09-004713GM Flagler Retail Associates, Ltd.; Flagler S. C., Llc; And Sc Moto Associates, Ltd. vs. Department Of Community Affairs And Miami-Dade County Status: Closed Recommended Order on Wednesday, July 14, 2010.

Summary: Map change was not supported by a needs analysis or by adequate data and analysis; there was no assurance that the amendment would provide for affordable elderly housing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLAGLER RETAIL ASSOCIATES, )

LTD.; FLAGLER S.C., LLC; AND )

SC MOTO ASSOCIATES, LTD., )

)

Petitioners, )

)

vs. ) Case No. 09-4713GM

)

DEPARTMENT OF COMMUNITY )

AFFAIRS AND MIAMI-DADE COUNTY,)

)

Respondents, )

)

and )

)

BLUE LAKE DEVELOPMENT )

CORPORATION, )

)

Intervenor. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D. R. Alexander, on March 1, 2, and 3,

2010, in Miami, Florida.

APPEARANCES

For Petitioners: Daniel L. Abbott, Esquire

Weiss, Serota, Helfman, Pastoriza,

Cole & Boniske, P.A.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301-1949

John J. Quick, Esquire

Weiss, Serota, Helfman, Pastoriza,

Cole & Boniske, P.A.

2525 Ponce de Leon Boulevard, Suite 700

Coral Gables, Florida 33134-6045

For Respondent: L. Mary Thomas, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent: Eduardo I. Sanchez, Esquire

(County) Assistant County Attorney

Miami-Dade County Attorney's Office

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128-1930

For Intervenor: Eduardo A. Ramos, Esquire

Richard A. Perez, Esquire

Holland & Knight, LLP

701 Brickell Avenue, Suite 3000

Miami, Florida 33131-2847

STATEMENT OF THE ISSUE

The issue is whether a change on the Land Use Plan (LUP)

map of Respondent, Miami-Dade County (County), adopted by

Ordinance No. 09-28 on May 6, 2009, is in compliance.

PRELIMINARY STATEMENT

On April 30, 2008, an application was filed with the County

seeking to change the land use designation on a 41-acre parcel

of property in an unincorporated part of the County from Low-

Medium Density Residential Communities to Business and Office.

The property is owned by Intervenor, Blue Lake Development

Corporation (Blue Lake). The application was approved by the

County, with certain modifications, by Ordinance No. 09-28 on

May 6, 2009. On August 3, 2009, Respondent, Department of

Community Affairs (Department), published its Notice of Intent

to Find Miami-Dade County Comprehensive Plan Amendment in

Compliance (Notice of Intent). A Petition challenging the map

change was timely filed with the Department by Petitioners,

Flagler Retail Associates, Ltd., Flagler S.C., LLC, and SC Moto

Associates, Ltd. (collectively Petitioners), who each own and

operate a shopping/retail center in the vicinity of the site.

After the first petition was dismissed, without prejudice, an

Amended Petition for Administrative Hearing (Amended Petition)

was filed with the Department on August 26, 2009. In that

filing, Petitioners contended generally that the map change was

not supported by relevant and appropriate data and analysis

demonstrating a need for commercial development and that the

amendment would have an adverse impact on roadways. The matter

was referred by the Department to the Division of Administrative

Hearings on August 28, 2009, with a request that a formal

hearing be conducted. On September 4, 2009, Blue Lake filed its

Unopposed Petition for Leave to Intervene, which was granted by

Order dated September 8, 2009. By Order dated November 12,

2009, Petitioners were authorized to file their Second Amended

Petition for Formal Administrative Hearing, which generally

added allegations to support their standing as affected persons.

During the course of this proceeding, various discovery

disputes arose, and the disposition of those matters is found in

Orders entered in this docket.

By Notice of Hearing dated September 3, 2009, a final

hearing was scheduled on February 2-5, 2010, in Miami, Florida.

The hearing was rescheduled to February 16-19, 2010, and then to

March 1-3, 2010, at the same location. A Joint Pre-Hearing

Stipulation (Stipulation) was filed by the parties on February

25, 2010. The Stipulation indicated that Petitioners withdrew

their challenge to the plan amendment on the basis of traffic

and/or roadway issues.

At the final hearing, Petitioners presented the testimony

of Ryan Grindler, director of acquisitions for Terranova

Corporation, which owns Flagler Retail Associates, Ltd.; Mark R.

Woerner, Chief of the County's Metropolitan Planning Section and

accepted as an expert; Manual Armada, County Chief of Planning

Research; and William Pable, a Department Principal Planner.

