13-000009GM Robert Kemp, Sylvia Kemp, And Gregory Samms vs. Miami-Dade County Status: Closed Recommended Order on Thursday, August 1, 2013.

Summary: Petitioners did not prove beyond fair debate that land use map amendement re-designating property for industrial and office use was not "in compliance."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT KEMP, SYLVIA KEMP, AND

GREGORY SAMMS,

Petitioners,

vs.

Case No. 13-0009GM

MIAMI-DADE COUNTY,

Respondent,

and

ROSAL WESTVIEW, LLC,

Intervenor.

/

RECOMMENDED ORDER

On May 23 and 24, 2013, a duly-noticed hearing was held in

Miami, Florida, before Suzanne Van Wyk, an administrative law

judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank Wolland, Esquire

Law Office of Frank Wolland

12865 West Dixie Highway, Second Floor

North Miami, Florida 33161

For Respondent: Dennis Alexander Kerbel, Esquire

Lauren Morse, Esquire Miami-Dade County

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

For Intervenor: Douglas M. Halsey, Esquire

Sheldon Philp, Esquire

White and Case, LLP

Wachovia Financial Center

200 Biscayne Boulevard, Suite 4900

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether the amendment to the Land Use Plan Map of the

Miami-Dade County Comprehensive Development Master Plan (CDMP),

adopted by Ordinance No. 12-109 on December 4, 2012, is “in

compliance,” as that term is defined in section 163.3184(1)(b),

Florida Statutes (2011). 1/

PRELIMINARY STATEMENT

On January 3, 2013, Petitioner filed with the Division of

Administrative Hearings (DOAH) a Petition challenging the Land

Use Plan Map Amendment (Plan Amendment or LUP Amendment) adopted

by Miami-Dade County Ordinance 12-109. The Plan Amendment

changes the land use designation on a 195-acre parcel from Parks

and Recreation (approximately 191 acres) and Low-Medium Density

Residential (four gross acres) to Industrial and Office

(approximately 148 acres) and Business and Office (approximately

48 acres). The amendment was approved with a corresponding

Declaration of Restrictions limiting future development of the

property.

The case was scheduled for hearing on April 10, 2013, with

April 11 and 12 reserved for hearing, if necessary. Rosal

Westview, LLC (Westview), the owner of the property subject to

the Plan Amendment, was authorized to intervene in support of

the amendment. On April 24, 2013, this case was reassigned to

the undersigned. The final hearing was continued to May 20

and 21, 2013, upon Petitioner's unopposed Motion for Continuance

due to counsel's family emergency.

On April 28, 2013, Intervenor, Westview, filed a Demand for

Expeditious Resolution of the case pursuant to

section 163.3184(7), Florida Statutes. The following day,

Petitioners' counsel filed a Motion to Withdraw and a request

for a 30-day continuance to allow Petitioners to find new

counsel. Following a telephonic hearing on the motions, the

undersigned denied the request for continuance and granted the

Motion to Withdraw.

On May 17, 2013, new counsel for Petitioners filed a Motion

for Continuance on Petitioners' behalf. Respondent and

Intervenor opposed the Motion. Following a telephonic hearing

on the Motion, the parties agreed to re-schedule the hearing to

May 23 and 24, 2013, and the undersigned entered an Order

Granting Continuance and Re-scheduling Hearing.

The Respondent and Westview jointly submitted a timely Pre-

hearing Stipulation on May 16, 2013, and Petitioners submitted a

Position Statement on May 22, 2013. At the final hearing,

Petitioners testified on their own behalves and presented the

testimony of Henry Iler, accepted as an expert in land use

planning, comprehensive planning, community redevelopment, and

land development codes. Respondent offered the testimony of

Mark Woerner, Assistant Director of Planning within Miami-Dade

County’s Department of Regulatory and Economic Resources.

Mr. Woerner was accepted as an expert in land use planning,

comprehensive planning, environmental planning, and

transportation planning. Intervenor offered the testimony of

Francisco Rojo, its Vice President; and Tom Pelham, accepted as

an expert in land use planning, comprehensive planning, zoning,

and environmental planning. 2/

The parties’ Joint Exhibits J-1 through J-3, J-7, and J-12

through J-14 were admitted into evidence. Petitioners’

Exhibits P-1, P-3, and P-6 through P-8 were admitted into

evidence without objection. Petitioners’ P-5, Composite P-4,

and Composites P-10 and P-11 were admitted over objection.

Respondent’s Exhibits R-9 through R-11, R-16 through R-17, R-22,

and R-23 were also admitted into evidence. The undersigned also

took official recognition of the Miami-Dade County Code,

chapter 33, Index to Zoning Code.

