,

the state land planning agency, and the local government." 5

§ 163.3213(5)(a), Fla. Stat. For purposes of resolving the

Motion and Cross - Motion, Respondents agree that Petitioners

are substantially affected persons and ha ve standing to

challenge the land development regulation.

17. The purpose of the proceeding before DOAH is not to

determine whether the Department's Determination should be

sustained. Rather, the purpose is to consider, in a de novo

setting, whether th e land development regulation is consistent

with the local government's comprehensive plan.

18. Section 120.57(1)(h), Florida Statutes, provides in

part that

any party to a proceeding in which an

administrative law judge of the Division of

Administrativ e Hearings has final order

authority may move for summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to in terrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order.

See also Fla. Admin. Code R. 28 - 106.204 (4).

19. All parties agree that there are no genuine issues

of material fact. Therefore, summary disposition of the

dispute is appropriate.

20. Section 163.3194(1)(b), Florida Statutes, requires

that "[a]ll land development regulations . . . shall b e

consistent with the adopted comprehensive plan, or element or

portion thereof . . . ." Therefore, it is incumbent on

Petitioners to show that the challenged land development is

not consistent with the Plan.

21. "The adoption of a land development regu lation by a

local government is legislative in nature and shall not be

found to be inconsistent with the local plan if it is fairly

debatable that it is consistent with the plan." §

163.3213(5)(a), Fla. Stat. This means that "if reasonable

persons could differ as to its propriety," a land development

regulation must be upheld. Martin County v. Yusem , 690 So. 2d

1288, 1295 (Fla. 1997). See also Martin County v. Section 28

Partnership, Ltd. , 772 So. 2d 616, 621 (Fla. 4th DCA

2000)(where there is "evidence in support of both sides of [a

land development regulation], it is difficult to determine

that the [Town's] decision is anything but 'fairly

debatable'").

22. Gateway (joined in by the City) argues in its Motion

that the Department departed from the es sential requirements

of the law by applying the wrong legal standard when it

rendered its Determination. 6 It also contends that both

facially and on an as - applied basis, the Ordinance is

inconsistent with numerous provisions within the Plan, as well

as Fl orida Administrative Code Rule 9J - 5.023. Finally,

Gateway argues that the regulation is inconsistent with the

nonconforming use doctrine, which it says in Florida prohibits

the expansion of nonconforming uses. In response, Respondents

generally assert th at because the Ordinance has no project

specific application to the Plan, that is, it does not

reference any particular project or authorize any development,

it is facially consistent with the Plan. They also contend

that the regulation is not self - execut ing in that it does not

approve the expansion or enlargement of any public facility;

rather, the Town is still required to go through a public

hearing process before issuing any development approval

pursuant to the regulation. Finally, they argue that

vir tually all of the consistency allegations in the Motion (as

well as the two Petitions) relate to future impacts that may

occur if and when the Town authorizes the expansion of a

public facility. Because another statutory remedy exists

under Chapter 163, F lorida Statutes, to address those

concerns, Respondents argue that it is inappropriate to

consider these types of issues at this time.

23. The Ordinance only applies to Public Facilities that

are nonconforming uses under Section 62 - 61, creating a

proced ure to give the Town the flexibility to permit the

limited expansion of certain uses that do not conform to the

uses established by other local land development regulations.

It does not apply to a specific project (such as Waste

Management's landfill) or authorize development; rather, it

may be applied to any number of future projects where the Town

may choose to enter into a development agreement or issue a

development order. Given the wide range of public facilities

that are covered by the Ordinance, th e regulation can

conceivably be applied in numerous ways.

24. The Ordinance is not self - executing. It amends

Section 62 - 61 to allow the Town to permit the increase or

enlargement of qualifying nonconforming uses. Before an

increase or enlargement can o ccur, the owner of the Public

Facility must obtain approval from the Town after it holds

public hearings to determine whether the use is a

nonconforming Public Facility and whether the proposed

expansion is within the allowable limits. Once those

determin ations are made, the Town must formally adopt a

resolution to authorize the proposed expansion. If the Town

authorizes specific development that is inconsistent with the

Plan, that decision can be challenged under another remedy

found in Chapter 163, Flor ida Statutes. Therefore, any

alleged impacts from the expansion of a public facility will

not occur until the regulation is implemented.

