09-004297GM Section 7 Tract 64 Property, Inc., And The Grand At Doral I, Ltd. vs. City Of Doral, Florida And Department Of Community Affairs Status: Closed DOAH Final Order on Wednesday, August 11, 2010.

Summary: LDRs adopted by City are not inconsistent with the effective County comprehensive plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SECTION 7 TRACT 64 PROPERTY, )

INC. , AND THE GRAND AT DORAL I, )

LTD., )

)

Petitioner s, )

)

vs. ) Case No. 0 9 - 4297 GM

)

CITY OF DORAL AND DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondent s . )

___________________________ ___ _ )

FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on May 18 and 19,

2010, in Miami , Florida.

APPEARANCES

For Petitioner s: Beth - Ann Krimsky , Esquire

Rob yn L. Libow, Esquire

Jamie B. Wasserman, Esquire

Ruden McClosky, P.A.

200 East Broward Boulevard, Suite 1500

Fort La uderdale, Florida 3330 1 - 19 63

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

(City) Jamila V. Alexander, Esquire

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

3099 East Commer cial Boulevard, Suit e 200

Fort Lauderdale, Florida 33308 - 4311

For Respondent : L. Mary Thomas, Esquire

(Department) Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The issue is whether the Land Development Code (LDC)

adopted by Ordinance No. 2007 - 12 on August 22, 2007, as amended

on February 27, 2008, is inconsistent with the effective

c omprehensive p lan for the City of D oral (City), which is the

Miami - Dade Comprehensive Development Master Plan (County Plan) .

PRELIMINARY STATEMENT

On August 22, 2007, the City adopted a new LDC. Because

the City's Comprehensive Plan (City Plan) was not yet effective

due to administrative l itigation, the controlling comprehensive

plan for the City was, and still is , the County Plan. On

February 27, 2008, the City amended the LDC in minor respects.

On August 20, 2008, or within twelve months after the adoption

of the LDC , Petitioners, Secti on act 64 Property, Inc.

(Section 7) and The Grand at Doral I, Ltd. (The Grand) , or

Petitioners collectively , who own two parcels consisting of ten

acres in the City, timely filed with the City a Petition

pursuant to Section 163.3213(3), Florida Statut es (2009) , 1

contending that the new LDC was inconsistent with the County

Plan. On November 20, 2008, t he City served its response to the

Petition, which denied the Petition. On December 22, 2008,

Petitioners filed a Petition with Respondent, Department o f

Community Affairs (Dep artment), alleging generally that the LDC

is inconsistent with the County Plan and the new, but not yet

effective, City Plan. In a Determination of Consistency of a

Land Development Regulation (Determination) issued on July 23,

200 9, the Department denied the Petition and determined that the

LDC was not in consistent with either Plan .

On August 13, 2009, Petitioners filed a Petition for Formal

Proceedings with the Division of Administrative Hearings (DOAH)

alleging generally that t he Department's Determination was

incorrect for numerous reasons and asserting again that the LDC

was inconsistent with both the City and County Plans .

By Notice of Hearing dated August 26, 2009, a final hearing

was scheduled on November 9 and 10, 2009, in Miami, Florida. By

agreement of the parties, the matter was continued and

rescheduled to May 18 and 19, 2010, at the same location.

During the course of this proceeding, various discovery

disputes arose and their disposition may be found in Orders

issu ed in this matter.

On May 14, 2010, the City filed a Motion in Limine to Limit

the Scope of the Formal Proceedings seeking to limit the

evidence to those issues raised in the first Petition filed with

the City on August 20, 2008, rather than the issues lat er raised

before the Department and DOAH, and to further exclude all

evidence relating to Petitioners' site plans for developing its

property now pending before the City. The Motion was denied at

hearing , and Petitioners were allowed to present evidence t o

support all claims in the Petitions filed with the Department

and DOAH. However, evidence regarding Petitioners' pending site

development plans with the City is not relevant to this appeal.

