06-001146GM The Durham Park Neighborhood Association, The Miami River Marine Group And Herbert Payne vs. City Of Miami Status: Closed Recommended Order on Monday, September 25, 2006.

Summary: Petitioners did not prove that the City`s future land use map amendment in the Miami River corridor from Industrial to Restricted Commercial was inconsistent with the City Comprehensive Plan, or not supported by data and analysis.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE DURHAM PARK NEIGHBORHOOD )

ASSOCIATION, INC.; THE MIAMI )

RIVER MARINE GROUP , INC. ; and )

HERBERT PAYNE; )

)

Petitioners, )

)

vs. ) Case No. 06 - 1146 GM

)

CITY OF MIAMI, )

)

Respondent, )

)

and )

)

BRISAS DEL RIO , LLC, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, J. L awrence Johnston , on June 28 - 29 ,

2006, in Miami, F lorida.

APPEARANCES

For Petitioner s : Andrew W. J. Dickman, Esquire

Law Offices of Andrew Dickman, P.A.

Post Office Box 771390

Naples, F lorida 34107 - 1390

For Respondent: Rafael Suarez - Rivas, Esquire

Assistant City Attorney

444 Southwest 2nd Avenue, Suite 945

Miami, Florida 33130 - 1910

For Intervenor: Stephen B. Gillman, Esquire

Shutts & Bowen, LLP

201 Biscayne Boulevard

1500 Miami Center

Miami, Florida 33131 - 4325

STATEMENT OF THE ISSUE

The issue is whether the City of Miami's small scale

development amendment adopted by Ordinance No. 127 76 on March 2 ,

2006 , 1 is in compliance , as defined by Section 163.3184(1)(b),

Florida Statutes (2005) . 2

PRELIMINARY STATEMENT

O n March 2 , 2006 , Respondent, City of Miami (City), adopted

a small - scale plan amendment ( Ordinance 12776 ), which changed

the futu re land use designation on the City's Future Land Use

Map (FLUM) on a parcel of property from Industrial and Medium

Density Multifamily Residential to Commercial Restricted . The

pa rcel is located on the Miami River at 1583 Northwest 2 4th

Avenue , Miami , Fl orida . The amendment was adopted under the

procedure described in Section 1 63.3187, Florida Statutes .

On April 3 , 2006 , Petitioner s , The Durham Park Neighborhood

Association, Inc. ( DPNA ) , The Miami River Marine Group, Inc.

( MRMG ) , and Herbert Payne (Payne ) filed their Petition

Challenging Compliance of a Small - Scale Comprehensive Plan

Amendment with the Florida Growth Management Act (Petition). By

Notice of Hearing dated April 13 , 2006 , a final hearing was

scheduled for June 28 - 30 , 2006 , in Miami, Florida . On April 14,

2006, Intervenor, Brisas del Rio, LLC (Brisas), the owner of the

parcel in question, filed its Petition to Intervene in suppor t

of the challenged amendment, which was granted.

On April 18, 2006, Petitioners filed a Motion for Leave to

Ame nd Petition. On April 19, 2006, Petitioner s filed a Motion

to Consolidate Related Cases (this case and DOAH Case No. 06 -

0759GM ) . Intervenor filed response s opposing consolidation and

indicating no objection to amendment of the P etition but

reserving the right to move to dismiss or to strike portions of

it. The City adopted Intervenor's R esponse on amendment of the

Petition .

During a telephonic hearing held on April 27, 2006, the

City and Intervenor were given until May 5, 2006, to file their

motion to dismiss or to strike, and Petitioners were given until

May 10, 2006, to file a response. On April 28, 2006,

consolidation was denied. However, to the extent possible, the

parties were required to attempt to coordinate discovery and

other matters with the Intervenor in DOAH Case No. 06 - 0759GM to

minimize duplication of evidence, time, and effort. On May 5,

2006, Intervenor and Respondent filed a Supplemental Response,

which contained their motion to dismiss or to strike, and on

May 11, 2006, Petitioners f iled a Reply.

On May 16, 2006, Petitioners filed a Motion to Continue

Final Hearing , which was opposed by the other parties .

Another telephon ic hearing held on the pending motions on

May 19, 2006 . Based on the written and oral arguments , the

motion to continue was denied, and an Order Granting Leave to

Amend but Striking Portions of Amended Petition was entered on

May 24, 2006, which struck the references to Rule Chapter 9J - 11

in Amended Petition ¶¶ 1, 11, 34, and 80 , and Amended Petition

¶¶ 60 f., g., p., q., r., and s., 62 c., e., f., and k., 67 a.,

and 69 c. and d. (referencing plan provisions having no

conceivable bearing on the FLUM amendment at issue , including

Policy LU - 1.5.1; Policy LU - 1.6.5 ; Policy PA - 3.3.1 ; Goal CM - 3 ;

Objective CM - 3.1 ; Policy CM - 3.1.1 ; Objective LU - 1.4 ; Goal HO - 2 ;

Objective HO - 2.1 ; Policy TR - 1.5.11 ; Policy NR - 1.1.5 ; Policy - SS

1.3.3 ; and Policy - PW 1.1.1, respectively ).

The request to strike allegations that the future land use

map (FLUM) amendment at issue was not small - scale was denied

because it did not eliminate all disputed issues o f material

fact on the issue. However, it was noted: " Elimination of all

such disputed issues of material fact would, however, result if

Petitioners become estopped from making these allegatio ns by a

final order adopting the Recommended Order in DOAH Case No. 04 -

2754GM [ Payne, et al. v. City of Miami, et al. , 2006 Fla. ENV

LEXIS 136 (DOAH May 16, 2006 ) , which upheld the City's "net lot

area" method of calculating the size of a parcel subject to a

FLUM amendment , among other things . ] "

Requests to strike numerous references to plan provisions

governing land development regulations (LDRs) and development

orders (DOs) was denied because they could be relevant to

Petitioners' allegation that the FL UM amendment is inconsistent

with the City's comprehensive plan as a whole (although it was

ruled as a matter of law that the FLUM amendment at issue would

not be found to be "not in compliance" for being inconsistent

with particular plan provisions govern ing LDRs and DOs. )

Requests to strike references to all plan provisions

regarding the Port of Miami River were denied because the

decision in Herbert Payne, et al. v. City of Miami et al. , 927

So. 2d 904, 908 (Fla 3d DCA 2005) (holding that the Port of Mi ami

River plan provisions are "intended to apply to the 'uses along

the banks of the Miami River'" and not just to specific

companies named in a footnote to one of the plan provisions

explaining the unusual nature of the Port of Miami River ) .

Requests to strike a llegations pertaining to LDRs, DOs, and

zoning issues were denied "to the extent that they could be

relevant to background and data and analysis."

A request for attorney's fees in the motion to dismiss or

strike was denied.

As a result of thes e rulings , the only Comprehensive Plan

goals, objectives and policies remaining for consideration were

the following: Goal LU - 1, subparts (1), (2), (3), and (5);

Policy LU - 1.1.1; Policy LU - 1.1.2 ; Policy LU - 1.1.10; Policy LU -

1.1.11 ; Objective LU - 1.2; Objec tive LU - 1.3; Policy LU - 1.3.6;

Objective LU - 1.5 ; Objective LU - 1.6; Policy LU - 1.6.1; Policy LU -

1.6.4; Goal PA - 3; Objective PA - 3.1; Policy PA - 3.1.1; Policy PA -

3.1.2; Policy PA - 3.1.3; Objective PA - 3.2; Policy PA - 3.2.1;

Objective PA - 3.3; Policy HO - 1.1.9; Policy HO - 2.1.4; Goal TR - 1;

Policy TR - 1.1.1; Policy TR - 1.5.10; Objective NR - 1.3 ; Objective

NR - 3.2; Policy NR - 3.2.1; Policy NR - 3.2.2; Policy NR - 3.2.3; Goal

CM - 4; Objective CM - 4.1; Policy CM - 4.1.5; Objective PW - 1.2;

Policy PW - 1.2.1; and Policy CI - 1.2.3. In additi on, the ruling

noted: " Other allegations also may be estopped by [ a final

order adopting the Recommended Order in Payne, et al. v. City of

Miami, et al. , DOAH Case No. 04 - 2754GM , 2006 Fla. ENV LEXIS 136,

supra . ]"

On June 22 , 2006, the parties filed a Pr e - Hearing

Stipulation.