25. Under Section 163.3194(3)(a), Florida Statutes, "a

land development regulation shall be consistent with the

com prehensive plan if the land uses, densities or intensities,

and other aspects of development permitted by such . . .

regulation are compatible with and further the objectives,

policies, land uses, and densities or intensities in the

comprehensive plan . . . ." In addition, Florida

Administrative Code Rule 9J - 5.023(2) provides that "[t]he term

'compatible' means that the land development regulations are

not in conflict with the comprehensive plan[,]" while "[t]he

term 'further' means that the land developme nt regulations

take action in the direction of realizing goals or policies of

the comprehensive plan."

26. Ordinance C - 306 takes action in the direction of

realizing goals or policies of the Plan. As noted in Finding

of Fact 13, the purpose of the Ordi nance is to allow a

"limited increase or enlargement of nonconforming uses . . .

to further the goals, objectives and policies of the Town's

Comprehensive Plan found in the Sanitary Sewer, Solid Waste,

Drainage, Potable Water, and Natural Ground Water Aqui fer

Recharge Element . . . ." In this vein, the cited Element

identifies as its primary (and only) goal the "[p]rovision of

needed public facilities in a manner that protects public and

private investments in existing facilities and promotes

compact urban growth." (Vol. V, Record, page 603) Objective

1 of the Element establishes as its aim the "[p]rovision of

sanitary sewer, solid waste, drainage and potable water

facilities and services to meet existing and projected demands

identified in this Plan." I d. Policy 1.2 also indicates that

the Town is to "[i]mplement procedures to ensure that adequate

facility capacity is available or will be available at the

time a new development permit is issued." Id. Because it is

fairly debatable that Ordinance C - 306 provides a mechanism to

enable the Town to ensure that the foregoing goal, objective,

and policy can be met, the Ordinance "take[s] action in the

direction of realizing goals or policies of the comprehensive

plan" and thus furthers the Town's Plan.

27. At the same time, the undersigned notes that most,

if not all, of the arguments raised by Gateway and the City

concern the application of Ordinance C - 306 to an expansion of

Waste Management's landfill, rather than the consistency of

the Ordinance with the Plan. Because the Town determined that

the landfill qualified as a public facility under the

Ordinance on March 6, 2006, and authorized an expansion of the

landfill, Petitioners have a separate remedy under Chapter

163, Florida Statutes, to pursue thos e claims.

28. Notwithstanding the availability of a separate

remedy, the undersigned has considered the consistency

arguments raised in the Motion to determine if they overcome

the fairly debatable threshold. 7 In order to prevail under

this test, Gateway and the City have the stringent burden of

demonstrating that there can be no reading or interpretation

of the Ordinance that is even arguably consistent with the

Plan.

29. Petitioners first argue that because the expansion

of nonconforming public facil ities is not expressly provided

for in the Plan, the regulation must be inconsistent with the

Plan. However, local comprehensive plans are intended to

provide an enabling framework for land development

regulations, not to provide a list of each and every

permissible development option. See § 163.3177(1), Fla. Stat.

Significantly, there is no provision in the Plan which

prohibits the expansion of public facilities. In this

respect, it is at least fairly debatable that the regulation

is consistent with th e Plan.

30. Petitioners also argue that the Plan establishes the

maximum amount of lands in the Public Buildings and Facilities

land use category of the FLUE at 5.2 acres, and that amount of

land has already been used up with existing facilities, thus

giv ing rise to an inconsistency with the FLUE. Tables I and

III of the FLUE do indicate that in 1988, when the original

Plan was adopted, the existing Public Buildings and Facilities

land use accounted for 5.2 acres. (Vol. V, Record, pages 499

and 520) Sin ce that time, however, "close to 700 acres of

land or more" have been annexed by the Town, some of which

have already been, or are now in the process of being,

redesignated with new land uses. (Volume II, Record, pages

145 - 46) Moreover, Table 4 of the FL UE indicates an

anticipated acreage of 7.0 acres for Public Buildings and

Facilities in the year 2000. (Vol. V, Record, page 525)

Given these considerations, it is at least fairly debatable

that FLUE Tables I, III, and IV are simply a reflection of the

s tatus of acreage reserved for Public Facilities when the Plan

was adopted, and they are not intended to freeze the acreage

reserved for Public Facilities at the 1988 or 2000 levels, as

alleged in the Motion.

