07-002499GM Grove Isle Association, A Florida Not For Profit Corporation, Constance Steen, Jason E. Bloch And Glencoe Neighborhood Association, Inc., A Florida Not For Profit Corporation vs. City Of Miami Status: Closed Recommended Order on Thursday, July 10, 2008.

Summary: The City of Miami`s future land use map change was not supported by data and analysis.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE VIZCAYANS, INC., a Florida )

not-for-profit corporation; )

GROVE ISLE ASSOCIATION, INC., a )

Florida not-for-profit )

corporation; CONSTANCE STEEN; )

JASON E. BLOCH; and GLENCOE )

NEIGHBORHOOD ASSOCIATION, INC., )

a Florida not-for-profit )

corporation, )

)

Petitioners, )

)

vs. ) Case Nos. 07-2498GM

) 07-2499GM

CITY OF MIAMI, )

)

Respondent, )

)

and )

)

TRG-MH VENTURE, LTD., and MERCY )

HOSPITAL, INC., a not-for- )

profit Florida corporation, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings (DOAH) by its assigned

Administrative Law Judge, J. Lawrence Johnston, on January 22

through 25, 2008, in Miami, Florida.

APPEARANCES

For The Vizcayans, Inc.:

Darrell W. Payne, Esquire

Stephen J. Darmody, Esquire

Daniel B. Rogers, Esquire

Shook, Hardy & Bacon, LLP

Miami Center - Suite 2400

201 South Biscayne Boulevard

Miami, Florida 33131-4339

For Grove Isle Association, Inc., Constance Steen, Jason E.

Bloch, and Glencoe Neighborhood Association, Inc.:

John Charles Lukacs, Esquire

John C. Lukacs, P.A.

201 Sevilla Avenue, Suite 305

Coral Gables, Florida 33134-6616

Patrick J. Goggins, Esquire

Patrick J. Goggins, P.A.

Sun Trust Building, Suite 850

777 Brickell Avenue

Miami, Florida 33131-2811

For City of Miami:

Rafael Suarez-Rivas, Esquire

Assistant City Attorney

Office of the City of Miami Attorney

444 Southwest 2nd Avenue, Suite 945

Miami, Florida 33130-1910

For TRG-MH Venture, LTD.:

John K. Shubin, Esquire

Shubin & Bass, P.A.

46 Southwest First Street, Third Floor

Miami, Florida 33130-1610

For Mercy Hospital, Inc.:

H. Ray Allen, II, Esquire

Dianne Triplett, Esquire

Carlton Fields, P.A.

Post Office Box 3239

Tampa, Florida 33601-3239

Lewis W. Fishman, Esquire

Lewis W. Fishman, P.A.

Two Datran Center, Suite 1121

9130 South Dadeland Boulevard

Miami, Florida 33156-7848

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether City of Miami

Ordinance 12911, which amends the Future Land Use Map (FLUM) of

the City of Miami Comprehensive Neighborhood Plan (MCNP), is a

small-scale development amendment, as defined by Section

163.3187(1)(c), Florida Statutes; and (2) whether Ordinance

12911 is "in compliance," as defined by Section 163.3184(1)(b),

Florida Statutes. (Statutes refer to the 2007 codification.)

PRELIMINARY STATEMENT

On April 26, 2007, Respondent City of Miami (City) adopted a

comprehensive plan amendment (Ordinance 12911), which changed the

future land use designation on the City's FLUM on a 6.72-acre

parcel of land from Major Institutional, Public Facilities,

Transportation, and Utilities (Major Institutional) to High

Density Multifamily Residential (H/D Residential). The parcel is

located approximately at 3663 South Bayshore Drive in the Coconut

Grove area of Miami, Florida. The amendment was adopted under

the procedure for small-scale FLUM amendments described in

Section 163.3187, Florida Statutes. The City's Mayor signed the

Ordinance on May 7, 2007.

On June 4, 2007, The Vizcayans, Inc., Alvah H. Chapman, Jr.,

Betty B. Chapman, and Cathy L. Jones filed their Petition

Challenging Compliance of a Small-Scale Comprehensive Plan

Amendment with the Florida Growth Management Act. The petition

was assigned DOAH Case Number 07-2498GM. Two days later, Grove

Isle Association, Inc. (Grove Isle), Constance Steen, Jason E.

Bloch, and Glencoe Neighborhood Association, Inc. (Glencoe) filed

their Petition Challenging Compliance of Small-Scale

Comprehensive Plan Amendment. The petition was assigned DOAH

Case Number 07-2499GM.

On June 13, 2007, the two cases were consolidated and TRG-MH

Venture, LTD. (TRG-MH), the contract vendee and proposed

developer of the parcel, filed its Petition to Intervene in

support of the challenged amendment. The Petition to Intervene

was granted, as was the Petition to Intervene later filed by

Mercy Hospital, Inc. (Mercy), the parcel's owner and contract

vendor. Also in June, Cathy L. Jones voluntarily dismissed and

was dropped as a party.

In July 2007, TRG-MH moved to strike portions of the

petitions and moved for a continuance of the final hearing, which

had been set for August 31 through September 2, 2007. After a

case status hearing was held on July 18, 2007, the final hearing

was rescheduled to October 1 through October 4, 2007. Also in

July 2007, Alvah and Betty Chapman voluntarily dismissed and were

dropped as parties.

In August 2007, the State Attorney moved to intervene and to

stay discovery pending a state criminal investigation. Following

a hearing, the state's motion was granted and discovery was

stayed for 30 days. On August 30, 2007, the Petitioners filed

motions for summary disposition. In their motions, the

Petitioners maintained that certain land use designations in the

MCNP and the FLUM amendment at issue here were not "in

compliance" with Florida's Growth Management Act. Specifically,

the Petitioners based their argument on an alleged absence of

intensity standards in the H/D Residential future land use

category. After a hearing was held on September 14, 2007, the

Petitioners' motions for summary disposition were denied. Later

that month, after another hearing, the final hearing was

rescheduled for January 22-25, 2008.

TRG-MH filed an Amended Motion to Strike on September 20,

2007. In its amended motion, TRG-MH sought to eliminate certain

allegations in The Vizcayans' Petition regarding a purported

inconsistency with certain provisions of the Miami-Dade County

Comprehensive Plan, arguing that the question of consistency with

the County's Plan was beyond the scope of compliance review as

defined in Section 163.3184(1)(b), Florida Statutes. The

Vizcayans filed a Response in Opposition on September 27, 2007.