On June 26, 2006, the City and Intervenor filed a Request

for Administrative/Judicial Notice of: Monkus , et al. v. City

of Miami , et al. , Final Order Number DCA04 - GM - 197, DOAH Case No.

04 - 1080GM, 2004 Fla. ENV LEXIS 105, *33 - 34 (D OAH Sept. 3, 2004;

DCA Oct. 26, 2004) ; and Payne, et al. v. City of Miami, et al. ,

DOAH Case No. 04 - 2754GM , 2006 Fla. ENV LEXIS 136 (DOAH May 16,

2006). On June 27, 2006, the City and Intervenor filed a

Request for Administrative/Judicial Notice of the Fi nal Order in

Payne, et al. v. City of Miami, et al. , DOAH Case No. 04 - 2754GM ,

2006 Fla. ENV LEXIS 75 (DCA June 21, 2006) , which adopted the

Recommended Order . The morning of the final hearing, they filed

a Joint Motion for Collateral Estoppel based on tha t Final

Order. Petitioners stipulated to official recognition, objected

to collateral estoppel primarily on the ground that the Final

Order was subject to appeal and their intention to file a

written response, and requested that the proceedings in Payne,

et al. v. City of Miami, et al. , DOAH Case No. 06 - 0759GM , also

should be officially recognized (which did not seem to have any

bearing on the matter at hand). Over the objections, it was

ruled that, either on the basis of collateral estoppel or stare

deci sis , the effect of the Final Order was as follows : the

City's "net lot area" method of calculating the size of a parcel

subject to a FLUM amendment was conclusively upheld; the

numerous references in the Amended Petition to plan provisions

governing LDRs and DOs were stricken as irrelevant; it was

conclusively established that all portions of the Port of Miami

River Sub - Element of the City's Comprehensive Plan were

irrelevant except for Objective PA - 3.3 (on coordination with

other agencies); and it was con clusively established that the

Miami River Master Plan (MRMP), not the Miami River Corridor

Urban Infill Plan (UIP), defined the industria l Up River and

transitional Mid River and established the City's policies with

respect to those areas. As a result, t he issues for

determination at the final hearing were further narrowed.

At the final hearing, Petitioner s presented the testimony

of Lourdes Slazyk, assistant director of the City Planning

Department; Herbert Payne, a tugboat captain on the Miami River;

Brett Bibeau, managing director of the Miami River Commission;

Fran Boh n sa c k, executive director of the Miami River Marine

Group, Inc. ; and Horacio S. Aguirre, president of DPNA . Also,

they of fered Petitioners' Exhibits 1 - 4 , 13 - 1 6, 18, 19, 21, 24,

24 - I, 2 5, 28, 31, 32, 38 (a. - c.), 40 - 42 , 56, 61 , 61 (a. - b.), 70 ,

and 76 . O bjections to Petitioners' Exhibits 13 - 16, 18, 19, 31,

32, 38(a. - b.), 40, 56, and 76 were sustained. R uling was

reserved on objections to Petitioners' Exhibits 1, 25, 38(c .),

and 70 . It is no w ruled that the objections are overruled, and

the exhibit s are admitted in evidence, along with the other

exhibits admitted during the hearing.

The City and Intervenor called no additional witnesses but

had City Exhibit 1 and Intervenor's Exhibits 17 and 18 admitted

in evidence .

A Transcript of the hearing ( three volumes) was filed on

August 7 , 2006. Proposed recommended orders (PROs) were due no

later than August 17 , 2006. Respondent and Intervenor timely -

filed a Joint PRO , and Petitioners timely filed a PRO .

On August 16, 2006, Petitioners filed a Request for

Official Recognition of DOAH Case No. 06 - 0759GM and Supplemental

Response to Intervenor's Notice of Filing [the Final Order in

DOAH Case] 04 - 2754GM (pointing out that Petitioners appealed and

again contesting its preclusive effect against Petitioners on

the issues decided in the Final Order . ) On August 17, 2006, the

City and Intervenor filed a Joint Objection in Opposition to

Petitioners' Request for Recognition, etc. , as well as a Joint

Objection to Petitioners' PRO. All the post - hearing submissions

have been considered in the preparation of th is Recommended

Order , wh ich declines to recede from collateral estoppel and

stare decisis rulings, denies the request for official

recognition of the evidence introduced in DOAH Case No. 06 -

0759GM (while otherwise granting official recognition of the

case file and orders entered in it, to the extent relevant ,

including DCA's Final Order entered on August 31, 2006, which

essentially adopted the Recom mended Order, Payne, et al. v. City

of Miami, et al. , DOAH Case No. 06 - 0759GM , 2006 Fla. Div. Adm.

Hear. LEXIS 378 (DOAH Aug. 2, 2006) , and ruled against the

Petitioners in that case ), and adequately treats the Joint

Objection to Petitioners' PRO.

FINDIN GS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1 . Intervenor submitted an application to the City for an

amendment to the FLUM which would change the land use

designation from Industrial and Medi um Density Multifamily

Residential to Restricted Commercial on a parcel of property

less than ten acres i n size, determined by use of the City's

"net lot area" calculation method . The application was

submitted concurrently wi th application s for a zoning c hange and

for a major use special permit (MUSP).

2 . Intervenor's property is located at 1583 Northwest 2 4th

Avenue , Miami, and on the south side of the Miami River , which

i s its border to the north . To the immediate east of the parcel

is Industrial pro perty, but to the immediate west is Medium

Density Multi - Family Residential, and to the immediate south and

west is Duplex Residential.

3 . The Industrial use to the immediate east is known as

Florida Detroit Diesel - Allison, an engine repair facility tha t

services boats as well as buses. River Run, a multi - family

residential development, is to the immediate west; and there are

low density residential uses to the south, southwest, and west .

A major park is to the north, across the river from Intervenor's

property. The primary land use around Intervenor's property is

residential.

4 . The applications were reviewed by the City's Planning

and Zoning Department ( Planning Department) and its Planning

Advisory Board . Both recommended that the applications be

approved. In doing so, they determined that the land use change

furthers the objectives of the Plan, and that the land use

pattern in the neighborhood should be changed.

5 . On February 23 , 2006, the City Commission (Commission)

voted to approve the FLUM, zoning, and MUSP applications. The

FLUM chang e was adopted by Ordinance 12776 , which was signed by

the Mayor on March 2 , 2006.

6 . Because the amendment is a small scale development

amendment under Section 163.3187( 1 ) (c) , Florida Statutes, it was

not reviewed by the Department. See § 163.3187(3)(a), Fla.

Stat.

7 . On April 3 , 2006 , Petitioners filed their Petition

challenging the FLUM amendment . The Petition generally alleg ed

that the amendment was internally inconsistent with other

provisions in the City's Plan , that the amendment was not

supported by adequate data and analysis , and that the FLUM

amendment was not "in compliance" for a variety of other

reasons.

b . The Parties

8 . DPNA is a non - profit corporation comprised of

homeowners, resi dents, and businesses in the Durham Park

neighborhood, which lies on the south side of the Miami River

well to the east of the Intervenor's property , east of four - lane

Northwest 22nd Avenue , and consists primarily of single - family

residential uses. It is a voluntary organization with

membership open to all residents of Durham Park, whether they

own or rent. DPNA holds meetings at neighborhood homes or in

local restaurants , occasionally disseminates fliers, holds an

annual meeting , and files the annual rep ort required by law.