Also, they offered Petitioners' Exhibits 10, 17, 19-25, 33, 34,

and 54, which were received in evidence. The County presented

the testimony of Franklin Gutierrez, County Zoning Services

Coordinator. Also, it offered County Exhibits 1-3, 5-14, 16,

18, 20, 27, 34, 38, 46-48, 53, 54, 57, 59, 60, 62, 64, 70, 73,

77-79, 111, 117, 119-127, 157-159, and 161A, which were received

in evidence. Blue Lake presented the testimony of Bruce E.

Rapee, Esquire, a retired non-practicing attorney and president

of Blue Lake; Stephen Bittel, a principal in Terranova

Corporation; Susana Hernandez-Hazzi, Director of Real Estate for

Cinco Realty Corporation, the managing corporation of Flagler

S.C., LLC; Juan J. Mayol, Jr., Esquire, an attorney with Holland

& Knight, LLP; Craig Mueller, corporate representative for S.C.

Moto, LLC; Brian Kosoy, general partner for S.C. Moto, LLC; and

Andrew Dolkart, an economics consultant and accepted as an

expert. Also, it offered Blue Lake Exhibits 4, 9, 14, 24, 31,

35, 36, 46, 48, 57, 60, 62, 63, 66, 73, 78, 79, 82, 86, 87, 94,

and 100, which were received in evidence. The Department did

not present any witnesses, but adopted the evidence of the

County and Blue Lake.

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

April 6, 2010. By agreement of the parties, Proposed Findings

of Fact and Conclusions of Law were filed by Petitioners,

County, and Blue Lake on June 28, 2010, and they have been

considered in the preparation of this Recommended Order.

On February 19, 2010, Blue Lake filed a Motion for

Attorney's Fees and Costs pursuant to Sections 57.105 and

120.595(1), Florida Statutes. 1 That filing is addressed in the

Conclusions of Law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The Parties

1. The County is a charter government that administers the

Comprehensive Development Master Plan (Plan), a broad-based

countywide policy-planning document to guide future growth and

development. See County Exhibit 1. The LUP is a component of

the Plan and contains the various land use designations. The

County adopted the Ordinance which approved the change in the

LUP that is being challenged here.

2. The Department is the state land planning agency

charged with the responsibility of reviewing plan amendments of

local governments, such as the County.

3. Blue Lake is a small, family-owned corporation that has

owned the subject property since 1966. It submitted oral and

written comments to the County during the adoption process.

4. Flagler Retail Associates, Ltd., owns and operates a

retail shopping center, Park Hill Plaza, located at 9501 West

Flagler Street, around one-half mile from Blue Lake's property.

It submitted comments and objections to the plan amendment

during the adoption process.

5. Flagler, S.C., LLC, owns and operates a retail shopping

center, Flagler Park Plaza, at 8221 West Flagler Street, which

is approximately 1.8 miles from the subject property. It also

submitted comments and objections to the plan amendment during

the adoption process.

6. SC Mota Associates, Ltd., owns and operates a retail

shopping center, the Mall of Americas, located at 7757 West

Flagler Street, which is approximately 25 blocks from Blue

Lake's property. It submitted comments and objections to the

plan amendment during the adoption process.

B. History of the Amendment

7. A mobile home park with around 275 units occupied the

property from 1957 until June 2007, when Blue Lake closed the

park. At the time of the hearing, the mobile home park was

around 80 percent demolished and cleared out. The property is

currently listed for sale by its owners.

8. The property is located within the County's Urban

Development Boundary at the northeast corner of West Flagler

Street, a six-lane divided arterial roadway running in an east-

west direction and designated as a major roadway, and Northwest

102nd Avenue (also known as West Park Drive). The southwest

corner of the property borders the City of Sweetwater and a

small shopping center. Directly to the west of the property and

across West Park Drive is a part of the Florida International

University campus. To the east are the campuses of a public

middle school and elementary school, while a large, single-

family residential area lies to the south. Directly north of

the property (and just south of State Road 836, also known as

the Dolphin Expressway) is the western portion of a large multi-

family residential complex (formerly a golf course) identified

in the record as the Fountainbleau Park area, which stretches

across Northwest 97th Avenue to the east.

9. The County has two cycles per year for applicants to

file amendments to the Plan, which may be text amendments having

countywide application, or site-specific LUP map amendments

having localized impact. In the April 2008 cycle, nineteen

applications were filed with the County, including Blue Lake's

Application No. 9. The application was filed by Gold River

Corporation, which had a contract to purchase the property from

Blue Lake contingent on a land use change. Gold River

Corporation later assigned the contract to Blue Lake Partners,

LLC, an entity unrelated to Blue Lake. The contract to purchase

later "fell through" for unknown reasons. Blue Lake is now

pursuing the land use change on its own behalf.