The City joined in the Amended Motion to Strike.

A telephonic hearing on the Amended Motion to Strike was

held on October 26, 2007. During the hearing, TRG-MH withdrew

certain arguments (regarding the County's Shoreline Development

Review Ordinance). On November 1, 2007, the rest of the Amended

Motion to Strike was granted, and paragraphs 71 through 90 of The

Vizcayans' Petition (concerning compliance with the County's

Comprehensive Development Master Plan) were stricken.

The Petitioners filed several motions to compel production

regarding, among other things, the contract for purchase and sale

and any "covenant-in-lieu of unity of title" that may have been

prepared or executed between Mercy and TRG-MH. Mercy and TRG-MH

responded with motions for protective orders, arguing that

portions of the contract were confidential and that no "covenant-

in-lieu of unity of title" had been prepared or executed. After

hearing the argument of counsel on January 2 and January 15,

2008, orders were entered on January 4 and January 18, 2008,

regarding these discovery disputes. After Mercy submitted a copy

of the contract and a draft of an unexecuted Declaration of

Restrictions, Covenants, and Easements, which had been listed on

Mercy's privilege log, to the court for in camera review, TRG-MH

and Mercy were ordered to produce all drafts of the Declaration

of Restrictions, Covenants, and Easements and any drafts of other

existing documents related to the transfer of interests in land

in connection with TRG-MH's Project.

The Petitioners filed a Unilateral Pre-Hearing Stipulation

on January 10, 2008, and on January 11, 2008, the Respondent and

the Intervenors filed a joint Unilateral Pre-Hearing Statement.

The final hearing took place in the Miami-Dade County

Courthouse from January 22 through January 25, 2008. At the

outset of the final hearing, The Vizcayans filed a Motion for

Summary Recommended Order, which was argued and denied.

In the presentation of their cases, the Petitioners

presented the non-expert testimony of: Jason Bloch; Constance

Steen; Timothy Moore, an officer and director of Grove Isle

Association, Inc.; and John Hinson, the corporate representative

for the Vizcayans, Inc.; Dr. Joel Hoffman, the Executive Director

of Vizcaya Museum and Gardens; Dan Fortin, Jr., a land surveyor

and mapper; Orlando Toledo, Senior Director of Building,

Planning, and Zoning for the City; and Chloe Keidaish, the

corporate representative of Arquitectonica International

Corporation, an architecture firm. They also presented the

expert witness testimony of: Arva Moore Parks, a local historian

and consultant; Richard Heisenbottle, an architect; Rocco Ceo, an

architect and professor of architecture; Subrata Basu, Interim

Director of Planning and Zoning for Miami-Dade County;

Arturo Sosa, a land surveyor; and Henry Iler, an urban planner.

The Vizcayans had the following Exhibits admitted in

evidence for all purposes: 1, 7, 11, 12, 15, 21, 32, 33, 35, 56,

61, 63, 66, 91, 92, 94, 95, 98, 100, 101, 103, 104, 106, 110,

111, 115, 119, 122, 134, 137A, 138, and 139. The Vizcayans'

Exhibits 47, 53, 118, 127, 130, and 131 were admitted over

objection, but not for the truth of matters asserted. Exhibit 37

was admitted for the limited purpose of providing historical

context. Exhibit 93 was admitted exclusive of handwritten notes.

Ruling was reserved on objections to Vizcayans' Exhibits 23, 55,

74, 117, 128, 129, 132, and 133. It is now ruled that the

objections are overruled, and these exhibits are admitted in

evidence.

The following Grove Isle and Glencoe exhibits, introduced by

the other Petitioners, were admitted into evidence: 11NN, 15,

21, 23, and 25.

In lieu of presenting live testimony, the Petitioners

jointly designed portions of the deposition transcripts of:

William Thompson, Vice-President of the Related Group; City of

Miami employees, Ana Gelabert and Lourdes Slazyk; John Matuska,

President and CEO of Mercy Hospital, Inc.; and Jason Uyeda, the

corporate representative of EDAW, Inc. The City and Intervenors

filed objections and cross-designations conclusion of the final

hearing on February 4, 2008. The Petitioners filed responses to

the objections and their own objections to the cross-designations

on February 14, 2008. All of the deposition designations and

cross-designations are admitted in evidence over the objections.

At the final hearing, the City presented the testimony of

Lourdes Slazyk, the City Zoning Administrator and the former

Assistant Director of the City's Planning Department. TRG-MH

presented the testimony of: J. Thomas Beck, a state land use

planning expert; and Jack Luft, the City's former Director of

Planning and local land use planning expert. TRG-MH's Exhibits 1

through 10 were admitted in evidence. TRG-MH's Exhibit 11 was

proffered.

In addition to the exhibits introduced at the final hearing,

the parties agreed to make the Legistar application files for the

FLUM amendment, a related zoning change, and a major use special

permit (MUSP)--all of which are available on the City's website

(http://egov.ci.miami.fl.us/legistarweb/frameset.html)--part of

the record of this proceeding.

The multi-volume hearing Transcript (Volumes 1A, 1B, 2A, 2B,

3A, 3B, and 4A) was filed on March 3, 2008, and the exhibits were

filed on March 5, 2008. Proposed recommended orders (PROs) were

initially due April 2, 2008. An unopposed two-week extension was

granted, making the PROs due on April 18, 2008. The Petitioners

timely filed separate PROs, and the Respondent and Intervenors

timely filed a Joint PRO.

On May 12, 2008, The Vizcayans filed a copy of a circuit

court order quashing the City's zoning change and MUSP approvals

for the property subject to the FLUM amendment at issue. TRG-MH

and the City moved to strike, and The Vizcayans responded in

opposition on May 20, 2008. On June 26, 2008, The Vizcayans

filed copies of circuit court orders denying rehearing. Based on

the filings, although the relevance of the circuit court's orders

is marginal, the motion to strike is denied.