Its president, Stuart Aquirre, appeared before the City

Commission at the adoption hearing on behalf of DPNA and offered

comments in opposition to the FLUM A mendment. However, DPNA

does not own property or own or operate a business i n the City.

See Final Order entered August 31, 2006, in Payne, et al. v.

City of Miami, et al. , DOAH Case No. 06 - 0759GM, adopting the

Recommended Order, 2006 Fla. Div. Adm. Hear. LEXIS 378 (DOAH

Aug. 2, 2006).

9 . Mr. Payne owns and operates a tug boat company named

P & L Towing and Transportation, which is located in the Lower

River portion of the Miami River in the City and operates along

the Miami River in the City (and the County) . Mr. Payne

commented in opposition to the plan amendment at the adopt ion

hearing on the FLUM amendment.

1 0 . In the past, Mr. Payne's company has delivered vessels

to the property now owned by Intervenor. He has not used the

property for any business since 2002, except once or twice

during the last four - to - five years to tow some boats there for

safe harbor during a hurricane. After suffering a downturn

after the terrorist attack on September 11, 2001, Mr. Payne's

business has grown in recent years , due in part to new business

in the Gulf of Mexico, and has acquired anoth er boat and

additional crew.

1 1 . MRMG is a private, non - profit trade association . Most

of its members own and operate businesses on the Miami River,

both in the City and in the County . MRMG's purpose is to

preserve the working river. Its executive di rector, Fran

Bohnsack, appeared before the City C ommission on behalf of her

association and offered comments in opposition to the proposed

amendment.

1 2 . The City is a political subdivision of the State of

Florida. It initially adopted the Plan in 198 9. The Plan has

been amended from time to time.

13 . As indicated, Intervenor is the owner of the subject

property. Intervenor submitted comments in support of the FLUM

amendment for consideration at the adoption hearing .

c . FLUM Amendment

14 . The F LUM Amendment changes the land use designation

applicable to Intervenor's p roperty from “Industrial” and

"Medium Density Residential" to “Restricted Commercial.”

15 . The section of the Plan entitled " Interpretation of

the Future Land Use Plan Map , " at p ages 13 - 16, describes the

various land use categories in the Plan. It desc ribes the

Industrial land use category as follows:

Industrial: The areas designated as

"Industrial" allow manufacturing, assembly

and storage activities. The "Industrial"

designat ion generally includes activities

that would otherwise generate excessive

amounts of noise, smoke, fumes,

illumination, traffic, hazardous wastes, or

negative visual impact unless properly

controlled. Stockyards, rendering works,

smelting and refining pla nts and similar

activities are excluded. Residential uses

are not permitted in the "Industrial"

designation, except for rescue missions, and

live - aboards in commercial marinas.

1 6 . The section also describes the " Medium Density

Multifamily Residential " land use classification as follows:

Medium Density Multifamily Residential :

Areas designated as " Medium Density

Multifamily Residential " allow residential

structures to a maximum density of 65

dwelling units per acre, subject to the

detailed provisions of the applicable land

development regulations and the maintenance

of required levels of service for

facilities and services included in the

City's adopted concurrency management

requirements.

Supporting services such as community - based

residential facil ities (14 clients or less,

not including drug, alcohol or correctional

rehabilitation facilities) will be allowed

pursuant to applicable state law, community -

based residential facilities (15 - 50 clients)

and day care centers for children and adults

may be p ermissible in suitable locations.

Permissible uses within medium density

multifamily areas also include commercial

activities that are intended to serve the

retailing and personal services needs of the

building or building complex, small s cale

limited co mmercial uses as accessory uses,

subject to the detailed provisions and

applicable land development regulations and

the maintenance of required levels of

service for such uses, places of worship,

primary and secondary schools, and accessory

post - secondary educational facilities.

Professional offices, tourist and guest

homes, museums, and private clubs or lodges

are allowed only in contributing structures

within historic sites or historic districts

that have been designed by the Historical

and Environment al Preservation Board and are

suitable locations within medium density

multifamily residential areas, pursuant to

applicable land development regulations and

the maintenance of required levels of

service for such uses. Density and

intensity limitations fo r said uses shall be

restricted to those of the contributing

structure(s).

17 . Finally, t he section describes the "Restricted

Commercial" land use category as follows:

Restricted Commercial: Areas designated as

"Restricted Commercial" allow residentia l

uses (except 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 well as

commercial activities that generally serve

the d aily retailing and service needs of the

public, typically requiring easy access by

personal auto, and often located along

arterial or collector roadways, which

include: general retailing, personal and

professional services, real estate, banking

and other f inancial services, restaurants,

saloons and cafes, general entertainment

facilities, private clubs and recreation

facilities, major sports and exhibition or

entertainment facilities and other

commercial activities whose scale and land

use impacts are simil ar in nature to those

uses described above, places of worship,

primary and secondary schools. This

category also includes commercial marinas

and living quarters on vessels as

permissible.

1 8 . According to the Interpretation of the Future Land Use

Plan M ap, page 13, par agraph 4 , t he Plan is based on a pyramid

structure. That is, each land use classification permits all

land uses within previously listed categories, except as

otherwise specifically provided in the Plan. Therefore, with

the exception of r esidential uses, all uses permitted under the

Restricted Commercial designation are permitted under the

Industrial classification.

19 . The Restricted Commercial category is a logical

designation for the property because of its proximity to

residential n eighborhoods. Those residential properties would

clearly be more detrimentally affected by industrial activities

that may generate excessive amounts of noise, smoke, fumes,

illumination, traffic, hazardous wastes , or negative visual

impact, which are now authorized under the Industrial

designation.

d . The Miami River

2 0 . The Miami River runs northwest to southeast for more

than five miles from the Miami International Airport to Biscayne

Bay (the mouth of the River). For planning purposes, it

includes three sections: the Upper River, the Middle River, and

the Lower River. Although the demarcations of those sections

have been in dispute , the best evidence of the appropriate

demarcations of the three sections is found in the Miami River

Master Plan ( MR MP ), which was adopted by the City in 1992. This

was the finding and conclusion in both DOAH Case No. 04 - 2754GM

and DOAH Case No. 06 - 759GM .

2 1 . The MRMP clearly depicts the geographic scope of the

Mid - River (or Middle River) as extending west to North west 27th

Avenue and the Up River (or Upper River) as being that portion

of the Miami River lying west of Northwest 27th Avenue. Based

on these demarcations, the Lower River would run from the mouth

of the Miami River to the 5th Street Bridge, the Middle River

from the 5th Street Bridge to Northwest 27th Avenue, and the

Upper River from Northwest 27th Avenue westward. Using these

demarcations, Interv enor's property is located i n the Middle

River.

2 2 . In its discussion of the Middle River, the MRMP

prov ides:

The Mid - River area contains most of the

existing housing located along the Miami

River. The wide variety of dwelling types,

ranging from single family homes to high -

rise apartment/condominium buildings, are

mostly occupied by middle - income househol ds.

This is an important segment of the

population for the City to retain in order

to support the local economy and tax base.

A number of opportunities remain for

development of new housing by building on

vacant lots or by increasing the density of

exist ing developed lots. New housing

construction should be encouraged, except on

lands reserved for water dependent uses. In

the proposed SD - 4.1 waterfront commercial

zoning district (See page 1.14) residential

development could be permitted as an

accessory use to a marina.

The property is located within the referenced proposed SD - 4.1

waterfront commercial zoning district.

23 . According to the MRMP , the strategy for the Middle

River is to "[b]ring the neighborhoods back to the river." The

MRMP further pr ovides that "[d]iverse residential neighborhoods

interspersed with commercial districts make the Mid - River

unusual. The strategy is to develop centers of activities at

strategic locations that will become gateways to the river and

give identity to the nei ghborhoods."