A Joint Pre - Hearing Stipulation was filed by the parties on

May 14, 2010. At the final hearing, Petitioners presented the

testimony of Pablo Valdez, the owner and president of the

corporations that own the subject property; Mark Woerner, chief

of the County M etro politan P lanning Section ; Nathan Kogon, City

Planning a nd Zoning Director; Henry Iler, a land use consultant,

president of Iler Planning Group, and accepted as an expert; and

Dr. David W. Depew, president of Morris - Depew Associates, Inc. ,

a land planner, and accepted as an expert. Also, they offered

Petitione rs' Exhibits 1A, 1B, 2 - 11 , 13a, 13b, 15, 24 - 33, 36, 38,

39, 44, 45, 53 - 55, 59, 65, 67, 68, 70, 71, 75 - 78 , 83, 84, 101 -

148, 195, 210, 263, 416, and 4 28 (also identified in the record

as Joint Exhibit 428) , which were received in evidence. Exhibit

428 is th e deposition testimony of Robert Dennis, a De partment

Regional Planning Administrator. The City presented the

testimony of Nathan Kogon, City Planning and Zoning Director;

and Guillermo Olmedillo, an urban and regional planner and

accepted as an expert. Also, it offered City Exhibit 77, which

was received in evidence. The Department presented no witnesses

but adopted the evidence presented by the C ity. Finally,

Petitioners' Motion for Official Recognition of Public Records

was granted, and the following documents were officially

recognized: City of Doral Zoning Map Version 2007; City of

Doral Future Land Use Map; City of Doral Zoning Map adopted as

part of Ordinance 2007 - 12; and the Miami - Dade County Land Use

Plan (LUP) m ap.

The Transcript of the hearin g ( three volumes) was filed on

June 8 , 2010. P r oposed F i nal Orders w ere filed by Petitioners

and jointly by the City and Department on July 19, 2010, and

have been considered in the preparation of this Final Order.

FINDINGS OF FACT

Based upon all of the e vidence, the following findings of

fact are determined:

A . The Parties

1. Section 64 is a Florida corporation . The Grand is a

Florida limited partnership. Both entities are owned by the

same individual. On September 25, 2001, Section 7 acquired

owne rship of an approximate ten - acre tract of property in the

County (now the City) located along the southern boundary of

Northwest 82nd Street, between 109th and 112th Avenues. See

Petitioners' Exhibit 416. On December 16, 2005, title in one -

half of the pr operty was conveyed to The Grand in order to

divide the property into two different ownerships. Id. It was

Petitioners' i ntent at that time to build two hotel s on separate

five - acre tract s, one owned by Section 7 and the other by The

Grand.

2. The Cit y is located in the northwestern part of Dade

County and was incorporated as a municipality in June 2003. At

the time of incorporation, the County's Plan and Land Use Code

were the legally effective comprehensive plan and land

development regulations (LDR s), respectively . On April 26,

2006, the City adopted its first comprehensive plan. After the

Department determined that the Plan was not in compliance,

r emedial amendments were adopted on January 10, 2007 , pursuant

to a Stipulated Settlement Agreement . Although the Department

found the Plan, as remediated, to be in compliance, it was

challenged by a third part y , and the litigation is still

pending. See DOAH Case No. 06 - 2417. Therefore, the County Plan

is still the legally effective Plan . See § 163.31 67(4), Fla.

Stat.

3. The Department is the state land planning agency

charged with the responsibility of reviewing LDRs whenever the

appeal process described in Section 163.3213, Florida Statutes ,

is invoked by a substantially affected person .

B. History of the Controversy

4. When Petitioners' property was purchased in 2001, the

County zoning on the property was Light Industrial (IU - 1),

having been rezoned by the County to that designation on

October 9, 1984. See Petitioners' Exhibit 5. One of the use s

permitted under an IU - 1 zoning classification is a hotel with up

to 75 units per acre . See Petitioners' Exhibit 6. The land use

designation on the County's LUP m ap for the property is Low -

Density Residential (LDR) , with One Density Bonus, which allows

2.5 to 6 residential units per acre with the ability for a

"bump - up" in density to 5 to 13 units per acre if the

development includes specific urban design characteristics

according to the County urban design guide book .

5. La nguage found on pages I - 62 and I - 63 of the Future

Land Use Element (FLUE) in effect at the time of the

incorporation of the City (now found on pages I - 73 and I - 74 of

the current version of the FLUE ) provides in relevant part as

follows :

Uses and Zoning Not Specifically Depicted on

t he LUP Map. Within each map category

numerous land uses, zoning classifications

and housing types may occur. Many existing

uses and zoning classifications are not

specifically depicted on the Plan map.