31. Petitioners further contend that the Ordin ance

allows the expansion of Public Facilities onto land designated

for some other use. However, the Ordinance does not purport

to allow land uses where those uses are proscribed by the

Plan, or otherwise trump the Plan provisions.

32. Petitioners argu e that neither the Town's Capital

Improvements Element (CIE) or its Capital Improvement Plan

identify the expansion of private landfills as permitted

capital improvements and therefore an inconsistency between

the regulation and those provisions arises. ( According to the

Town's Evaluation and Appraisal Report dated June 22, 2005,

however, there is no Capital Improvement Plan in the Plan.

Vol. I, Record, page 10.) Assuming arguendo that the

expansion or enlargement of nonconforming public facilities

conte mplated by the Ordinance is a capital improvement that

must be identified in the CIE, and that all such projects will

trigger the expenditure of Town funds, as Gateway suggests, it

is still premature to require the identification of a

particular project in the CIE until development is actually

authorized. In this case, when the Ordinance was enacted on

September 6, 2005, no development approval had been granted.

33. Gateway and the City next point out that the

Sanitary Sewer and Solid Waste Sub - Element (Sub - Element) of

the Sanitary Sewer, Solid Waste, Drainage, Potable Water, and

Natural Ground Water Aquifer Recharge Element provides that

the Medley landfill is scheduled to be "phased out over the

next three years under an agreement signed last year with Dade

County." (Vol. V, Record, page 591) Because the regulation

would allow an expansion of the landfill, Petitioners cite

this as an obvious inconsistency with the Sub - Element. The

cited text was prepared in December 1988, when the Plan was

originally adopted, as a part of the Town's Level of Service

and Capacity Analysis. According to the text of the Plan, it

was based on the assumption that the three - year phase - out

would occur "[a]s the Medley landfill fills up and reaches

capacity." Id. It is at least fairly debatable that these

provisions do nothing more than reflect the then - current

status of the landfill in December 1988. Further, until

future development is approved, and the landfill actually

"fills up and reaches capacity," the regulation is arguably

consistent with this language.

34. Finally, the City has contended (in its Petition)

that when it adopted the regulation, the Town failed to adhere

to Objective 1 and Policy 1.3 of the Intergovernmental

Coordination Element, which require that the Town maintain

"coordination among the governmental entities within the Town

of Medley's areas of concern" and "[p]rovide for exchange of

information regarding requests for changes of zoning or land

use within the area of city limits." (Vol. V, Record, page

652) At most, however, these provisions simply require the

Town to give interested persons the opportunity to provide

input when making zoning or land use decisions. There is no

allegation by Gateway or the City that they were denied this

opportuni ty.

35. Based on the foregoing, it is concluded that it is

at least fairly debatable that the land development regulation

is "not in conflict with the comprehensive plan" and is

therefore "compatible" with the Plan. Fla. Admin. Code R. 9J -

5.023(2).

36. Because the Ordinance has not been shown to be

"inconsistent with the plan," as a matter of law, the Town and

Waste Management are entitled to a favorable disposition of

this matter. Yusem , supra ; § 163.3213(5)(a), Fla. Stat.; Fla.

Admin. Code R. 9J - 5.023 .

37. To summarize, because there is no genuine issue as

to any material fact, for the reasons cited above, the Town

and Waste Management are entitled as a matter of law to the

entry of a final order in their favor. The Cross - Motion is

accordingly gran ted, and Gateway's Motion is denied. Because

the City has raised the same arguments as Gateway, and agreed

that the Motion and Cross - Motion are dispositive of its

interests as well, final disposition of the cases is

appropriate as to both Petitioners.

DI SPOSITION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the Cross - Motion for Summary Final Order

filed by the Town of Medley and Waste Management Inc. of

Florida is granted, and the challenged land development

regulatio n adopted by Ordinance C - 306 is determined to be

consistent with the Town of Medley's Comprehensive Plan.

DONE AND ORDERED this 14th day of June, 2006, in

Tallahassee, Leon County, Florida.

S

D ONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of June, 2006.