24 . In contrast, the MRMP describes the Up - River as "a

working river." It also notes that "[m]arine industries in the

Up - River area create a busy, economically vital district that is

important to preserve. The challenge is to protect these

industries from displacement by non - water - dependent uses and to

nurture growth in marine industries without negatively impacting

nearby residential neighborhoods."

25 . In describing the Upper River, the MRMP provides:

The character of the river changes

dramatically west of NW 27th Avenue bridge.

In fact, it is not really the river there;

it is the man - made Miami Canal (and the

Tamiami Canal branching off to the west).

In contrast to the gently curving paths and

irregular edges of the natural river, the

canal banks are rigidly straight and

significantly closer together at 90 feet.

The most striking difference in the up - river

area is the change in land use. The Miami

Canal is almost entirely industrial in

character, with commercial shipping being

the pr edominant use. Most of the larger

cargo vessels on the Miami River are loaded

and unloaded in this area, resulting in an

incredibly busy, narrow river channel.

Due to the industrial nature of the up - river

corridor, many of the urban design

recommendation s made for the mid - river and

downtown areas are not applicable. The

emphasis in this area should be to promote

growth in shipping and related industries

and to provide adequate roadways for the

vehicles and trucks associated with these

businesses.

Unlike the character of the Upper River, the portion of the

River between Northwest 27th Avenue and Northwest 22nd Avenue is

less than half industrial and exhibits the typical

characteristics of the Middle River as a "transitional district"

between the Upper Riv er and the Lower River.

26 . Intervenor's Property is situated on the Miami River

at Northwest 24th A venue. Land uses surrounding the Subject

Property include: industrial; duplex residential; and medium -

density multi - family residential . There is a park across the

river, and low density residential to the south, southwest, and

west . River Run, a multi - family residential development is to

the west. Industrial use is to the east, but to the east of

that is the Riverside property, which is now Restricted

Commercial as a result of the Final Order in Payne, et al. v.

City of Miami, et al. , DOAH Case No. 06 - 0759GM.

27 . Because the Middle River is “a mixed use transitional

section of the river,” mixed - use development is intended to be

used as a mechanism to revitalize and stabilize the Middle River

and at the same time allow more people access to the river. It

is also intended as a way to combat the crime that has existed

in the Middle River for many years.

2 8 . Petitioners did not dispute that Restricted Commercial

generally is a reasonable land use designation for the Middle

River and offered no expert testimony to the contrary . Rather,

their dispute is with the proper boundaries of the Middle River

and the propriety of Restricted Commercial in the spec ific

location of Intervenor's property.

29 . Petitioners contend that the more recent UIP, which

places the boundary between the Upper River and the Middle River

farther east at Northwest 22nd Avenue, should control. In

addition to the other uses in th is transitional area, until

recently t he UIP's boundary would have incorporate d as part of

the Middle River five contiguous industrial land uses fronting

on the south side of River from approximately Northwest 21 st

Avenue to Northwest 24 th Avenue (t he Rive r Marine p roperty to

the east of the 22nd Avenue bridge , the Riverside property to

the west of the 22nd Avenue bridge, the Florida Detroit Diesel -

Allison p roperty, Intervenor's property that is the subject of

this case, and the River Run South property to t he west of

Intervenor's property, from east to west ) . Collectively these

properties we re the single greatest concentration of Industrial

land along the River in the City . The River Marine p roperty is

a shipping operation. The Detroit Diesel property re mains in

use as a repair facility for both private and commercial

vessels, as well as buses and trucks. Neither the Riverside

property nor Intervenor's property was in actual industrial use

at the time of the applications to change their FLUM

designations from Industrial , although both have operate d as a

location for repair and storage of large private and commercial

vessels in the past . However, the Riverside property was

changed from Industrial to Restricted Commercial as a result of

the Final Order ent ered in Case No. 06 - 0759GM. The challenged

FLUM amendments affecting Intervenor's property are not yet in

effect. See § 163.3189(2)(a), Fla. Stat. T he River Run South

property to t he west of Intervenor's property was changed from

Industrial to Medium De nsity Multi - Family.

30 . Notwithstanding Petitioner's arguments, the fact

remains that the City decided not to adopt the UIP's boundary

between the Upper River and Middle River. While the City has

adopted three other parts of the UIP, which are not pert inent to

this proceeding, the City has declined to adopt the UIP's

demarcation of the Upper River and the Middle River.

31 . Petitioners also argue in their PRO that the City and

Intervenor overlook parts of the MRMP that would suggest that

Restricted Co mmercial is inappropriate in the specific location

of Intervenor's property. But they presented no expert land use

testimony to support their arguments, and they failed to prove

that the parts of the MRMP cited in their PRO outweigh the parts

of the MRMP that would support the FLUM Amendment at issue.

f. Urban Infill Area

32 . The City is designated as an urban infill area which

assists the City in urban infill concepts of efficient use of

utilities, infrastructure, and transportation systems.

33 . Th e City's designation as an urban infill area was

made after adoption of the Comprehensive Plan and the MRMP and

it add s importance to the MRMP's concept of the Middle River as

a transition area having mixed - use development.

34 . The FLUM Amendment's Rest ricted Commercial land use

classification is consistent with the City's urban infill

designation and the Comprehensive Plan because it permits mixed -

use development and increases the flexibility of Intervenor's

p roperty to be developed in a manner that is consistent with the

City's urban infill designation.

g . Consistency with City's Comprehensive Plan

35 . Petitioners failed to prove the alleged inconsistency

of the FLUM Amendment with any of the following Comprehensive

Plan objectives and policies , whi ch are discussed in more detail

below : Goal LU - 1(1) , (3) , (4) , and (5) ; Policy LU - 1.1.2;

Objective LU - 1.2; Objective LU - 1.3; Policy LU - 1.3.6; Policy LU -

1.6.4; Goal CM - 4; Objective CM - 4.1; Policy CM - 4.1.5; Objective

NR - 1.3; Objective NR - 3.2; Policy NR - 3.2.1 ; Policy NR - 3.2.2;

Policy NR - 3.2.3; Objective PW - 1.2; Policy PW - 1.2.1; Policy CI -

1.2.3, Objective PA - 3.2; Policy PA - 3.2.1 ; Objective 3 .3; Goal

TR - 1; and Policy TR - 1.1.1. (Allegations of inconsistency with

other plan provisions have been stricken.)

36 . Future Land Use Element Goal LU - 1 is to :

Maintain a land use pattern that (1)

protects and enhances the quality of life in

the city's residential neighborhoods; (2)

fosters redevelopment and revitalization of

blighted or declining areas; (3) promotes

and f acilitates economic development and the

growth of job opportunities in the city; (4)

fosters the growth and development of

downtown as a regional center of domestic

and international commerce, culture and

entertainment; (5) promotes the efficient

use of la nd and minimizes land use

conflicts; and (6) protects and conserves

the city's significant natural and coastal

resources.

37 . Petitioners’ contention that the FLUM Amendment is

inconsistent with Goal LU - 1(1) is without merit. Intervenor's

property is ad jacent to low - density residential uses. The FLUM

Amendment will eliminate the potential for development of

industrial uses that may generate “excessive amounts of noise,

smoke, fumes, illumination, traffic, hazardous wa stes, or

negative visual impact. ” I ronically, and illogically,

Petitioners contend that Industrial is better than Restricted

Commercial for the quality of life of surrounding residential

neighborhoods , while at the same time contending that Industrial

use is incompatible with residential us es . Petitioners failed

to prove that the FLUM Amendment is inconsistent with Goal LU -

1(1) . To the contrary, it is consistent with that goal .

38 . With respect to Goal LU - 1(3) concerning the promotion

and facilitation of economic development and the growt h of job

opportunities in the City, Petitioners contended that the FLUM

Amendment will negatively impact marine industrial uses along

the river. To the contrary, Payne, who owns a marine - related

business, testified that he has not used the Riverside prope rty

for any business purpose since 2002, except once or twice during

the last four to five years for safe harbor during a hurricane .