. . . All existing lawful uses and zoning

are deemed to be consistent with the [Plan]

unless such a use or zoning (a) is found

through a subsequent planning study, as

provided in Land Use Policy 4E, to be

inconsistent with the criteria set forth

below; and (b) the implementation of such a

finding will not result in a temporary or

permanent taking or in the abrogation of

vested rights as determined by the Code of

Metropolitan Dade County, Florida.

As noted above, if there is a concern that zoning might be

inconsistent with land use, using the criteri a described in the

provision, the County may initiate a planning study to analyze

consistency and down - zone the property to a less intense use if

an inconsistency is found. Although the County initiated a

number of planning studies after it adopted its Pl an in 1993,

and ultimately down - zoned many properties, none was ever

initiated by the County for Petitioners' property.

6. Essentially, when existing uses and zoning are not

depicted on the County LUP map, the language in the FLUE

operates to deem lawfu lly existing zoning consistent with the

land use designation on the property. In this case, the parties

agree that the zoning of Petitioners' property is not depicted

on the County LUP map. Therefore, absent a planning study

indicating an inconsistency, the zoning is deemed to be

consistent with the land use category.

7. On August 22, 2007, the City adopted Ordinance No.

2007 - 12, which enacted a new LDC , effective September 1, 2007,

to replace the then - controlling County Land Use Code . Although

the LDC was adopted for the purpose of implementing the new City

Plan, u ntil the new Plan becomes effective, the LDC implements

the County Plan. Amendments to the LDC were adopted by

Ordinance No. 2008 - 1 on February 27, 2008. The LDC does not

change the zoning on Petitioners' property . However , it

contain s a provision in Chapter 1, Section 5, known as the

Zoning Compatibility Table (Table) , which sets forth the new

land use categories in the City Plan (which are generally

similar but not identical to the County land use categories) and

the zoning districts for each category. Pertinent to this

dispute is a n asterisk note to the Table which reads in relevant

part as follows:

Under no circumstances shall the density,

intensity, or uses permitted be inconsistent

wi th that allowed on the city's future land

use plan. . . . Zoning districts that are

inconsistent with the land use map and

categories shall rezone prior to

development.

See Petitioners' Exhibit 27 at p. I - 3. Under the Table, only

residential zoning distr icts (with up to ten dwelling units per

acre and no density bonus) are allowed in the City's proposed

LDR land use category. Th erefore, if or when the City Plan

becomes effective, before Petitioners can develop their

property, they must rezone it to a dis trict that is consistent

with the land use designation shown on the Table. There is no

specific requirement in the LDC that t he City conduct a planning

study when it has a concern that the zoning is inconsistent with

the relevant land use category in the new City Plan.

8 . Petitioners construed the a sterisk note as being

inconsistent with the text language on pages I - 62 and I - 63 of

the County Plan . See Finding of Fact 5 , supra . Accordingly , o n

August 21, 2008, Petitioners submitted a Petition to the City

pursuant to Section 163.3213(3), Florida Statutes , alleging

generally that they were substantially affected persons; that

the LDC was inconsistent with the County Plan; t hat the LDC

changes the regulations regarding character, density, and

intensity of us e permitt ed by the County Plan ; and that the LDC

was not compatible with the County Plan, as required by Florida

Administrative Code Rule 9J - 5.023 . 2 See Petitioners' Exhibit

103.

9 . The City issued its R esponse to the Petition on

November 20, 2008. Se e Petitioners' Exhibit 104. The Response

generally indicated that Petitioners did not have standing to

challenge the LDC; that the Petition lacked the requisite

factual specificity and reasons for the challenge; that the LDC

did not change the character, density, or intensity of the

permitted uses under the County Plan; and the allegation

concerning compatibility lacked factual support or allegations

to support that claim.

10 . On December 22, 2008, Petitioners filed a Petition

with the Department pursua nt to Section 163.3213(3), Florida

Statutes, alleging that the LDC implements a City Plan not yet

effective; that the LDC changes the uses, densities, and

intensities permitted by the existing County Plan; and that the

LDC changes the uses, densities, and intensities permitted by

the not yet effective City Plan. See Petitioners' Exhibit 105.

1 1 . After conducting an informal hearing on April 7, 2009,

as authorized by Section 163.3213(4), Florida Statutes, on

July 23, 2009, the Department issued a Determi nation of

Consistency of a Land Development Regulation (Determination).