10. Application No. 9 requested that the County amend the

LUP map by changing the land use designation on a 41-acre parcel

from Low-Medium Density Residential Communities to Business and

Office. The former land use allows between six and thirteen

dwelling units per gross acre and could be fully developed with

as few as 244 residential units or as many as 533. The new land

use allows both residential and commercial development,

including a wide range of commercial uses such as retail,

professional services, and offices. If developed to its maximum

residential potential, the new category could accommodate more

than 2,200 units. If developed to its maximum commercial

potential, the new use would allow more than 679,000 square feet

of commercial floor space.

11. A Declaration of Restrictions is a tool permitted by

the Plan to craft "a more refined amendment" that can take into

consideration more than just a change in the land use of a

parcel of property. See County Exhibit 1 at I-74.1.

Restrictions are considered an adopted part of the Plan. Id.

They can provide greater restrictions on a parcel, delineate the

property's uses, and make the amendment more consistent with the

Plan than it might otherwise be. In July 2008, Blue Lake

offered a first Declaration of Restrictions that would prohibit

residential development on the property on the premise that the

change would satisfy a deficiency in land designated for

commercial development. See County Exhibit 60.

12. Land Use Element Policy LU-8E provides that

applications requesting amendments to the LUP map shall be

evaluated to consider consistency with the Goals, Objectives,

and Policies of all Plan Elements, other timely issues, and in

particular the extent to which the proposal, if approved, would:

i) Satisfy a deficiency in the Plan map to

accommodate projected population or economic

growth of the County; [and]

ii) Enhance or impede provision of services

at or above adopted LOS Standards; [and]

iii) Be compatible with abutting and nearby

land uses and protect the character of

established neighborhoods; and

iv) Enhance or degrade environmental or

historical resources, features or systems of

County significance; and

v) If located in a planned Urban Center, or

within 1/4 mile of an existing or planned

transit station, exclusive busway stop,

transit center, or standard or express bus

stop served by peak period headways of 20 or

fewer minutes, would be a use that promotes

transit ridership and pedestrianism as

indicated in the policies under Objective

LU-7, herein.

County Exhibit 1 at I-17-18. The various factors in the Policy

are weighed and balanced when considering a map change.

However, paragraph (i) is considered by the County to be the

"primary," or at the very least an "important," factor when

reviewing map changes since the County must ensure that there is

enough land for different types of uses to accommodate the

projected growth within the County. In fact, a County witness

could recall no more than one or two instances over the last

thirty years where the County had approved a LUP map change when

the staff had determined that there was a lack of need under

this provision.

13. Under the County's plan amendment review process, an

application for a change in the LUP map is first reviewed by the

Department of Planning and Zoning staff, then the applicable

community council, next by the Planning Advisory Board, and

finally by the Board of County Commissioners. Community

councils are elected bodies from thirteen different geographic

areas of the County that act as a planning board for making

recommendations on amendments that affect their jurisdiction.

14. A needs analysis determines the availability of

commercial land in a given area relative to the availability of

residential land. Consistent with its past practice of

performing a supply and demand analysis under paragraph (i) of

Policy LU-8E, the Department of Planning and Zoning staff looked

at need within two minor statistical areas (MSAs). An MSA is

one of 32 geographical subareas into which the County has been

subdivided for the purpose of collecting and inventorying data

on the supply and demand for different land uses and for

disaggregating the County's population into subareas. On very

infrequent occasions, the staff has used a "tier," which is an

aggregation or collection of several MSAs, rather than a single

MSA. Another geographic area known as a census tract, which is

much smaller than an MSA, is also allowed by the Plan. See Land

Use Element Policy LU-8F ("the adequacy of land supplies . . .

for business and office uses shall be determined on the basis of

localized subarea geography such as Census Tracts, [MSAs] and

combinations thereof"). As noted below, however, the County has

never used a census tract and considers them to be

"inappropriate" for a needs analysis in a case such as this.

Because the Blue Lake property is located within MSA 3.2 and

borders on MSA 5.4, the staff conducted a supply and demand

analysis in those two MSAs.