The FLUM Amendment is therefore not in consistent with Goal LU -

1(3).

39 . Subpart (4) of Goal LU - 1 is not relevant in this case

because it pertains to the downtown area , and Intervenor's

p roperty is not located in the downtown area. Consequently, the

FLUM Amendment cannot be inconsistent with Goal LU - 1(4).

40 . The FLUM Amendment is consistent with Goal LU - 1(5) by

minimizing land use conflicts. The FLUM Amendment allows mixed

uses that will create a transition zone between the more

intensive industrial use and the less intensive residential use.

41 . The FLUM Amendment is also consistent with subpart (2)

of Goal LU - 1, which is concerned with the redevelopment and

revitalization of declining areas. T he neighborhood of

Intervenor's property includes an area in decline , and mixed - use

projects that include work force and affordable housing will

help to stabilize the area by pro viding housing opportunities

for employees at the Civic Center and in downtown who want to

live near er to where they work.

42 . Policy LU - 1.1.1 provides:

Development orders authorizing new

development or redevelopment that results in

an increase in the d ensity or intensity of

land use shall be contingent upon the

availability of public facilities and

services that meet or exceed the minimum LOS

standards adopted in the CIE.

43 . Policy LU - 1.1.2 provides:

The City's Planning Department, with the

assistance of various City departments and

agencies, shall be responsible for

monitoring the current and projected LOS

provided by public facilities. The Planning

Department shall perform the required

concurrency review of proposed development

for submittal to the State Department of

Community Affairs (DCA), as required by

Florida statutes and administrative rules .

T he City did a concurrency analysis of the FLUM Amendment.

Petitioners presented no evidence to show that the concurrency

analysis was defective in any way. The FLUM Amendment is

therefore consistent with Policy LU - 1.1.2.

44 . Objective LU - 1.2 is to :

Promote the redevelopment and revitalization

of blighted, declining or threatened

residential, commercial and industrial

areas.

Petitioners' introduced n o evidence of inconsistency with this

policy. To the contrary, there was evidence mixed - use projects

allowed in Restricted Commercial could help reverse decline in

the area.

45 . Objective LU - 1.3 provides :

The City will continue to encourage

commercial, office and industrial

development within existing commercial,

office and industrial areas; increase the

utilization and enhance the physical

character and appearance of existing

buildings; and concentrate new commercial

and industrial activity in areas wh ere the

capacity of existing public facilities can

meet or exceed the minimum standards for

Level of Service (LOS) adopted in the

Capital Improvement Element (CIE).

T he Restricted Commercial land use designation permits the types

of land uses that Objecti ve LU - 1.3 seeks to encourage --

commercial and office uses. Moreover, the concurrency analysis

performed by the City revealed that approval of the FLUM

Amendment would not result in a failure of existing public

facilities to meet or exceed applicable Level of Service minimum

standards. Therefore, the FLUM Amendment is not inconsistent

with Objective LU - 1.3.

46 . Policy LU - 1.3.6 provides:

The City will continue to encourage a

diversification in the mix of industrial and

commercial activities and tenants thro ugh

comprehensive marketing and promotion

efforts so that the local economy is

buffered from national and international

cycles. Particular emphasis is on, but not

limited to, Southeast Overtown/Park West,

Latin quarter, Little Haiti, Little River

Industri al District, River Corridor, the

Garment District and the Omni area.

The Restricted Commercial designation allows greater flexibility

in the development of the Subject Property. Such greater

flexibility is not in consistent with encouraging a

diversificat ion in the mix of industrial and commercial

activities. The mix of uses permitted under the Restricted

Commercial land use classification will promote urban infill and

serve to prevent urban sprawl. The FLUM Amendment is,

therefore, not in consistent wi th Policy LU - 1.3.6.

47 . Policy LU - 1.6.4 provides:

Any proposal to amend the City's zoning

ordinance that has been deemed to require an

amendment to the Future Land Use Plan Map by

the Planning Department, shall require a

concurrency review and a finding f rom the

Planning Department that the proposed

amendment will not result in a LOS that

falls below the adopted minimum standards,

and will not be in conflict with any element

of the Miami Comprehensive Neighborhood

Plan. Based on its evaluation, and on othe r

relevant planning considerations, the

Planning Department will forward a

recommended action on said amendment to the

Planning Advisory Board, which will then

forward its recommendation to the City

Commission.

The City’s concurrency analysis demonstrated that approval of

the FLUM Amendment would not result in a failure of existing

public facilities to meet or exceed applicable Level of Service

minimum standards. Petitioners presented no evidence to refute

that analysis. The FLUM Amendment was properly n oticed for a

public hearing before the City’s Planning Advisory Board. In

accordance with City policy, the Planning Advisory Board held a

public hearing on the FLUM Amendment and provided the Commission

with its recommendation (of approval) . The FLUM Ame ndment is

therefore not in consistent with Pol icy LU - 1.6.4 .

48 . Transportation Element Goal TR - 1 is to :

Maintain an effective and cost efficient

traffic circulation network within the City

of Miami that provides transportation for

all persons and facilita tes commercial

activity, and which is consistent with, and

furthers, neighborhood plans, supports

economic development, conserves energy, and

protects and enhances the natural

environment.

Petitioners failed to prove that the FLUM Amendment is

inconsisten t with this goal. T he City’s concurrency analysis

determined that the FLUM Amendment would not result in

unacceptable level of service with respect to traffic

circulation. Petitioners presented no eviden ce to refute this

analysis.

49 . Policy TR - 1.1.1 provides:

The City hereby adopts designation of the

City, excluding Virginia Key, Watson Island

and the uninhabited islands of Biscayne Bay

that have a land use and zoning

classification of Conservation, as an Urban

Infill Area pursuant to Miami - Dade Count y’s

designation of an Urban Infill Area lying

generally east of the Palmetto Expressway

and including all of the City of Miami.

Within this area, the concentration and

intensification of development around

centers of activity shall be emphasized with

the g oals of enhancing the livability of

residential neighborhoods and the viability

of commercial areas. Priority will be given

to infill development on vacant parcels,

adaptive reuse of underutilized land and

structures, and the redevelopment of

substandard sites. Maintenance of

transportation levels of service within this

designated Urban Infill Transportation

Concurrency Exception Area shall be in

accordance with the adopted Transportation

Corridors level of service standards set

forth in Policies TR - 1.1.2 and TR - 1.1.3 of

the Transportation Element of the MCNP.

(See Land Use Policy LU - 1.1.11.)

50 . The fact that Intervenor's Property is within an urban

infill area was a consideration of the City when adopting the

FLUM Amendment. The FLUM Amendment -- recla ssifying land in the

urban infill area from Industrial and Medium - Density Multifamily

Residential to Restricted Commercial -- is in no way inconsistent

with this policy.

51 . Coastal Management Element Goal CM - 4 is to :

Ensure public safety and the protecti on of

property within the coastal zone from the

threat of hurricanes.

Objective CM - 4.1 is to :

Minimize the potential for loss of human

life and the destruction of property from

hurricanes.

Policy CM - 4.1.5 provides:

Each proposed land use and land develop ment

regulation change within the Coastal High

Hazard area of the city will require an

analysis of its potential impact on

evacuation times and shelter needs in the

event of a hurricane.

Petitioners presented no evidence addressing this goal ,

objective, a nd policy and failed to prove that t he FLUM

Amendment is in consistent with them .

52 . Natural Resources Element Objective NR - 1.3 is to :

Maintain and enhance the status of native

species of fauna and flora.

Petitioners failed to present any evidence sho wing that the FLUM

Amendment is inconsistent with this objective.

53 . Objective NR - 3.2 is to :

Prevent the degradation of ambient air

quality within the city.