FINDINGS OF FACT

Based on all of the evidence, the following facts are

determined:

The Property Subject to the FLUM Amendment

1. TRG-MH Venture, LTD. (TRG-MH), is a Florida limited

partnership formed for the purpose of purchasing and developing

a parcel of property in the southeast corner of a larger, 40-

acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and

Mercy have executed a purchase and sale agreement for this

corner parcel, which is located at approximately 3663 South

Bayshore Drive in the Coconut Grove area of Miami, Florida (the

Site). TRG-MH hired an architectural firm, Arquitectonica, to

design on the Site a proposed residential development named 300

Grove Bay Residences (the Project). The Site, which currently

serves as a paved parking lot for Mercy Hospital employees,

measures 6.72 acres.

2. The Site is abutted on the north, northwest, and

northeast by the rest of the 40-acre parcel owned by Mercy and

used for its hospital, professional offices, and patient and

visitor parking. The tallest of these buildings is 146 feet.

To the north of Mercy's property and medical complex is another

30-plus acre parcel owned by the Catholic Diocese of Miami and

used for La Salle High School and a religious facility, Ermita

de la Caridad.

3. Abutting the northern boundary of the La Salle High

School property is Vizcaya Museum and Gardens.

4. To the west of the Site are a small convent, an

administration building, and a modest-sized assisted living

facility. To the west of these buildings is South Bayshore

Drive, which is a four-lane road. Single-family residential

neighborhoods are west of South Bayshore Drive.

5. The Site is abutted on the southwest, south, southeast

and east by Biscayne Bay. Grove Isle, a three-building, 18-

story condominium/hotel/marina complex, is located on a small,

man-made island (Fair Isle) in the Bay to the south of the Site.

It is located approximately 1,300 feet from the Site and is

separated from the Site by Bay water. Grove Isle has a future

land use designation of Medium Density Multifamily Residential

(M/D Residential) and is zoned Medium-Density Residential (R-3).

However, Grove Isle is a legal nonconformity because it exceeds

the densities allowed in M/D Residential and R-3.

6. To the southwest of the Site, but separated from the

Site by Bay water, are single-family and medium-density

dwellings, including several multifamily structures.

Petitioners Bloch and Steen reside in this neighborhood. No

property zoned single-family residential (R-1) abuts the Site.

7. Currently a paved parking lot, the Site has no

archeological, environmental, or historical significance.

8. Miami-Dade County had designated all of the City as an

"Urban Infill Area." This designation is made in the County's

Comprehensive Plan and is implemented in Policy LU-1.1.11 of the

Future Lane Use Element (FLUE) of the City's Comprehensive

Neighborhood Plan.

The Parties

9. The Vizcayans, Inc. (The Vizcayans), is a not-for-

profit Florida corporation of volunteer members and a paid staff

consisting of: an executive director, a membership director,

and a controller. The purpose of the organization is to support

the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and

operated museum, through contributions and fundraising events.

The Vizcayans' office at 3251 South Miami Avenue is located on

the grounds of Vizcaya. The Vizcayans submitted comments in

opposition to the proposed FLUM Amendment and appeared in person

and through lawyers at the City Commission hearings. The

Respondent and Intervenors stipulated that The Vizcayans have

standing as affected persons under Sections 163.3187(3)(a) and

163.3184(1)(b), Florida Statutes, to challenge the small-scale

development amendment in this proceeding based on allegations

that The Vizcayans operate a business in the City.

10. Miami-Dade County owns Vizcaya. By contract, The

Vizcayans provides funds annually to Miami-Dade County for use

in maintaining Vizcaya's properties and conducting educational

programs. Any funds in excess of those owed to the County under

the contract are used to pay staff and host fundraisers or are

invested for future use. Vizcaya is governed by the County

through the Vizcaya Museum and Gardens Trust, which is an agency

of Miami-Dade County.

11. Jason Bloch and Constance Steen reside in the City and

own properties to the southwest of the Site. Glencoe is a not-

for-profit corporation of homeowners in the Glencoe neighborhood

to the southwest of the Site. Mr. Bloch formed the corporation

during the pendency of the application proceedings for the

primary purpose of opposing the proposed development of the

Site. Bloch, Steen, and Glencoe submitted comments in

opposition to the proposed FLUM amendment.

12. Grove Isle is a not-for-profit Florida corporation of

condominium owners. Grove Isle submitted comments in opposition

to the proposed FLUM amendment. The City and Intervenors

stipulated to Grove Isle's standing in these proceedings.

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

Florida. The City adopted its Comprehensive Neighborhood Plan,

including its FLUM, in 1989. The Comprehensive Plan and the

FLUM have been amended from time to time as allowed by law.

14. TRG-MH is a joint venture limited partnership. Its

direct and indirect participants include Ocean Land Equities,

Ltd., and The Related Group. TRG-MH contracted to purchase the

Site from Mercy and applied to the City for the FLUM Amendment

at issue in this proceeding. TRG-MH also submitted applications

for a change of zoning and MUSP on the Site. The zoning and

MUSP applications, and the resulting City ordinance and

resolution arising from their approval, are not at issue in this

proceeding.

15. Mercy is a not-for-profit Florida corporation that

owns and operates Mercy Hospital. Mercy has contracted to sell

the Site to TRG-MH.

The FLUM Amendment

16. In June 2007, TRG-MH applied to the City for a small-

scale development amendment to change the Site's land use

designation on the City's Future Land Use Map (FLUM) from Major

Institutional, Public Facilities, Transportation and Utilities

(M/I) to High Density Multifamily Residential (H/D). TRG-MH

submitted its application concurrently with its applications for

a zoning change from G/I to R-4 and for a MUSP.

17. According to the FLUM Amendment application, TRG-MH

was seeking a map amendment for a 6.723-acre parcel of real

property.

18. With its FLUM Amendment application, TRG-MH submitted

a survey prepared and certified by surveyors Fortin, Leavy &

Skiles. The survey depicted: the Site, as a parcel with a "net

lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres,

that wrapped around the Site on its west and north sides (the

Perimeter Road); and a Private Road, also known as Tract "C" or

Halissee Street, measuring .95 acres, which accesses the Site

and Perimeter Road from South Bayshore Drive.

19. Accompanying the survey was a legal description for

the Site, which included a description for the proposed new

Perimeter Road abutting the Site. The legal description covered

an area comprising 8.11 acres.

20. Also accompanying the application was a traffic

analysis showing the impact to existing road networks of traffic

resulting from the proposed MUSP application, which sought to

build 300 residential units on property currently having no

existing residential units.