15. After completing its review, on August 25, 2008, the

staff recommended that the application be denied, mainly on the

ground the amendment was inconsistent with Policy LU-8E(i). See

County Exhibit 60 and Blue Lake Exhibit 24. Specifically, based

on its review of MSAs 3.2 and 5.4, the staff found that there

was already an ample supply of vacant and available commercial

land within the study area. In fact, out of 32 MSAs within the

County, MSA 3.2 had the second highest ratio of commercial

activity to population. Characterizing this supply of

commercial land as "significant," the staff noted that there

were more than 2,500 acres of commercial land in MSAs 3.2 and

5.4 either in use or vacant, and this category would not be

depleted until after the year 2025. As to residential land, the

supply of that category within the MSAs would be depleted by the

year 2015, and staff noted that the property was currently

designated residential and could serve to satisfy the future

demand for residentially designated land within the MSAs.

Despite a lack of need, the staff recommended that the amendment

be transmitted for further local and state review on the belief

that during the subsequent review process the application could

possibly be modified into a more mixed-use project and thus be

compatible with the Plan. In making this recommendation, the

staff did not examine other needs or deficiencies, such as the

need for elderly housing or for mixed-use properties.

16. On September 23, 2008, the amendment was reviewed by

the Westchester Community Council, which recommended that the

amendment be approved but only with a change to allow

residential development on the property to encourage a mixed-use

project.

17. Just before the amendment was considered by the

Planning Advisory Board, Blue Lake offered a second Declaration

of Restrictions, which reduced the amount of proposed commercial

development from 620,000 to 400,000 square feet. See Blue Lake

Exhibit 35. On October 6, 2008, the Planning Advisory Board

recommended approval and transmittal of the amendment with a

change to allow a potential mixed-use project.

18. Although the County staff continued to recommend that

the application be denied, on November 6, 2008, the Board of

County Commissioners considered the matter and voted to transmit

the amendment and second Declaration of Restrictions to the

Department for its review.

19. On March 13, 2009, the Department issued its

Objections, Recommendations, and Comments (ORC) Report to the

County. See Petitioners' Exhibit 10. In its ORC, the

Department noted, among other things, that the County had not

demonstrated a need for additional commercial uses on the

property since the County's need analysis demonstrated that the

commercial land in the area would not be depleted until after

the year 2025. The ORC went on to recommend that the County

either retain the current land use or provide data and analysis

to support the need for the proposed amendment and its

consistency with Policy LU-8E. On March 27, 2009, the County

staff issued its response to the ORC in which it agreed that

there was a lack of need for the amendment and that no new data

and analysis had been submitted by the applicant. On April 6,

2009, the Planning Advisory Board again considered the

application and recommended approval with the acceptance of the

proposed Declaration of Restrictions.

20. On April 13, 2009, Blue Lake's consultant submitted a

revised commercial needs analysis to the County which concluded

that there was in fact a need for more Business and Office

designated land within his defined study area. See Blue Lake

Exhibit 66. As a study area, the consultant used four census

tracts (rather than MSAs) comprising around two square miles.

The study area, in which Blue Lake's property was located, was

bounded by major roadways on three sides and a man-made canal on

the fourth. The consultant noted that the three roads and canal

created an insular area that discouraged residents from leaving

the area and thus justified in part further commercial

development in the study area.

21. Within his study area, the consultant found the ratio

of commercial to population to be 3.3 acres per 1,000 people,

which is significantly below the county-wide average of 6.0

acres per 1,000 people. He also found that the study area

contained 1.4 vacant acres split up in five different locations,

which because of the size and distribution made the study area

essentially depleted. Although the County generally uses the

same type of analysis as the consultant, it disagreed with the

consultant's use of a smaller selected study area as well as

many of his assumptions. Further, the County has never used a

census tract in performing a needs analysis. It rejected Blue

Lake's alternative needs analysis on the grounds it was not

peer-reviewed and it appeared to be using an inappropriate

primary trade area. The Department agreed with the County's

assessment of the study. Given the deficiencies cited by the

County, the report submitted by Blue Lake's consultant has not

been credited.

22. On May 1, 2009, Blue Lake offered a third Declaration

of Restrictions which continued to include a restriction on

commercial development of 400,000 square feet, but added certain

requirements addressing compatibility of the proposed

development of the property with existing residential

development to the north and west by prohibiting construction of

buildings on the northerly two acres of the property, requiring

a landscape buffer, prohibiting certain types of commercial uses

on the property, and including various other requirements not

relevant here. See Blue Lake Exhibit 78.