See Petitioners' Exhibit 102. See also Section act 64

Property, Inc., et al. v. The City of Doral, Fla. , Case No.

DCA09 - LDR - 270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In

the Determination, the Department concluded that Petitioners

were substantially affected persons and had standing to file

their challenge; that the provision on pages I - 62 and I - 63 of

the County FLUE did not apply to Petitioners' property because

the uses and zoning of the property are specifically designated

on the LUP map; that the law does not prohibit the Department

from reviewing the LDC for consistency with the not yet

effective City Plan; and that because the LDC will require

Petitioners to rezone th eir property to be consistent with the

City Plan, the challenge is actually a challenge to a rezoning

action and not subject to review under this administrative

process . See § 163.3213 (2)(b) , Fl a. Stat.

1 2 . On August 13, 2009, Petitioners filed their Pe tition

for Formal Proceedings with DOAH raising three broad grounds:

that the LDC unlawfully implements a comprehensive plan not yet

effective; that it changes the uses, densities, and intensities

permitted by the County Plan and is therefore inconsistent with

the County Plan ; and that it changes the uses, densities, and

intensities permitted by the not yet effective City Plan and is

inconsistent with that Plan . See Petitioners' Exhibit 39.

These issues are repeated in the parties' Stipulation. As to

ot her issues raised by Petitioners, and evidence submitted on

those matters over the objection of opposing counsel, they were

tried without consent of the parties, and they are deemed to be

beyond the scope of this appeal.

C . The Objections

1 3 . Petitioners first contend that the LDC unlawfully

implements a comprehensive plan not yet in effect , in that it

was specifically intended to be compatible with, further the

goals or policies of, and implement the policies and objectives

of, the City Plan. See Fla. A dmin. Code R. 9J - 5.023. But

Petitioners cited no statute or rule that prohibits a local

government from adopting LDRs before a local plan is effective,

or that implement another local government's plan ( in this case

the County Plan). While the LDC was ad opted for the purpose of

implementing a City Plan that the City believed would be in

effect when the LDC was adopted, t he City agrees that until the

new City Plan becomes effective, the LDC implements the County

Plan. Even though the two Plan s are not ide ntical , and may even

be in consistent with each other in certain respects , th is does

automatically create an inconsistency between the LDC and County

Plan. Rather, it is necessary to determine consistency between

th ose two documents, and not the City Plan. Except for

testimony regarding one provision in the LDC and its alleged

in consistency with language in the County FLUE, no evidence was

presented, nor was a ground raised, alleging that other

inconsistencies exist. The Table note and the County Plan do

not conflict. T he LDC is not "inconsistent" merely because it

was initially intended to implement a local plan that has not

yet become effective .

1 4 . Petitioners next contend that the LDC changes the

uses, densities, and intensities permitted by the Coun ty Plan

and is therefore inconsistent with that Plan. Specifically,

they c ontend that the not e following the Zoning Compatibility

Table in Chapter 1, Section 5 of the LDC is inconsistent with

the language on pages I - 62 and 63 (now renumbered as pages I - 73

and I - 74) of the County Plan. In other words, they assert that

an inconsistency arises because the note requires them to down -

zone their property before development, while the County Plan

deems their zoning to be consistent with the County LUP map

unless a special planning study is undertaken.

1 5 . The evidence establishes that if there is a conflict

between zoning and land use on property wit hin the City , it is

necessary to defer to the language on pages I - 62 and I - 63 of the

County FLUE for direction. T his is because the County Plan is

the effective plan for the City. Under that language , if no

planning study has been conducted, the zoning w ould be deemed to

be consistent with the land use. On the other hand, if a

planning study is undertake n, and an i nconsistency is found , the

property can be rezoned in a manner that would make it

consistent with the land use. Therefore, the LDC does not

change the use, density, or intensity on Petitioners' property

that is permitted under the County Plan. It is at l east fairly

debatable that there is no conflict between the Table note and

the County Plan.

1 6 . Finally, Petitioners contend that the LDC changes the

uses, densities, and intensities permitted by the not yet

effective City Plan because the current industr ial zoning

designation will be inconsistent with the LDR land use

designation. Petitioners argue that once the new City Plan

becomes effective, the LDC requires them to down - zone their

property before development. However, t his concern will

materialize o nly if or when the new City Plan , as now written,

becomes effective ; therefore, it is premature.