21. TRG-MH's applications were reviewed by the City's

Planning Department and its Planning Advisory Board (PAB). The

City's Planning Department recommended approval of the land use

designation change. The PAB's 3-3 tie vote operated as to deny

the request for a change of the land use designation

recommendation.

22. On April 26, 2007, the City Commission voted to

approve the FLUM amendment application and, with modifications,

the accompanying zoning and MUSP applications. (The City

Commission approved the zoning change and MUSP subject to the

condition that the size and scale of the Project be reduced by

25 percent across the board. Thus, for example, the height of

the tallest of the three condominium buildings was reduced from

approximately 411 feet to 310 feet.) The FLUM change was

adopted by Ordinance 12911, which the Mayor signed on May 7,

2007.

23. Ordinance 12911 amended the FLUM by changing the land

use designation "for the property located at approximately 3663

South Miami Avenue, Miami, Florida, more particularly described

in Exhibit A attached and incorporated." Exhibit A to the

ordinance was the legal description included on the Fortin,

Leavy, Skiles survey.

24. The section of the MCNP entitled "Interpretation of

the Future Land Use Plan Map" describes the various future land

use categories in the Plan. It describes the Major

Institutional future land use category as follows:

Major Institutional Public Facilities,

Transportation and Utilities: Areas

designated as "Major Institutional, Public

Facilities, Transportation and Utilities"

allow facilities for federal, state and

local government activities, major public or

private health, recreational, cultural,

religious or educational activities, and

major transportation facilities and public

utilities. Residential facilities ancillary

to these uses are allowed to a maximum

density equivalent to "High Density

Multifamily Residential" subject to the same

limiting conditions.

Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006).

25. The same section describes the H/D Residential, in

pertinent part, as follows:

Areas designated as "High Density

Multifamily Residential" allow residential

structures to a maximum density of 150

dwelling units per acre, subject to the

detailed provisions of the applicable land

development regulations and the maintenance

of required levels of service for facilities

and services included in the City's adopted

concurrency management requirements.

MCNP at 20 (June 2006). (By way of comparison, M/D Residential

is described similarly except that the maximum density is 65

dwelling units per acre.)

26. According to the MCNP, the FLUM land use designations

"are arranged following the 'pyramid concept' of cumulative

inclusion, whereby subsequent categories are inclusive of those

listed previously, except as otherwise noted."

27. Ordinance 12911 was not reviewed by the Department of

Community Affairs (DCA), as required for text changes and large-

scale FLUM changes to a comprehensive plan.

28. On June 4 and 6, 2007, Petitioners filed their

petitions challenging the FLUM Amendment. Generally, the

Petitioners alleged that the FLUM Amendment did not qualify for

treatment as a "small-scale" development amendment; was

internally inconsistent with other provisions of the City's

Comprehensive Neighborhood Plan; was not supported by adequate

data and analysis; and was not "in compliance" with Florida's

Growth Management Act and its implementing regulations.

Scale of the FLUM Amendment

29. A small-scale development amendment may be adopted if

the "proposed amendment involves a use of 10 acres or fewer."

§ 163.3187(1)(c)(1), Fla. Stat.

30. According to the survey and architectural plans on

file with the City, the "net lot area" of the Site measures 6.72

acres. The City Zoning Code defines "net lot area" as "[t]he

total area within the lot lines excluding any street rights-of-

way or other required dedications." § 2502, City Zoning Code.

31. In determining how large (in square feet of floor

area) the planned Project could be, the architects were

permitted, under the City's zoning regulations, to multiply the

"floor area ratio" (FAR) for the High Density Multifamily

Residential zoning classification by an area larger than the

"net lot area." See § 401, City Zoning Code. The Zoning Code

allows the maximum square footage to be calculated using the

Site's "gross lot area." Id.

32. The City Zoning Code defines "gross lot area," in

pertinent part, as "[t]he net area of the lot, as defined

herein, plus half of adjoining street rights-of-way and seventy

(70) feet of any other public open space such as parks, lakes,

rivers, bays, public transit right-of-way and the like."

§ 2502, City Zoning Code.

33. If the "gross lot area" to be used to calculate the

maximum square footage involves properties under different

ownership, either the owners must apply jointly for a MUSP, or

they must enter a covenant-in-lieu of unity of title.

Properties joined by a covenant-in-lieu of unity of title need

not have the same land use designation or zoning classification.

If a covenant-in-lieu of unity of title is required, it need not

be submitted to the City until building permits are sought. At

present, no covenant-in-lieu of unity of title has been prepared

or executed for the Site.

34. The "gross lot area" used to calculate the Project's

maximum square footage of floor area measured 11.44 acres.

Thus, the Petitioners argued that the FLUM Amendment "involved a

use" of more than 10 acres. But the application requested a

land use designation change on only 6.72 acres of land. Because

High-Density Multifamily Residential use will not be made of the

proposed Perimeter Road, the access road known as Halissee

Street, or the proposed Bay Walk, a land use designation change

was not required for that acreage. Indeed, according to the

amended FLUM, there is no land use designation applied to

Halissee or to the northern part of the Perimeter Road.

Moreover, use of Halissee Street, the Perimeter Road, and the

Bay Walk is not exclusive to the 6.72 acres but will remain

shared with Mercy Hospital, its patients and employees, as well

as with the public.

35. The Petitioners attempted to prove that a marina was

planned to serve the development, which would involve a total

use of more than ten acres for residential purposes. Even if a

marina was initially contemplated, the application on file with

the City does not include one, and there are no approved plans

for a marina to be incorporated into the proposed residential

development. No marina is required to be developed in

connection with the 300 Grove Bay project. Moreover, there was

unrebutted evidence that it is highly unlikely that a marina

would ever be permitted under the statutes now regulating

Biscayne Bay. There is no evidentiary support for including any

part of Biscayne Bay in the acreage subject to the small-scale

FLUM Amendment because of a possible marina so as to support the

Petitioners' claim that Ordinance 12911 should not have been

processed as a small-scale amendment.

Suitability and Compatibility of FLUM Amendment

36. The Site is a parking lot. It is not environmentally

sensitive and has no significant natural or archeological

resources that would make it unsuitable for High Density

Multifamily Residential future land use.