23. On May 5, 2009, the day before the Board of County

Commissioners' adoption hearing, Blue Lake submitted a fourth

Declaration of Restrictions which provided that commercial

development would not exceed 375,000 square feet; "up to 150

dwelling units [would be] designated for elderly housing";

"ancillary and accessory uses" for the elderly could be

constructed but would not exceed 15 percent of the floor area

of the elderly housing facility (or just over 25,000 square

feet); the northerly two acres would be reserved without

buildings or used for elderly housing; a buffer would be

installed; and certain commercial uses would be prohibited. See

Blue Lake Exhibit 79. Notwithstanding these restrictions, the

staff was still not satisfied that a need existed for further

commercial development or that the owner had a commitment to

build a specific minimum number of elderly housing units.

24. On the evening of May 5, 2009, in response to a

continued concern by the County staff, Blue Lake submitted a

fifth (and final) Declaration of Restrictions, which provided in

relevant part as follows:

Notwithstanding the re-designation of the

Property to "Business and Office" on the

County's LUP map, the maximum development of

the Property shall not exceed the following:

(a) 375,000 square feet of retail,

commercial, personal services and offices;

and (b) no less than 150 dwelling units

designated for elderly housing, as such term

is defined under Section 202 of the Fair

Housing Act of 1959 (12 USC 1701) and

Chapter 11A of the Miami-Dade County Code

(the "Code"), along with such ancillary and

accessory uses as may be desirable,

necessary or complementary to satisfy the

service needs of the residents, such as, but

not limited to, counseling, medical,

nutritional, and physical therapy, provided

that such ancillary and accessory uses shall

not exceed fifteen percent (15%) of the

floor area of the elderly housing facility.

County Exhibit 18. The final version of the restrictions

differed from the fourth version by changing the words "up to

150 dwelling units designated for elderly housing" to "no less

than 150 dwelling units designated for elderly housing," a

change suggested by the County staff.

25. As finally revised, the last set of restrictions

allows a mixed-use development and limits the owner to less than

sixty percent of the non-residential uses that could have been

available under the Business and Office land use designation.

It also requires the allocation of two acres of land for the

development of the elderly housing units as a precondition to

any commercial development of the property. This means that the

only permissible use on those two acres is the construction of

no less than 150 dwelling units for "elderly housing," or more

than sixty percent of the minimum residential units (233) that

could have been previously constructed at full development under

its current land use. If an elderly component is constructed,

depending on the size of the structure, it allows the owner to

provide "ancillary and accessory uses" for that component that

could increase the total amount of commercial use to more than

400,000 square feet. As a prerequisite to approval of its

application, Blue Lake executed and recorded the fifth

Declaration of Restrictions.

26. Although the staff still "[had] concerns regarding the

demand for additional commercial land in this area," and agreed

that the needs test in Policy LU-8E(i) had not been met, given

the foregoing restrictions, the inclusion of a mixed-use

component, and the need for elderly housing in the County, it

recommended adoption of the amendment.

27. Just prior to the vote by the Board of County

Commissioners on May 6, 2009, a Blue Lake attorney sent the

following email to a County staffer for the purpose of

clarifying the commitment that Blue Lake was making in the

Declaration of Restrictions:

Yesterday's revision to the Declaration

[which requires no less than 150 dwelling

units for elderly housing] simply expands

the universe of uses that would be permitted

on the property. By reducing the overall

square footage of commercial development,

the owner would set up the conditions to

allow the future development of 150 senior

housing units. However, because the

development of this type of project depends

on so many factors, including zoning

approvals, government incentives, etc., the

owner's ability to build 375,000 square feet

of commercial space is not in any way

dependent on whether any senior housing

units are actually built on the Property or

the timing of such construction . (Emphasis

added)

Blue Lake Exhibit 86. There is no record of any response by the

staff to the email or any indication that this "clarification"

was conveyed to the Board of County Commissioners prior to its

vote. A copy of the email was not provided to the Department.

After learning of its contents at the final hearing, a

Department planner stated that he considers the Declarations of

Restrictions to be controlling, and not the email.

28. On May 19, 2009, the County staff prepared a final

response to the ORC stating that while it rejected the alternate

needs analysis submitted by Blue Lake's consultant, and it

"partially concur[red] with the Department's view that there was

a lack of need, the applicant had adequately responded to its

needs objection by "commit[ting] to building a mixed-use project

and to reducing the commercial floor area." County Exhibit 10

at p. 2.