Policy NR - 3.2.1 states :

Establish vehicular transportation patterns

that reduce the concentr ation of pollutants

in areas known to have ambient air quality

problems.

Policy NR - 3.2.2 provides:

Support those elements of the Miami - Dade

County Comprehensive Development Master Plan

that encourage the use of Metrorail and

Metromover by directing high d ensity new

development or redevelopment first to areas

nearest Metrorail and Metromover stations,

and those land use policies that do not

foster the proliferation of employment

centers in the suburban areas of the county.

(See Transportation Objective TR - 1 .5 and

associated policies.)

Policy NR - 3.2.3 provides:

Work with the County transportation planning

agencies to continue to increase the quality

of mass transit services within the city.

54 . Petitioners failed to provide any evidence showing

that the FL UM Amendment will have negative impact on the City’s

air quality. To the contrary, t he FLUM Amendment changes the

land use classification from one that may involve “excessive

amounts of noise, smoke, fumes ,. . . , [and] hazardous wastes

. . . .” I t was n ot proven that t he FLUM Amendment is

in consistent with Objective NR - 3.2 or Policies NR - 3.2.1 , NR -

3.2.2, and NR - 3.2.3 (which is irrelevant) and has no bearing on

the City’s adoption of the FLUM Amendment.

55 . Potable Water Element Objective PW - 1.2 and Po licy PW -

1.2.1 both address availability of potable water. Objective PW -

1.2 is to :

Ensure adequate levels of safe potable water

are available to meet the needs of the City.

Policy PW - 1.2.1 is to :

Ensure potable water supplies meet the

established level of service standards for

transmission capacity of 200 gallons per

capita per day (GPCD). (See Natural Resource

Conservation Policy NR - 2.1.5 and Capital

Improvements Policy CI - 1.2.3.)

56 . The City’s concurrency analysis revealed that potable

water supplies will be available to the City after the FLUM

Amendment. Petitioners presented no evidence to the contrary,

and therefore did not prove that the FLUM Amendment is

inconsistent with Objective PW - 1.2 and Policy PW - 1.2.1.

5 7 . Capital Improvements Element P olicy CI - 1.2.3 provides:

Acceptable Level of Service Standards for

public facilities in the City of Miami are:

a) Recreation and Open Space -- 1.3 acres

of public park space per 1000 residents.

b) Potable Water Transmission Capacity --

200 gallons/resid ent/day. (See Potable Water

Policy PW - 1.2.1 and Natural Resource

Conservation Policy NR - 2.1.5.)

c) Sanitary Sewer Transmission Capacity --

100 gallons/resident/day.

d) Storm Sewer Capacity -- Issuance of any

development permit shall require compliance

with a drainage level of service standard of

a one - in - five - year storm event. For the

storm drainage system as a whole, 20 percent

of the existing system will be brought to a

standard of a one - in - five - year storm event

by the year 2000.

e) Solid Waste Col lection Capacity -- 1.28

tons/resident/year.

f) Traffic Circulation -- The minimum level

of service standard on limited access,

arterial, and collector roadways that are

not within designated Transportation

Corridors is LOS E, with allowable

exceptions a nd justifications therefore,

with LOS measured by conventional V/C

methodology. Within designated

Transportation Corridors, which include

approximately 95% of the roadway mileage

within the City of Miami, a minimum LOS E is

also maintained, but the measur ement

methodology is based on peak - hour person -

trips wherein the capacities of all modes,

including mass transit, are used in

calculating the LOS. Specific levels of

service by location and mode are set out in

Policies 1.1.2 and 1.1.3 of the

Transportatio n Policies in the Miami

Comprehensive Neighborhood Plan 1989 - 2000.

Petitioners presented no evidence with respect to this policy

and did not prove that t he FLUM Amendment is consistent with

Policy CI - 1.2.3.

5 8 . In sum, Petitioners failed to prove that the FLUM

Amendment is inconsistent with any of the goals, objectives , or

poli cies in the Comprehensive Plan.

i . The Port of Miami River

59 . Petitioners also argue that the Port of Miami River

Sub - Element must be considered in determining whether the

ame ndment is in compliance. This Sub - Element is found in the

Plan's Ports, Aviation and Related Facilities Element . It is an

optional element not required under Chapter 163, Florida

Statutes. Goal PA - 3 of the Port of Miami River Sub - Element of

t he Plan ref ers to the Port as "a group of privately owned and

operated commercial shipping companies located at specific sties

along the Miami River." A footnote to the title of the Sub -

Element defines the Port of Miami River as:

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

the shipping concerns as the "Port of Miami

River" was made in 1986 for the sole purpose

of satisfying a U.S. Coast Guard regulation

governing bilge pump outs.

60 . The private shipping companies identified as

comprising the Port of Miami River are listed in Volume II of

the Plan. The location of each of those companies is a lso

shown. See Petitioners' Exhibit 4 , Section VIII, page 35. This

information came from Miami - Dade County, where most of the

shipping companies were located. Ten of the 14 were west of

Northwest 27th Avenue. Four were east of the 5th Street Bridge.

N one were between Northwest 27th Avenue and 5th Street Bridge.

6 1 . Over the years, the City has consistently interpreted

this Sub - Element as applying only to properties that are listed

in Volume II of the Plan. Because Intervenor's property is not

inclu ded within the City's definition of the Port of Miami

River, in reviewing the application, the City adhered to its

long - standing interpretation that the Sub - Element was not

applicable or relevant to the analysis of the amendment's

consistency with the Plan . See Payne, et al. v. City of Miami,

et al. , Final Order Number DCA06 - GM - 214, DOAH Case No. 06 -

0759GM, (DOA H Aug. 2, 2006 ; DCA August 31, 2006 ) ; Payne, et al.

v. City of Miami, et al. , Final Order Number DCA06 - GM - 132, DOAH

Case No. 04 - 2754GM, 2006 Fla. E NV LEXIS 75 (DOA H May 16, 2006 ;

DCA June 21, 2006 ) ; Monkus et al. v. City of Miami et al. , Final

Order Number DCA04 - GM - 197 , DOAH Case No. 04 - 1080GM, 2004 Fla.

ENV LEXIS 105 , * 33 - 34 (DOAH Sept. 3, 2004; DCA Oct. 26, 2004).

62 . Petitioners contend that th e Port of Miami River is

more than just the 14 companies listed in the footnote to the

Sub - Element. They point out that the footnote refers to "some

14," suggesting that, while referring to specific locations,

there could have been more than 14, and presu mably a change of

ownership or name of a company would not "shrink" the Port.

Similarly, they contend, the Port subject to the Sub - Element

should grow in size as new shipping businesses opened at other

locations on the river.

63 . In support of their ar gument, Petitioners point out

that Objective PA - 3.1 and Policy PA - 3.1.2 of the Sub - Element

contemplated the expansion and redevelopment of the Port over

time. They also cite to Payne, et al. v. City of Miami, et al. ,

9 27 So. 2d 904 (Fla. 3d DCA 2005) , whi ch was an appeal from a

circuit court order dismissing a complaint filed by Payne and

MRMG under Section 163.3215, Florida Statutes, for lack of

standing because they were not "substantially affected persons,"

and not in a proceeding under Section 163.3187 , Florida

Statutes , to determine whether an amendment was in compliance.

Since the circuit court had granted a motion to dismiss, there

was no evidentiary hearing, and no evidence was presented to

either court regarding the Port of Miami River. In that

c ontext, the Payne court, in a majority opinion, considered the

Sub - Element to be relevant and "intended to apply to the 'uses

along the banks of the Miami River , " and not just to specific

companies named in the definition. The circuit court order was

reve rsed, and the case was remanded for further proceedings.

DCA's Final Order entered in DOAH Case No. 04 - 2754GM held that

Payne was "based on a standing issue, with the discussion of the

interpretation of the Port of Miami River Element and its

related poli cies occurring as dicta." Payne, et al. v. City of

Miami, et al. , Final Order Number DCA06 - GM - 132, DOAH Case No.