37. Major Institutional accommodates the Vizcaya Museum

and Gardens and the Mercy Hospital complex, which are compatible

with and actually part of Coconut Grove. However, as pointed

out by the City and the Intervenors, Major Institutional also

allows future land uses that could be less compatible with the

surrounding land uses, including the Vizcaya Museum and Gardens

and the residential neighborhoods of Coconut Grove. While a

lower density residential future land use would be appropriate

and compatible with the surrounding uses, the issue in this case

is the density allowed by H/D Residential--up to 150 residential

units per acre, which Petitioners contend is incompatible with

the surrounding land uses and inconsistent with previous efforts

to protect Vizcaya and Coconut Grove from the intrusion of high-

density residential development. The Petitioners also contend

that the FLUM Amendment is not suitable on the bayfront.

(a) Suitability on the Bayfront

38. The Petitioners contend that H/D Residential is not

suitable on the bayfront for reasons related mostly to

aesthetics and views. While it certainly would be possible and

reasonable for a community to decide not to allow dense and

intense development on significant water bodies, it was not

proven by a preponderance of the evidence that the City has done

so, or that H/D Residential is unsuitable on the Site for that

reason.

(b) 2005 Evaluation and Appraisal Report

39. The City's 2005 Evaluation and Appraisal Report ("2005

EAR") focused on two citywide issues relevant here: (1) the

preservation and enhancement of historic and similar resources;

and (2) neighborhood integrity and the need to protect existing

neighborhoods from incompatible development.

(c) Vizcaya Museum Gardens

40. Industrialist James Deering built Vizcaya in 1916 as a

winter home. The land Deering purchased in the early 1900s was

developed into a 180-acre estate that included his

Mediterranean-style home, Italianate gardens, farms, orchards,

and lagoons. The mansion and gardens were designed by three

well-known architects and designers and constructed using local

materials.

41. When Deering died nine years later in 1925, Vizcaya

was left to his heirs, who eventually sold the south gardens and

western agricultural fields to the Catholic Diocese. The

southern acreage (which included the Site) was later developed

into a church (Ermita de la Caridad), a school (La Salle), and

medical and hospital facilities (Mercy). The Diocese sold the

western acreage, which was eventually developed into single-

family-home subdivisions.

42. In the 1950s, the Deering heirs sold the remaining

property, consisting of the mansion, gardens, and farm

buildings, to Dade County.

43. In 1952, Dade County opened Vizcaya to the public.

Since then, the County has operated Vizcaya as a museum, which

has welcomed thousands of visitors annually and is a popular

site for tourists, social functions, and photo shoots.

44. The Vizcaya mansion and gardens have historical,

architectural, and botanical significance. The mansion is an

"architectural masterpiece" and an "outstanding example of

Italian Renaissance Revival architecture." Vizcaya has been on

the National Register of Historical Places since 1977; it was

designated as a City Heritage Conservation District in 1984;

and, in 1994, it was designated a National Historical Landmark--

one of only three in Miami-Dade County.

45. The southernmost part of Vizcaya's gardens is

approximately 1,600 feet from the FLUM Amendment Site, and the

mansion is approximately 2,300 feet from the Site.

46. For the specific purpose of objecting to the 300 Grove

Bay project, The Vizcayans commissioned the Vizcaya Viewshed

Impact Assessment, which is referred to as the "balloon" study,

and the Vizcaya View Corridor Study. According to the balloon

study, the 300 Grove Bay condominiums would be visible from the

balcony on the south side of the mansion. Although the balloon

study was based on the original Project building heights and not

re-done using the reduced heights in the zoning and MUSP

approvals, the Petitioners' witnesses said that the Project

would still be visible through the existing landscape, even at

the reduced height. The Petitioners' witnesses opined that the

development of 300 Grove Bay would "overpower and overshadow"

the gardens on the south side of the mansion.

47. No federal, state, or local statutes, rules or

ordinances, including those relevant to this proceeding, protect

the view corridors of Vizcaya's gardens.

(d) Coconut Grove

48. The area known as Coconut Grove was settled in the

late 1800s and was considered "off the beaten path" from the

City which was incorporated in 1896. Coconut Grove was

incorporated as a separate municipality in 1919, but in 1925 it

was annexed to the City, as were five other municipalities.

Petitioners' witnesses observed that Coconut Grove is the only

one of these towns that has continued to retain a unique and

recognizable character. Vizcaya and Mercy Hospital, including

the parking lot site, are located in the northern area of

Coconut Grove.

49. Coconut Grove is primarily, but not entirely, a

residential community. Coconut Grove has an active "downtown"

business, commercial, and hotel district. The Petitioners

maintained that the northern area of Coconut Grove is primarily

single-family residential. However, it also includes a non-

conforming high-density development (Grove Isle), medium-density

residential, Mercy Hospital and its professional buildings, an

assisted living facility, a school, a church, and governmental

office buildings, as well as two museums (Vizcaya and the Museum

of Science).

50. A Coconut Grove Planning Study was commissioned and

printed in 1974, but the City never adopted it; therefore, it

has no official status.

(e) The Coconut Grove Neighborhood Conservation District

51. In 2005, the City adopted by ordinance the Coconut

Grove Neighborhood Conservation District (NCD-3). See § 803.3,

City Zoning Code. According to the Code, a Neighborhood

Conservation District is an "umbrella land use designation

overlay," which allows for the tailoring of a master plan or of

design guidelines for any area that meets certain criteria. See

§ 800, City Zoning Code.

52. The intent of the Coconut Grove Neighborhood

Conservation District is to "[p]reserve the historic, heavily

landscaped character of Coconut Grove's residential areas and

enhance and protect Coconut Grove's natural features such as

tree canopy and green space." § 803.1, City Zoning Code.

53. NCD-3 does not specify the High-Density, Multifamily

Residential (R-4) zoning classification. But that does not mean

that NCD-3 does not allow R-4. NCD-3 is enabling legislation

that imposes greater restrictions within a geographic "overlay"

for the zoning classifications addressed in Section 803.3. So

far, NCD-3 has not addressed G/I and R-4 but only Single-Family

Residential (R-1) and Commercial Districts. See § 803.3, City

Zoning Code. For that reason, the ordinance does not apply to

the Site.