29. On June 11, 2009, the County transmitted the amendment

to the Department for its compliance review. On July 29, 2009,

the Department found the amendment to be in compliance and noted

in a staff report that "[t]he adopted amendment provides

additional information for application #9 related to need

(objection #1) and road capacity (objection #2)." Petitioners'

Exhibit 54. It went on to say that "the County adequately

responded to the Objection [regarding need] by reducing the

commercial uses and introducing a mixed use component by adding

residential units." Id. The Department's report added that

Blue Lake had "committed to building a mixed use project which

reduces commercial area from 679,535 square feet . . . to

375,000 square feet . . . [,] the mixed use development is

supported by FLUE Policy LU-10A and Land Use Concept #8, [and]

the mixed use development reduces the potential loss of housing

units on the site, which is supported by Goal 1 of the Housing

Element." Id.

30. On August 3, 2009, the Department published in the

Miami Herald its Notice of Intent to find the map change in

compliance.

31. On August 26, 2009, Petitioners filed their Amended

Petition with the Department generally contending that the map

change was not supported by adequate data and analysis for new

commercial development in the area and that the change in land

use would have an adverse impact on traffic. The latter

objection was later withdrawn. As clarified in Petitioners'

Proposed Recommended Order and the Stipulation, they contend

that the plan amendment is inconsistent with Land Use Element

Policies LU-8E(i), LU-8F, and LU-10A, Land Use Concept No. 8,

and Housing Element Goal 1, as well as the requirements of

Florida Administrative Code Rules 9J-5.005(2) and 9J-

5.006(2)(c). 2

C. Petitioners' Objections

32. Petitioners first object to the amendment on the

ground that the amendment is not consistent with Policy LU-8E(i)

because there is no demonstrated need for more commercial land

in the study area. That Plan provision requires that map

amendments "shall" be evaluated against all goals, objectives,

and policies of the Plan, "and in particular" whether the

amendment satisfies "a deficiency in the Plan map to accommodate

projected population or economic growth of the County."

Similarly, while Petitioners agree that the data and analysis

used to support the amendment are relevant and appropriate, and

were applied in a professional manner, they contend the data

support a continuation of the current residential land use.

33. Despite efforts by the County at hearing to downplay

the importance of Policy LU-8E(i) in its review process, it can

be inferred that a needs analysis under that provision is one of

the most important, if not primary, consideration when reviewing

LUP map changes. This is borne out by the fact that except for

one or two occasions, the County has never approved a map change

over the last thirty years without a needs analysis supporting

that change. The evidence supports a finding that the amendment

is inconsistent with Policy LU-8E(i) because there is no need

for 375,000 square feet of new commercial development within the

study area (MSAs 3.2 and 5.4). More specifically, the relevant

data and analysis used by the County reveal that the MSA in

which the property is located (MSA 3.2) has the second highest

ratio of commercial activity to population of the 32 MSAs in the

County; that the supply of existing or available commercial land

use will not be depleted for at least another fifteen years; and

that there is no "deficiency" of commercial land in the study

area to accommodate projected population or growth, as required

by the Policy. Although the amendment will authorize at least

375,000 square feet of new commercial development, both the

County and Department concede that a need for more commercial

land does not exist. It is beyond fair debate that the

amendment is inconsistent with Land Use Element Policy LU-8E(i).

Likewise, because the data and analysis do not support the

amendment, but rather support a contrary result, the County

reacted to the data in an inappropriate manner. See Fla. Admin.

Code R. 9J-5.005(2).

34. The County and Blue Lake argue, however, that even

though no need for commercial land exists, the final version of

the Declaration of Restrictions incorporates a provision

requiring an elderly housing component, which when combined with

the commercial component, changes the character of the land to a

mixed use. By Blue Lake offering this restriction, they argue

that the application, as amended, furthers other Plan provisions

that encourage affordable housing for the elderly ( e.g. , Housing

Element Goal 1, Objective HO-9, and Policy HO-9A) and furthers

provisions that encourage the rejuvenation of decayed areas (in

this case a 50-year-old mobile home park) with a mixture of land

uses ( e.g. , Land Use Element Policy LU-10A and Land Use Concept

8). Thus, they contend that the "need" requirement in Policy

LU-8E(i) is now met because Blue Lake is satisfying a deficiency

in both the supply of elderly housing as well as mixed uses.

35. To support the contention that a need for elderly

housing exists, the County posited that there is a need, "in

general," for elderly housing in the County. It also pointed

out that between the years 2000 and 2008 there was a small

percentage increase in the number of persons over 65 years of

age residing in the County. See County Exhibit 64. But the

County agrees that the needs test in Policy LU-8E(i) does not

distinguish between different types of residential use, such as

whether properties are available for elderly residents. Neither

does the test assess the need for mixed uses. Therefore,

regardless of whether or not there is a need for elderly housing

or mixed-use projects, any such need does not address the needs

test in Policy LU-8E(i). Even assuming arguendo that it does,

the County made no study of the need for "elderly housing" or

"mixed use projects" within MSAs 3.2 and 5.4.