17. Further, t he definition of "land development

regulation" specifically excludes "an action which results in

zoning or rezoning of land." See § 163.3213( 2)(b), Fl a. Stat.

Because the challenged regulation (the note to the Table) is "an

action which results in zoning or rezoning of land," the issue

cannot be raised in an administrative review of land development

regulations. Id.

1 8 . The other contentio ns raised by Petitioner are either

new issues that go beyond the scope of the Petition filed in

this case or are without merit.

CONCLUSIONS OF LAW

1 9 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the par ties her eto

pursuant to Sections 120.569, 120.57(1), and 163.3 213(5)(a) ,

Florida Statutes.

20 . Unlike a challenge to a comprehensive plan amendment,

i n order to have standing to challenge a n LDR, a challenger must

be an affected person as defined in Chapter 120, Florida

Statutes. See § 163.3213( 2)(a), Fla. Stat. The facts establish

that Petitioner s ' substantial interests are affected , and they

have standing to file this challenge.

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

that "[a]ll land develop ment regulations enacted or amended

shall be consistent with the adopted comprehensive plan, or

element or portion thereof . . . ." Because the City Plan is

still not effective, consistency must be measured against the

County Plan. Section 163.3194(3)(a) , Florida Statutes, provides

that a "land development regulation shall be consistent with the

comprehensive plan if the land uses, densities or intensities,

and other aspects of development permitted by such . . .

regulation are compatible with and further the objectives,

policies, land uses, and densities or intensities in the

comprehensive plan and if it meets all other criteria enumerated

by the local government." Rule 9J - 5.023 in turn sets forth

further criteria for determining the consistency of a n LD R.

That rule provides that

A determination of consistency of a land

development regulation with the

comprehensive plan will be based upon the

following:

(1) Characteristics of land use and

development allowed by the regulation in

comparison to the land use and development

proposed in the comprehensive plan. Factors

which will be considered include:

(a) type of land use;

(b) intensity and density of land use;

(c) location of land use;

(d) extent of land use; and

(e) other aspects of development, in cluding

impact on natural resources.

(2) Whether the land development

regulations are compatible with the

comprehensive plan, further the

comprehensive, and implement the

comprehensive plan. The term "compatible"

means that the land development regulati ons

are not in conflict with the comprehensive

plan. The term "further" means that the

land development regulations take action in

the direction of realizing goals or policies

of the comprehensive plan.

(3) Whether the land development

regulations inclu de provisions that

implement objectives and policies of the

comprehensive plan that require implementing

regulations in order to be realized,

including provisions implementing the

requirement that public facilities and

services needed to support developmen t shall

be available concurrent with the impacts of

such development.

22 . Section 163.3215(5), Florida Statutes, provides that

the adoption of an LDR "is legislative in nature and shall not

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

debatable that it is inconsistent with the plan." For the

reasons given in the Findings of Fact, Petitioners have failed

to establish beyond fair debate that the challenged LDC is

in consistent with the County Plan.

DISPOSTION

Based on the foregoing Findin gs of Fact and Conclusions of

Law, it is

ORDERED that the Petition is denied, and that Ordinance No.

2007 - 12, as later amended by Ordinance No. 2008 - 1, is not

in consistent with the County Plan.

DONE AND ORDERED this 11th day of August, 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August , 20 10 .

ENDNOTE S

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

Statutes.

2/ A ll references are to the current version of the Florida

A dministrative Code.

COPIES FURNISHED:

Beth - Ann Krimsky , Esquire

Ruden McClosky, P.A.

200 East Broward Boulevard, Suite 1500

Fort Lauderdale, Florida 33301 - 1963

L. Mary Thomas, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

Michael D. Cirullo, Jr., Esquire

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

3099 East Commercial Boulevard, Suite 200

Fort Lauderdale, Florida 33308 - 4311

NOTICE OF RIGHT TO JUDICIAL REVIEW

A part y who is adversely affecte d by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of appeal with th e Clerk of the Division of Administrative

Hearings and a copy, accompanied by filing fees prescribed by

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

the District Court of Appeal in the Appellate District where the

party resides. The not ice of appeal must be filed within 30 days

o f rendition of the order to be reviewed.