(f) The "Grovenor Ordinance"

54. The so-called Grovenor Ordinance was the City's

response in July 2004 to the construction of a high-density

residential project on property in Coconut Grove zoned "G/I

Government and Institutional." The Grovenor Ordinance amended

subsection of Section 401 of the City's Zoning Code to provide

in pertinent part:

G/I Government and Institutional

Intent and Scale:

The government/institutional category

allows the development of facilities for

federal, state and local government

activities, major public or private health,

recreational, cultural, religious, or

educational activities, major transportation

facilities, public utilities, and public and

private cemeteries. Uses ancillary to these

uses are allowed to a maximum density and

intensity equivalent to the least intense

abutting zoning district, subject to the

same limiting conditions.

Intensity:

For residential uses: As for the least

intense abutting zoning district. . . .

* * *

Permitted Principal Uses:

Governmental and institutional uses as

described in the City of Miami Comprehensive

Development Plan designation of "Major

Institutional, Public Facilities,

Transportation and Utilities", . . . however

for accessory non-governmental or

institutional uses-only such uses as may be

permitted as principal uses in the least

intense abutting zoning district . . . .

§ 401, City Zoning Code.

55. The Grovenor Ordinance applies to property that is

zoned G/I. The City's and Intervenors' witnesses testified that

it applies only if G/I-zoned property ceases to be used for

governmental or institutional purposes and is used instead for

residential purposes. However, from the language of the

ordinance itself, it is beyond fair debate that it also applies

to G/I-zoned property that is used both for government or

institutional uses and for ancillary residential uses. Clearly,

without a FLUM change to a higher-density residential zoning

category, in Coconut Grove the residential use on the Site would

be restricted to the zoning classification of the "least intense

abutting zoning district."

56. Since it pertains to zoning, the Grovenor Ordinance

does not directly apply to the issue of whether a FLUM amendment

is "in compliance." However, it has some bearing on the proper

interpretation and application of the "pyramid concept" of the

MCNP's future land use designations, which is important to the

issues for determination in this case.

(g) The Pyramid Concept

57. The City and the Intervenors rely heavily on their

interpretation of the MCNP's pyramid concept of cumulative

future land use designations to support the FLUM Amendment in

this case. According to them, the FLUM Amendment is compatible

with surrounding land uses because high-density multi-family

residential use already is a permitted use as a matter of right

for land designated "Major Institutional." Similarly, they

maintain that, under the "pyramid" concept, high-density multi-

family residential use is permitted as a matter of right in all

of the commercially designated land in Coconut Grove. But it is

beyond fair debate that their interpretation of the "pyramid

concept" is incorrect.

58. As indicated, the "'pyramid concept' of cumulative

inclusion" applies "except as otherwise noted." In the Major

Institutional future land use category, it is noted that

residential facilities with densities equivalent to "High

Density Multifamily Residential" (i.e. , up to 150 units per

acre) are permitted only if "ancillary" to the listed major

institutional uses. Similarly, in the General Commercial future

land use category, it is noted that high-density residential

uses "are allowed by Special Exception only, upon finding that

the proposed site's proximity to other residentially zoned

property makes it a logical extension or continuation of

existing residential development and that adequate services and

amenities exist in the adjacent area to accommodate the needs of

potential residents." If the "pyramid concept" authorized high-

density multi-family residential use as a matter of right on

land designated either Major Institutional or General

Commercial, there would be no reason to limit those uses by

notation.

59. Under the correct interpretation of the "pyramid

concept" in the MCNP, free-standing high-density multi-family

residential use of up to 150 units per acre is not already

permitted as of right in either the Major Institutional or the

General Commercial land use categories.

(h) Compatibility

60. Notwithstanding the correct interpretation of the

"pyramid concept" in the MCNP, the Petitioners failed to prove

by a preponderance of the evidence that High Density Multi

Family Residential future land use on the Site is incompatible

with the surrounding uses or is inappropriate. The lower

density residential and other less intense future land uses in

the MCNP are buffered from the Site by Biscayne Bay and by

Medium Density Multifamily Residential future land use. Vizcaya

is buffered from the Site by Mercy Hospital and related medical

facilities and by La Salle High School. The compatibility of a

specific density of residential development on the Site with

less dense residential use in Coconut Grove and with Vizcaya,

including issues regarding building height and intrusion into

Vizcaya's view corridors, can be addressed through zoning and

MUSP proceedings.

Data and Analysis

61. Data and analysis is another matter. Because of their

incorrect interpretation of the "pyramid concept" in the MCNP,

the City and the Intervenors took the position that the FLUM

Amendment constitutes "down-planning" and that the City was not

required to perform the same level of analysis as it would have

if the amendment sought a designation that permitted uses of

greater impact, density, and/or intensity.

62. The experts disagreed on whether "down-planning" is a

concept in land use planning that can eliminate or minimize the

requirement for data and analysis. In any event, the FLUM

Amendment in this case could not be characterized as "down-

planning." See Findings 57-59, supra . The MCNP's pyramid

concept does not dispense with the need for data and analysis,

and the data and analysis in this case was minimal and

inadequate.

63. The primary data and analysis in this case was the

"Analysis for Land Use Change Request" (Analysis) that resulted

from the City staff's review. After identifying the proposed

land use designation and the uses permitted on it the Analysis

recommended "Approval" of the FLUM Amendment and made four

findings in support of "the position that the existing land use

pattern in this neighborhood should be changed. These findings

are as follows:

It is found that the subject property is

part of the Mercy Hospital and do [sic] not

front South Miami Avenue.

It is found that the "Major Institutional,

Public Facilities, Transportation &

Utilities" category allows 150 residential

units per acre and the requested "High

Density Multifamily Residential" designation

will allow a maximum density of 150

residential units per acre .

It is found that the requested change to

"High-Density Multifamily Residential"

designation will allow greater flexibility

in developing the property at the above

described location and therefore should be

changed as part of the MUSP.

It is found that MCNP Goal LU-1 maintains a

land use pattern that (1) protects and

enhances the quality of life in the city's

residential neighborhoods, and (5) promotes

the efficient use of land and minimizes land

use conflicts.

Id. (Emphasis in original.)

64. As to the City’s third finding, a particular

developer's flexibility is irrelevant to the determination of

whether the land use change is consistent with the MCNP. To the

extent that flexibility in general could be relevant to the

inquiry, the finding was incorrect. While allowing a free-

standing high-density residential project that would not

otherwise be possible, the FLUM Amendment eliminates all of the

non-residential uses permitted within the "Major Institutional"

category.