36. The County and Blue Lake also contend that the

proposed mixed use furthers other laudable provisions within the

Plan, which more than offset any lack of commercial need. While

development of the property under the current or not yet

effective new land use would certainly "rejuvenate" an area now

occupied by a closed, 50-year-old mobile home park, and result

in the redevelopment of what is now probably a substandard urban

area, see Land Use Concept 8 and Land Use Policy LU-10A,

furtherance of those provisions by creating a new commercial

land use category does not trump the lack of need for more

commercial land.

37. Similarly, the Department found the amendment, as

adopted, was in compliance because the final version of the

Declarations of Restrictions introduced an elderly housing

mixed-use component, which essentially negated the lack of need

for commercial development. It is fair to infer from the

evidence that, like the County, the Department made this

determination in the belief that the elderly housing component

was intended to address a need for affordable or subsidized

housing for senior citizens. Petitioners contend, however, that

the final version of the Declarations of Restrictions does not

truly provide for an elderly housing/mixed use in this context.

38. The fifth version of the Declaration of Restrictions

references the term "elderly housing" as that term is defined in

"Section 202 of the Fair Housing Act of 1959 (12 USC 1701)" and

"Chapter 11A of the County Code." Because the federal law,

related regulations, and the entire Chapter 11A were not made a

part of the record by any party, it is appropriate to take

official recognition of those matters. The federal regulation

(section 1701) referred to in the amendment relates to

"supportive housing for the elderly" and the federal assistance

programs administered by the United States Secretary of Housing

and Urban Development. Its provisions are lengthy, cumbersome,

and complicated, and they have been amended numerous times since

their adoption. While the terms "elderly person" and "frail

elderly" are defined in sections 1701q(k)(1) and (2) of the

regulations, the undersigned was unable to find a specific

definition of "elderly housing," and counsel have provided no

citation. Chapter 11A of the County Code is a civil and human

rights ordinance that is enforced by a County Commission on

Human Rights. In its Proposed Recommended Order, the County has

cited Section 11A-13(5) as the provision that defines the term.

See County Exhibit 157. That provision enumerates "[e]xceptions

to unlawful practices" and defines "housing for older persons"

in the context of unlawful housing practices, but not in the

context of a land use change. Therefore, it has little, if any,

value in deciphering the meaning of the term "elderly housing"

in the Declaration of Restrictions.

39. When asked to define the term "elderly housing" as

used in the Declaration of Restrictions, no witness could give a

precise answer or refer to any provision in the federal law or

County Code where a definition of that term is found.

Therefore, if an elderly component is ever built on the

property, it is fair to infer that the developer has wide

discretion in choosing the type of units built and their price,

and there is no guarantee or requirement that they be targeted

for anyone except "elderly" persons, whatever age and associated

income status that may encompass. Because of these ambiguities

and uncertainties, the inclusion of an elderly housing component

does not further the goals, objectives, and policies of the Plan

encouraging affordable housing for all citizens, including the

elderly, that the County relies upon to support the amendment.

40. Finally, the fifth Declaration of Restrictions permits

a developer to either construct elderly housing or merely

reserve for an indefinite period of time the northerly two acres

of the 41-acre tract free from construction of buildings. If

construction ever occurs on those two acres, the only

permissible use is "no less than 150 dwelling units for elderly

housing." Petitioners contend that the commitment is illusory

since there is no requirement that a residential component ever

be built. The County and Blue Lake point out, however, that

when a map amendment is approved, there are no timetables for

when development must actually occur. Similarly, the Department

does not look at the timing of development when an amendment is

reviewed, and the fact that there is no time limitation in the

amendment does not render it out of compliance. While it is

reasonable in this case to question whether an elderly housing

component will ever be built, the plan amendment simply approves

a map change, and Petitioners have not cited any Plan

requirement, Department rule, or statute that mandates

development within a certain period of time in order for a map

change to be in compliance. Petitioners' argument is rejected.