ENDNOTES

1/ All references are to Florida Statutes (2005).

2/ These fears appear to be well - founded. For background

purposes only, it is noted that on March 6, 2006, or six months

after Ordinance C - 306 was enacted, the Town adopted Resolution

C - 940, which found Waste Management's landfill to be a public

facility within the parameters of Ordinance C - 306, and

authorized Waste Management to expand its landfill by 26.244

acres (or by 12.66 percent). Whether that action has been

challenged by Petitioners is not of record.

3/ Neither case appears to be directly on point. In both

cases, a land development regulation was determined to be

inco nsistent with a provision in the local government's

comprehensive plan. In Sierra Club , supra , the Department

determined that a Nassau County regulation, which allowed

wetland buffers averaging fifty feet, did not further three

wetland protection policies found in the Conservation Element.

Except for a review of the regulation and the three policies,

no further analysis of the plan was made. See Determination of

Inconsistency of Nassau County Land Development Regulation 6.5,

page 13. Johnson , supra , is more factually similar to this

case. In Johnson , an administrative law judge (ALJ) determined

that a City of Tarpon Springs regulation authorizing the

construction of swimming pools and pool screen enclosures

within thirty feet of the shoreline was facial ly at odds with a

thirty - foot setback policy in the Coastal Zone and Conservation

Element. Id. at *15 - 16. Although the ALJ concluded that only

a facial review of the regulation and policy was necessary to

support his determination, out of "fairness to th e City," he

nonetheless undertook a more extensive review of the City's

comprehensive plan to support that conclusion. Id. at *16.

4/ According to the Development Agreement between Waste

Management and the Town, Waste Management operates a Class I

lan dfill that occupies 207.039 acres, of which 141 acres are

currently permitted for solid waste disposal.

5/ Under this statutory scheme, Waste Management should be

labeled as an intervenor whose rights to participate are

dependent on whether it is a "sub stantially affected person."

See also § 163.3213(2)(a), Fla. Stat. However, Waste

Management was named a co - Respondent by Gateway, apparently

with the Department's acquiescence, and the filing arrived at

DOAH in that posture.

6/ Because it is not the purpose of this proceeding to

determine whether the Department's Determination should be

sustained, see Conclusion of Law 17, it is unnecessary to reach

this issue. Likewise, whether the regulation violates the

doctrine of nonconforming uses is not a consideration under

Section 163.3213, Florida Statutes, or Florida Administrative

Code Rule 9J - 5.023 in determining the consistency of a land

development regulation.

7/ When determining whether a land development regulation is

facially consistent with a comprehensive plan, it logically

follows that one need only examine the regulation itself and

any plan provisions that are directly affected or implemented

by the regulation. Here, the Ordinance amends an existing land

development regulation concerning n onconforming uses (which are

found only in the Code) and does not directly implement any

Plan provision except portions of one Element; thus, the

extensive analysis suggested by Petitioners is unnecessary.

Conversely, in determining whether the regulation can be

applied in a manner that is consistent with the Plan, it is

necessary to consider the specific development being authorized

and the Plan provisions that come into play. During oral

argument, the Department represented that the Ordinance, as

enacte d, could theoretically be implemented (or applied) in

hundreds of ways, thus making an as - applied analysis

impractical at this stage of the process. Because of this, the

Legislature has provided a separate statutory remedy to

challenge a development or pr oject that implements a land

development regulation.

COPIES FURNISHED:

Jeffrey S. Bass, Esquire

Shubin & Bass, P.A.

46 Southwest First Street, Third Floor

Miami, Florida 33130 - 1610

Michael D. Cirullo, Jr., Esquire

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

3 099 East Commercial Boulevard, Suite 200

Fort Lauderdale, Florida 33308 - 4311

Douglas M. Halsey, Esquire

White & Case, LLP

Wachovia Financial Center, Suite 4900

202 South Biscayne Boulevard

Miami, Florida 33131 - 2352

Barbara J. Riesburg, Esquire

Roth, Ro usso, Katsman, Schneider, LLP

18851 Northeast 29th Avenue

Aventura, Florida 33180 - 2847

Richard E. Shine, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

David L. Jordan, Acting General Counsel

Departme nt of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Re view proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed b y law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order

to be reviewed.