65. The second finding was based on the City's incorrect

interpretation of the "pyramid concept" of the MCNP, which led

the City to wrongly equate a primary use with an ancillary use

and to simply assume no population increase would result from

the FLUM Amendment, and that the FLUM Amendment would result in

"down-planning."

66. Attached to the City's Analysis was a separate

"Concurrency Management Analysis," which addressed in summary

form the data and analysis generated by the applicant and by the

City's staff to address the "impact of [the] proposed amendment

to land use map within a transportation corridor." The

"Concurrency Management Analysis" also was predicated on the

assumption that the FLUM change to HD Residential would not

increase population. Essentially, it assumed without any data

or analysis that infrastructure was available for 1,008 people

living on the Site, even though the Site is being used as a

parking lot at this time. This data and analysis was inadequate

to support the FLUM Amendment.

67. As to transportation, there was additional evidence of

a traffic analysis performed by the City in support of the

Project’s MUSP. This MUSP traffic analysis utilized a proper

starting point of zero population on the Site at this time. It

then projected the impact of the addition of 300 units. This

was more than the 225 units ultimately approved in the MUSP but

did not analyze the much larger potential increases in traffic

that would be allowed under the FLUM Amendment, which is not

limited to 300 units. There also was no data or analysis to

show that limiting the analysis to 300 units was reasonable. It

also only looked two years into the future. The MUSP traffic

analysis also did not address the 2005 EAR finding that Bayshore

Drive will be at level of service F by year 2025, without even

any development on the Site. In short, the MUSP traffic

analysis was inadequate to support the FLUM Amendment.

68. The City and Intervenor took the position that the

designation of the entire City as an urban infill area meant

that every parcel is appropriate for high-density multi-family

residential development. This is not correct. It is still

necessary to look at comprehensive plan to determine which areas

are appropriate for that kind of future land use and to have

data and analysis to support it. See Payne et al. v. City of

Miami et al. , 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA

Aug. 8, 2007) (on motion for rehearing).

69. For these reasons, the Petitioners proved by a

preponderance of the evidence that the data and analysis

supporting the FLUM Amendment were inadequate.

Inconsistency with City's Comprehensive Plan

70. The Petitioners failed to prove beyond fair debate

that the FLUM Amendment is inconsistent with any MCNP goals,

objectives, or policies.

State Comprehensive Plan

71. Petitioners did not prove that the FLUM Amendment at

issue is inconsistent with the State Comprehensive Plan.

CONCLUSIONS OF LAW

Small-Scale Amendment

72. A small-scale development amendment may be adopted if

the "proposed amendment involves a use of 10 acres or fewer."

§ 163.3187(1)(c)(1), Fla. Stat.

73. The word "use" in that statute refers to the property

that is the subject of the FLUM Amendment and is to be

developed--here, the Site to be developed for residential use.

It does not refer to adjoining property that will not be

developed for residential use and on which the land use

designation will not be changed. Therefore, "gross lot area"

under the City Code is not relevant to the determination whether

a "proposed amendment involves a use of 10 acres or fewer." Id.

74. The FLUM Amendment at issue involves the use of the

Site and, at most, the Perimeter Road, and Halissee Street,

which totals less than ten acres. For that reason, it qualified

for processing as a small-scale amendment under Section

163.3187(1)(c)1., Florida Statutes.

75. Petitioners contend that the decision in St. George

Plantation Owners' Ass'n, Inc. v. Franklin County, et al. , Case

No. 96-5124GM, 1997 Fla. ENV LEXIS 37 (Admin. Comm'n Mar. 25,

1997), requires a different result. In St. George , the site was

a 9.6-acre piece of a 58-acre parcel, know as the Resort Village

Property, which was owned by the intervenors. The 58-acre

parcel was the subject of a Development of Regional Impact

(DRI), which the intervenor planned to develop in phases. Phase

I involved developing the 9.6 acres into four hotels, commercial

and retail space, a beach club, a conference center,

recreational facilities, and a wastewater treatment plant.

Development of the planned wastewater treatment facility

required an additional five acres for subsurface absorption

beds. The County and intervenors acknowledged that the

absorption beds were integral to the design and successful

operation of the wastewater treatment plant, which was required

to serve the Phase I development. In determining that the

proposed amendment was not "small-scale," the ALJ concluded that

"the beds and plant are a single, interrelated system," and that

the County could not "change the land use designation for a

portion of the facility while ignoring the remainder." Id. at

*17.

76. The FLUM Amendment at issue here is not analogous to

the amendment in St. George . Here, there is no phased project;

TRG-MH has not purchased more than the 6.72-acre parcel; and

there is no planned facility, a portion of which requires the

development of adjoining property.

The Compliance Criteria

77. Section 163.3184(1)(b), Florida Statutes, states:

"In compliance" means consistent with the

requirements of ss. 163.3177, 163.3178,

163.3180, 163.3191, and 163.3245, with the

state comprehensive plan, with the

appropriate strategic regional policy plan,

and with chapter 9J-5, Florida

Administrative Code, where such rule is not

inconsistent with this part and with the

principles for guiding development in

designated areas of critical state concern.

Section 163.3177(2), Florida Statutes, and Florida

Administrative Code Rule 9J-5.005(5)(a) require that a

comprehensive plan be internally consistent. Any amendment to

the FLUM must be internally consistent with the other elements

of the comprehensive plan. See Coastal Development of North

Fla., Inc. v. City of Jacksonville , 788 So. 2d 204, 208 (Fla.

2001).

Burden and Standard of Proof

78. Since this is a small-scale amendment, 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.

However, in a "noncompliance" proceeding under Section

163.3184(10), Florida Statutes (where DCA has preliminarily

reviewed a comprehensive plan or plan amendment and found it not

"in compliance"), the statute provides, in pertinent part: "The

local government's determination that elements of its plans are

related to and consistent with each other shall be sustained if

the determination is fairly debatable." Section 163.3187(3)(a)

omits the sentence regarding internal consistency contained in

Section 163.3184(10). But it would be illogical not to extend

the same deference to the local government in a small-scale

amendment proceeding. For that reason, the fairly debatable

standard is applied to the Petitioners' allegations of internal

inconsistency.