04 - 2754GM, 2006 Fla. ENV LEXIS 75 , at *9 (DOA H May 16, 2006 ; DCA

June 21, 2006 ) .

6 4 . In this case (unlike in DOAH Case No. 06 - 0759GM), the

only evidence of a n updated list of shippin g companies on the

Miami River was the UIP, which indicated that, as of 2002, there

were 25 private shipping companies operating on the Miami River.

No map accompanies the UIP's list. From the evidence, which wa s

not clear, it appears that one shipping company still was

operating just east of Northwest 27th Avenue and that two

shipping companies still were operating just east of Northwest

22nd Avenue. The latter two appear to have been operating on

the north si de of the river.

65 . Even if the Port of Miami River is not limited to the

14 shipping companies or locations named in the Plan, it is

clear from the evidence that Intervenor's property never

functioned as a private shipping terminal, and neither did an y

of the other Industrial property on the south side of the river

in the immediate vicinity of Intervenor's property. For that

reason, the Port of Miami River Sub - Element does not apply to

the FLUM amendment in this case.

66 . Petitioners also contend t hat all marine industrial

uses on the river are part of the Port of Miami River, whether

or not they would constitute shipping companies or businesses.

Contrary to Petitioners' arguments, it is clear that the Port of

Miami River Sub - Element does not appl y to those other uses.

6 7 . A ssuming that the Port of Miami River Sub - Element

applied to this FLUM amendment, not all of it would apply.

O bjective PA - 3.1, and underlying Policies PA - 3.1.1, 3.1.2, and

3.1.3, all relate to the purpose and scope of land de velopment

regulations for the Port of Miami River and are therefore not

relevant. See Payne, et al. v. City of Miami, et al. , Final

Order Number DCA06 - GM - 214, DOAH Case No. 06 - 0759GM, (DOA H Aug.

2, 2006 ; DCA August 31, 2006); Payne, et al. v. City of Miam i,

et al. , Final Order Number DCA06 - GM - 132, DOAH Case No. 04 -

2754GM, 2006 Fla. ENV LEXIS 75 (DOA H May 16, 2006 ; DCA June 21,

2006 ) . Objective PA - 3.2 and underlying Policy PA - 3.2.1 pertain

to the coordination of surface transportation access to the

Miami R iver with the traffic and mass transit system shown on

the traffic circulation map series and are not germane to this

amendment. That leaves Goal PA - 3 and Objective PA - 3.3.

6 8 . I t was fo und and concluded in the DCA's Final O rder in

DOAH Case No. 06 - 075 9GM and in DOAH Case No. 04 - 2754GM , which

constitute stare decisis and collateral estoppel as to these

Petitioners, that only Objective PA - 3.3 would require

consideration.

69 . Objective PA - 3.3 reads as follows:

The City of Miami shall coordinate its Po rt

of Miami River planning activities with

those of ports facilities and regulators

including the U.S. Corps of Engineers, U.S.

Coast Guard, and Miami - Dade County's Port of

Miami.

70 . Petitioners failed to present any evidence concerning

a lack of coordi nation activities relative to the FLUM

amendment. Coordination does not mean that adjacent local

governments or other interested persons have veto power over the

City's ability to enact plan amendments. City of West Palm

Beach et al. v. Department of Com munity Affairs et al. , 2005

Fla. ENV LEXIS 191 at *34, DOAH Case Nos. 04 - 4336GM, 04 - 4337GM,

and 04 - 4650GM (DOAH July 18, 2005, DCA Oct. 21, 2005). Rather,

the City needs only take into consideration input from

interested persons. Id. at *35.

71 . The C ity established that pursuant to its Resolution

No. 00 - 320, before any resolution, ordinance, or issue affecting

the Miami River is considered, the City Manager is required to

inform the Miami River Commission (MRC) of that impending

matter. The MRC serve s as a clearinghouse for all interests of

the Miami River, including residential, economic, and industrial

interests, a s well as the other entities listed in the

O bjective. See §§ 163.06 et seq. , Fla. Stat. The evidence

shows that the MRC was notified be fore the amendment was

considered, and that it provided a recommendation to the

Commission. Th e MRC's input consisted of a 7 - 6 vote that the

FLUM amendment was in consistent with the UIP. As indicated,

this voted was purely advisory, and t here was no vote on whether

the FLUM amendment was consistent with the City's Comprehensive

Plan.

72 . While ruled not relevant in Case No s . 06 - 0759GM and

04 - 2754GM, Goal PA - 3 states that the Port of Miami River "shall

be encouraged to continue operation as a valued and economically

viable component of the city's maritime industrial base . "

Unlike in those cases, there was no expert land use testimony as

to whether the FLUM Amendment in this case i s inconsistent with

the objecti ves of the Port of Miami River S ub - element that are

directed at preserving and encouraging growth of the marine

industry on the river because it impacts the “economic viability

of the marine industries” by “invit[ing] speculation [on land]

that makes it impossible for that industry to expand.” Mr.

Payne testified in this case that the FLUM Amendment will

negatively impact the marine industry on the Miami River,

primarily because there is a shortage of dockage space. Mr.

Payne further testified that land is needed for expansion of the

marine indust ry.

73 . Notwithstanding Mr. Payne's testimony, Petitioners

presented no evidence demonstrating that the FLUM Amendment will

negatively impact the viability of the maritime industry. Mr.

Payne, who is not a land use expert, conducted no analysis of

the needs of the neighborhood in the area of Intervenor's

p roperty. Mr. Payne did not testify as how ma ny jobs were

available when Intervenor's Property was used for marine

businesses some four - to - five years ago, or how many jobs will

result from the FLUM Ame ndment.

74 . The City has no policy of " land banking " ( i.e. ,

reserving land for future growth and expansion of a particular

use) , nor does the Comprehensive Plan include such a policy.

The UIP advocates " land banking " of waterfront industrial lands

by t he marine industry. But there was no evidence that either

Mr. Payne or MRMG sought to purchase Intervenor's Property for

that purpose. Indeed, the evidence was that Intervenor bought

its property after several years of inactivity had turned the

property into an eyesore.

75 . If Goal PA - 3 is relevant, the issue would be whether

the FLUM Amendment is consistent with it. Internal consistency

does not require that a local comprehensive plan provision

"further" -- i.e. , take action in the direction of realizi ng --

every other goal, objective, and policy in the plan. Contrast

§ 163.3177(10)(a), Fla. Stat. (defining consistency of local

comprehensive plan with regional and state comprehensive plans).

It is enough if a plan provision is "compatible with" -- i.e. ,

d oes not conflict with -- other goals, objectives, and policies in

the plan. See Cooper v. City of St. Petersburg , ACC - 92 - 004,

DOAH Case No. 90 - 8189GM, 1992 Fla. ENV LEXIS 111, *51 (ACC July

21, 1992; DOAH RO Dec. 13, 1991). A fortiori , a FLUM amendment

nee d not "further" comprehensive plan goals, and it was not

proven that the FLUM Amendment in this case conflicts with Goal

PA - 3, even assuming the goal applies and is relevant.

j . Data and analysis

76 . Petitio ners contend that the FLUM amendment in this

case was not based on the best available, professional ly

acceptable, data and analysis, as required by Florida

Administrative Code Rule 9J - 5.005 and Section 163.3177, Florida

Statutes. However, they presented no testimony from a land use

expert to suppor t their contention.

77 . Petitioners contend that the City was required to

conduct a housing and industrial needs assessment before

adopting the FLUM amendment. The City did not conduct a formal,

amendment - specific assessment of the need for residential or

industrial lands, or specifically, of the need for housing. It

was not required to do so because Intervenor's Property is

located within the City's urban infill area. The DCA may

require a housing needs assessment if the proposed FLUM

amendment will result in urban sprawl . But Petitioners did not

present any evidence to prove allegations of urban sprawl (which

would have had to result somehow from denser residential

development within the urban infill area) .