41. In summary, it is beyond fair debate that (a) the plan

amendment is internally inconsistent with Land Use Policy LU-

8E(i); (b) the change in land use is not supported by the most

relevant and appropriate data and analysis; (c) by adopting the

amendment, the County reacted to the data and analysis in an

inappropriate manner; (d) the reference to "elderly housing" is

ambiguous, vague, and uncertain and does not further Plan

provisions that encourage affordable housing within the County;

and (e) even if the plan amendment furthers other Plan

provisions that encourage the rejuvenation of decayed urban

areas with mixed uses, on balance this consideration does not

outweigh the foregoing deficiencies. All other contentions by

Petitioners not specifically discussed herein have been

considered and rejected.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 163.3184(9),

Florida Statutes.

43. In order to have standing to challenge a plan

amendment, a challenger must be an affected person as defined in

Section 163.3184(1)(a), Florida Statutes. The facts establish

that Petitioners and Blue Lake own property and/or operate a

business within the County and made oral or written comments to

the County during the adoption process. Thus, they have

standing to participate.

44. Once the Department renders a notice of intent to find

a plan amendment in compliance, as it did here, that plan

provision "shall be determined to be in compliance if the local

government's determination of compliance is fairly debatable."

§ 163.3184(9)(a), Fla. Stat. Therefore, Petitioners bear the

burden of proving beyond fair debate that the challenged plan

amendment is not in compliance. This means that "if reasonable

persons could differ as to its propriety," a plan amendment must

be upheld. Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997).

45. For the reasons given in the Findings of Fact,

Petitioners have established beyond fair debate that the plan

amendment is internally inconsistent with a Plan policy

requiring a need for the new land use, it is not supported by

the most relevant and appropriate data and analysis, as required

by Rule 9J-5.005(2), and the County reacted to the data in an

inappropriate manner. Also, because the term "elderly housing"

is vague and uncertain, the amendment does not further other

Plan provisions encouraging affordable housing for the elderly.

Finally, while it may further Plan provisions encouraging the

rejuvenation of decayed urban areas by introducing mixed uses,

on balance these considerations do not outweigh the lack of

need.

46. On February 19, 2010, Blue Lake filed a Motion for

Attorney's Fees and Costs under Sections 57.105 and 120.595(1),

Florida Statutes, alleging that Petitioners' challenge, and

continuation of this proceeding, is both improper and frivolous

and has no basis in law or fact, but was made for the purpose of

"illegally quash[ing] competition." Also, in the parties'

Stipulation, Blue Lake added as a statement of disputed issues

"[w]hether Blue Lake is entitled to fees against Petitioners

under Section[s] 163.3184(12) and 120.569, Florida Statutes."

Stipulation at p. 5. Resolution of the request under Section

120.595(1), Florida Statutes, must be made in this Recommended

Order, while a separate final order is required to adjudicate

the claims arising under the other three statutes.

47. Petitioners are the prevailing party in this action,

their participation has substantially changed the outcome of

this proceeding, and they did not participate in this matter for

an improper purpose, as defined in the statute. Therefore, Blue

Lake is not entitled to fees and costs under Section 120.595(1),

Florida Statutes. In the event a final order or appellate

decision is rendered determining that the amendment is in

compliance, jurisdiction is retained for the limited purpose of

resolving the claims under the other three statutes so long as

the requests are renewed within 30 days after the matter becomes

final.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Administration Commission enter a

final order determining that the plan amendment (Application No.

9) adopted by Ordinance No. 09-28 on May 6, 2009, be found not

in compliance.

DONE AND ENTERED this 14th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 2010.

ENDNOTES

1/ All statutory references are to the 2009 version of the

Florida Statutes.

2/ All references are to the current version of the Florida

Administrative Code.

COPIES FURNISHED:

Barbara Leighty, Clerk

Transportation and Economic

Development Policy Unit

The Capitol, Room 1801

Tallahassee, Florida 32399-0001

Rick Figlio, General Counsel

Office of the Governor

The Capitol, Room 209

Tallahassee, Florida 32399-0001

Shaw P. Stiller, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

John J. Quick, Esquire

Weiss, Serota, Helfman, Pastoriza,

Cole & Boniske, P.L.

2525 Ponce de Leon Boulevard, Suite 700

Coral Gables, Florida 33134-6045

Daniel L. Abbott, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301-1949

L. Mary Thomas, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399-2100

Eduardo I. Sanchez, Esquire

Assistant County Attorney

County Attorney's Office

111 Northwest First Street, Suite 2810

Miami, Florida 33128-1930

Eduardo A. Ramos, Esquire

Holland & Knight, LLP

701 Brickell Avenue, Suite 3000

Miami, Florida 33131-2847

Lawrence E. Sellers, Jr., Esquire

Holland & Knight, LLP

Post Office Box 810

Tallahassee, Florida 32302-0810

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.