79. "The fairly debatable standard of review is a highly

deferential standard requiring approval of a planning action if

reasonable persons could differ as to its propriety." Martin v.

Yusem , 690 So. 2d 1288, 1295 (Fla. 1997). If the internal

consistency of an amendment with other provisions within a

comprehensive plan is open to dispute on logical grounds, the

local government's determination that the amendment does not

create an internal inconsistency within the comprehensive plan

must prevail. See Hussey, et al. v. Collier County, et al. ,

DOAH Case Nos. 02-3795GM and 02-3796GM, Recommended Order, 2003

Fla. Div. Adm. Hear. LEXIS 304, at *56 (DCA Jul. 22, 2003; DOAH

Apr. 29, 2003), quoting Yusem at 1295. See also Martin County

v. Section 28 Partnership Ltd. , 772 So. 2d 616, 621 (Fla. 4th

DCA 2000) (if there is "evidence in support of both sides of a

comprehensive plan amendment, it is difficult to determine that

the County's decision was anything but 'fairly debatable'"). A

plan amendment creates an internal inconsistency only when it

conflicts with other provisions in the comprehensive plan.

Suitability and Compatibility

80. The Petitioners did not prove by a preponderance of

the evidence that High Density Multifamily Residential future

land use on the Site is incompatible with surrounding land uses.

(A fortiori , they did not prove beyond fair debate that the FLUM

Amendment was internally consistent with MCNP provisions

requiring compatibility of land uses.) Cf. Conclusion 84,

infra .

Data and Analysis

81. Section 163.3177(8), Florida Statutes, states: "All

elements of the comprehensive plan . . . shall be based upon

data appropriate to the element." The implementing rule states:

All goals, objectives, policies, standards,

findings and conclusions within the

comprehensive plan and its support

documents, and within plan amendments and

their support documents, shall be based upon

relevant and appropriate data and the

analysis applicable to each element. To be

based on data means to react to it in an

appropriate way and to the extent necessary

indicated by the data available on that

particular subject at the time of adoption

of the plan or plan amendment at issue.

82. As pointed out by the City and the Intervenors, the

Site was studied and analyzed at the time of the adoption of the

MCNP and through certain amendment cycles. Data and analysis

supporting earlier comprehensive plans may support a subsequent

amendment. See Wilson v. City of Cocoa , DOAH Case No. 90-

4821GM, (DOAH, Aug. 8, 1991; DCA, Sept. 11, 1991), cited in

Geraci v. Hillsborough County , DOAH Case No. 95-0259GM, 1999

Fla. ENV LEXIS 11 (DOAH Oct. 14, 1998; DCA, Jan. 12, 1999).

Nothing about the Site has changed, and it does not possess any

environmental or archeological significance that would require a

different analysis. However, the FLUM change to High Density

Multifamily Residential was significant and necessitated more

data and analysis.

83. Petitioners proved by a preponderance of the evidence

that the FLUM Amendment was not based on adequate data and

analysis primarily because of the City's incorrect

interpretation of the "pyramid concept" of the MCNP, which led

the City to simply assume that no population increase would

result from the FLUM Amendment.

Internal Consistency

84. Petitioners failed to prove beyond fair debate that

the FLUM Amendment is inconsistent with any MCNP goals,

objectives, or policies.

State Comprehensive Plan

85. The State Comprehensive Plan establishes general goals

and policy rather than the type of minimum criteria that are set

forth in Chapter 9J-5. Many of the provisions of the State

Comprehensive Plan apply to the State of Florida and its

agencies in planning on the state level, as opposed to local

governments. As a consequence, before a comprehensive plan

amendment can be found inconsistent with the State, careful

consideration has to be given to the entirety of that more

general plan, as well as to the entirety of the local

comprehensive plan. See § 163.3177(10)(a), Fla. Stat. (State

Comprehensive Plan "shall be construed as a whole and no

specific goal and policy shall be construed or applied in

isolation from the other goals and policies in the plans.")

86. Section 163.3177(10)(a), Florida Statutes, also

states: "[F]or the purpose of determining whether local

comprehensive plans are consistent with the state comprehensive

plan and the appropriate regional policy plan, a local plan

shall be consistent with such plans if the local plan is

"compatible with" and "furthers" such plans. The term

"compatible with" means that the local plan is not in conflict

with the state comprehensive plan or appropriate regional policy

plan. The term "furthers" means to take action in the direction

of realizing goals or policies of the state or regional plan."

87. In this case, the Petitioners proved that the data and

analysis were insufficient to support the FLUM Amendment at

issue. However, the Petitioners did not prove that the FLUM

Amendment was inconsistent with the MCNP or the State

Comprehensive Plan.

Disposition

88. Section 163.3187(3)(b)1., Florida Statutes, provides

in pertinent part: "If the administrative law judge recommends

that the small scale development amendment be found not in

compliance, the administrative law judge shall submit the

recommended order to the Administration Commission for final

agency action."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order that the FLUM Amendment adopted by City of Miami

Ordinance 12911 is not "in compliance," as defined by Section

163.3184(1)(b), Florida Statutes.

DONE AND ENTERED this 10th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of July, 2008.

COPIES FURNISHED :

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Jason Gonzalez, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399-0001

Jorge L. Fernandez, City Attorney

City of Miami

Miami Riverside Center, Suite 945

444 Southwest 2nd Avenue

Miami, Florida 33130-1910

Patrick J. Goggins, Esquire

Patrick J. Goggins, P.A.

Sun Trust Building, Suite 850

777 Brickell Avenue

Miami, Florida 33131-2811

John Charles Lukacs, Esquire

John C. Lukacs, P.A.

201 Sevilla Avenue, Suite 305

Coral Gables, Florida 33134-6616

H. Ray Allen, II, Esquire

Carlton Fields, P.A.

Post Office Box 3239

Tampa, Florida 33601-3239

Stephen J. Darmody, Esquire

Shook, Hardy & Bacon, LLP

Miami Center - Suite 2400

201 South Biscayne Boulevard

Miami, Florida 33131-4339

Lewis W. Fishman, Esquire

Lewis W. Fishman, P.A.

Two Datran Center, Suite 1121

9130 South Dadeland Boulevard

Miami, Florida 33156-7848

John K. Shubin, Esquire

Shubin & Bass, P.A.

46 Southwest First Street, Third Floor

Miami, Florida 33130-1610

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.