7 8 . The principal considerations for th e City's decision

to adopt a land use change are the provisions of the

Comprehensive Plan and additional criteria se t forth in the

City's code. The City's analysis of the FLUM Amendment took

into consideration that Intervenor's p roperty is surrounded by

l ow and medium density residential.

79 . The City primarily reviewed the Comprehensive Plan,

Data and Analysis (Volumes II), the MRMP and the data contained

in the City's Legistar system to determine whether the FLUM

Amendment was consistent with the goal s, objectives , and

policies of the Comprehensive Plan.

80 . The City's determination of consistency was properly

based upon a finding that the FLUM amendment would minimize

potential land use conflicts in the area , taking into

consideration that Interve nor's p roperty abuts low density

residential on two sides.

81 . In its analysis, the City noted that Intervenor's

p roperty was surrounded by lower density residential uses on two

sides and industrial use on one side and, further , that the

p roperty itsel f w as not all Industrial; it contains portions

that w ere and remain designated Medium Density Multi - family

Residential. The City's analysis of the FLUM Amendment noted

that the two different designations on the p roperty at present

are mutually exclusive i n what they permit. The Medium Density

Multi - family Residential designation permits some accessory

commercial uses to the principal use of residential ; the

Industrial designation allows commercial uses as its principal

use , but specifically excludes resid ential. I n order to

revitalize and redevelop the p roperty, it was necessary to

change one of the land use designations.

82 . The City also determined in its analysis of the FLUM

Amendment that the Restricted Commercial designation, a mixed -

use classifi cation, was a more flexible classification for the

introduction of mixed uses to the area. Additionally, the City

found that the Restricted Commercial designation functions as a

transitional district between the industrial use and the

residential use, whi ch promotes good urban infill in the Middle

River.

83 . Balancing all the factors in the Comprehensive Plan,

t he City found the FLUM Amendment consistent because the

Restricted Commercial land use designation permits an array of

uses that promote econom ic development .

84 . The City considered adequate data and analysis in its

decision, including: documentation submitted by Brisas which

consisted of its application, property survey, property deed,

photographs of the property, and disclosure of propert y

ownership; a future land use map of the area; a legal

description of the property; City staff analysis of the proposed

land use change; the recommendation of the City's Planning

Advisory Board; an aerial photograph of the area; proposed draft

legislation amending the Comprehensive Plan; a school impact

analysis; and the recommendation of the Miami River Commission.

85 . In support of their argument that the FLUM Amendment

at issue is not supported by data and analysis, Petitioners in

their PRO cited to parts of the MRMP, to the UIP, and to 2005

legislation establishing the “Waterfronts Florida Program” and

amending Section 163.3177(6)(a), Florida Statutes. (Other

material cited in their PRO was not in evidence in this case.)

The MRMP and UIP already ha ve been discussed. As for the

legislation, it require s coastal counties to include in the

future land use elements of their comprehensive plans

"regulatory incentives and criteria that encourage the

preservation of recreational and commerci al working wate rfronts

as defin ed in s. 342.07." By its terms, the legislation applies

to counties , is not self - implementing, and adds nothing to the

City's plan provisions. In addition, Restricted Commercial

allows water - dependent and water - related uses, as defined by

Section 342.07(2), Florida Statutes.

86 . As indicated, Petitioners also contend that the City

ignored certain data which shows that the FLUM Amendment

disrupts an existing land use pattern supporting water - dependent

uses. However, as al s o noted above, the City performed an

extensive land use study to consider, among other things, these

very concerns and concluded that the new land use designation is

compatible with adjacent properties and consistent with the

Plan.

87 . For the foregoing reasons, Peti tioners failed to prove

that the FLUM Amendment is not supported by professionally

acceptable data and analysis, or that the City failed to react

to data and analysis in an appropriate manner.

CONCLUSIONS OF LAW

88 . Since this is a small - scale amendmen t, Section

163.3187(3)(a), Florida Statutes , applies and provides:

In the proceeding, the local government’s

determination that the small scale

development amendment is in compliance is

presumed to be correct. The local

government’s determination shall be

sustained unless it is shown by a

preponderance of the evidence that the

amendment is not in compliance with the

requirements of this Act.

See Denig v. Town of Pomona Park , DOAH Case No. 01 - 4845GM, 2002

Fla. ENV LEXIS 220 at *7 - 8 (DOAH June 18, 2002; Adm in. Comm.

Oct. 23, 2002). This statutory burden of proof has been applied

in this proceeding.

89 . R elevant here, “in compliance” means consistent with

the requirements of Sections 163.3177, 163.3178, and 163.3180,

Florida Statutes , and Florida Adminis trative Code Chapter 9J - 5 .

See § 163.3184(1)(b), Fla. Stat.

9 0 . Because it neither owns nor operates a business within

the City of Miami, DPNA failed to establish that it has standing

to participate in the instant proceeding. See § 163.3184(1)(a),

Fla . Stat. However, the other Petitioners have standing because

they own or operate a business within the City of Miami and

submitted oral or written comments, recommendations, or

objections to the local government during the appropriate

comment time period . Intervenor also has standing.

91 . A s described in the Preliminary Statement and Findings

of Fact, many of Petitioners' allegations were stricken or were

precluded by principles of collateral estoppel or stare decisis .

See Payne, et al. v. City of Mi ami, et al. , Final Order Number

DCA06 - GM - 214, DOAH Case No. 06 - 0759GM, (DOAH Aug. 2, 2006; DCA

August 31, 2006); Payne, et al. v. City of Miami, et al. , Final

Order Number DCA06 - GM - 132, DOAH Case No. 04 - 2754GM, 2006 Fla.

ENV LEXIS 75 (DOAH May 16, 2006; DC A June 21, 2006) . As for

remaining allegations, Petitioners failed to prove by a

preponderance of the evidence that the FLUM A mendment either is

in consistent with the City's Comprehensive Plan, as prohibited

by Section 163.3187(2), Florida Statutes ; or is not based upon

adequate data and analysis, as prohibited by Florida

Administrative Code Rule 9J - 5.005(2) and Section 163.3177(8),

Florida Statutes. Petitioners also failed to prove any of their

other allegations. For these reason s , it is concluded that the

City's determination that the FLUM A mendment is in compliance

must be sustained. See Denig , supra .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Community Affairs enter

a fina l order determining that the small scale development plan

amendment adopted by Ordinance No. 12776 is in compliance.

DONE AND ENTERED this 25th day of September , 2006, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE J OHNSTON

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

Di vision of Administrative Hearings

this 25th day of September , 2006 .

ENDNOTE S

1 / The Ordinance was adopted by the City Commission on

February 23, 2006, and signed by the Mayor on March 2, 2006,

which is the date of adoption by the City. See Herbert Payne,

et al. v. City of Miami, et al. , 913 So. 2d 1260 (Fla. 3d DCA

2005).

2 / All statutory references are to Florida Statutes (2005).

COPIES FURNISHED:

Thaddeus Cohen, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

Jim Richmond, Interim General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2160

Andrew W. J. Dickman, Esquire

Law Office of Andrew Dickman, P.A.

Post Office Box 771390

Naples, Florida 34107 - 1390

Rafael Suarez - Rivas, Esquire

Assistant City Attorney

444 Southwest 2nd Avenue, Suite 945

Miami, Florida 33130 - 1910

Stephen T. Maher, Esquire

Shutts & Bowen LLP

201 South Biscayne Boulevard,

Suite 1500, Miami Center

Miami, Florida 33131

Graham C. Penn, Esquire

Bercow and Radell

200 South Biscayne Boulevard, Suite 850

Miami, Florida 33131

Stephen B. Gillman, Esquire

Shutts & Bowen, LLP

201 Biscayne Boulevard

1500 Miami Center

Miami, Florida 33131 - 4325

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.