The four-volume Transcript of the hearing was filed on

June 7, 2013. Respondent and Intervenor timely filed a Proposed

Recommended Order. Petitioners requested and were granted an

extension to file their Proposed Recommended Order by July 1,

2013. The Order Granting Extension of Time allowed Respondent

and Intervenor to file a response to Petitioners’ Proposed

Recommended Order by July 3, 2013. Neither Respondent nor

Intervenor filed a response. The parties’ Proposed Recommended

Orders have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. Miami-Dade County (the County) is a political

subdivision of the State of Florida with the duty and

responsibility to adopt and maintain a comprehensive growth

management plan pursuant to section 163.3167, Florida Statutes.

The County adopted the challenged Plan Amendment under the

expedited State-review process codified in section 163.3184(3),

Florida Statutes.

2. Petitioners Robert and Sylvia Kemp own property and

reside at 11021 East Golf Drive, Miami, Florida. The Kemps

submitted oral or written comments concerning the Plan Amendment

to the County at the transmittal hearing.

3. Petitioner Gregory Samms owns property and resides at

11200 West Golf Drive, Miami, Florida, and submitted oral and

written comments concerning the Plan Amendment to the County

during the transmittal hearing.

4. Intervenor, Westview, is the owner of the property which

is the subject of the challenged Plan Amendment. Westview,

through its counsel, submitted comments in support of the

amendment at the various public hearings.

The Subject Property

5. The property subject to the Plan Amendment is the site

of the former Westview Country Club, a private club, with golf

course, which is now closed (Property). The Property is

approximately 196 gross acres, and is currently designated on the

Land Use Plan Map (LUP Map) as Parks and Recreation (191.6 gross

acres) and Low-Medium Residential (4.4 gross acres). It is

currently zoned for residential development, mostly single-

family, although there is some frontage along Northwest

119th Street zoned for limited business.

6. The Property is curvilinear and approximately one-

quarter mile wide. The site is mostly vacant, the former

clubhouse having been demolished, although two maintenance

buildings and a single-family home remain on the Property. There

is a continuous vegetative buffer along the boundary of the

Property.

7. Under the existing future land use designation and

zoning category, the Property could be developed at a maximum of

1,736 single- and multi-family residential units.

8. The Property is surrounded on all sides by a residential

neighborhood, generally known as Westview, in which Petitioners

reside. Westview is an older, established community, consisting

mostly of single-family residences with some multi-family

development on the western edge. East and West Golf Drive, both

local roads, surround the property boundary, providing internal

access within the Westview neighborhood.

9. The Property, as well as the surrounding neighborhood,

is bisected north to south by Northwest 119th Street (also known

as Gratigny Parkway), a major east-west arterial providing access

to other regional corridors such as State Road 826/Palmetto

Expressway to the west and Interstate 95 to the east.

10. Beyond the immediately adjacent residential

neighborhood, the Property is bounded by Northwest 22nd Avenue on

the east and Northwest 27th Avenue on the west; and by Northwest

107th Street on the south and Northwest 134th Street on the

north.

11. To the west, across Northwest 27th Avenue, is the

Miami-Dade County Community College North Campus, an

institutional use, and a concentration of industrial uses known

as the Northwest 27th-37th Avenue Industrial Corridor. East of

22nd Avenue is mostly low-density residential development, with

pockets of low-medium residential development and a business-and-

office corridor on either side of Northwest 119th Street.

Development to the south is a mix of single- and multi-family

residential.

12. The future land use designations of the surrounding

properties are institutional and industrial to the west, medium-

density residential to the south, low- and medium-density to the

east (with a business-and-office corridor along Northwest 119th

Street), and low-density residential to the north.

13. The Property is located inside the County’s Urban

Growth Boundary (UGB), outside of which development is strictly

limited in order to protect environmentally sensitive and

agricultural lands, as well as limestone mining activities. The

County only accepts proposals to change the UGB every two years

and requires a supermajority vote of the County Commission to

approve a change.

14. The Property is also located within the Urban Infill

Area (UIA), the major urban core of the County. The UIA boundary

follows Interstate 95 from the northern County line, goes west

along the Palmetto Expressway, and south along the Palmetto to

77th Street. The CDMP encourages development and redevelopment

within the UIA, prioritizing development on sites within the UIA

over sites outside the UIA.

The Amendment

15. Ordinance No. 12-109 changes the future land use

designation of approximately 148 acres of the Property to

Industrial and Office, and the remaining 47 acres to Business

and Office (Plan Amendment).

16. The owner of the Property plans to develop or cause to

be developed on the Property the Westview Business Park, with a

mix of Office and Industrial uses.

17. Under the proposed land use designations, without any

additional restrictions, the Property could be developed at an

intensity of up to 3,012,174 square feet of industrial use on the

Properties designated for Industrial and Office, and 733,550

square feet of retail use or 2,886 multi-family residential units

on the areas designated Business and Office.

18. In this case, the Plan Amendment has been adopted with

a binding Declaration of Restrictions. These development

restrictions are incorporated as text into the CDMP Land Use

Element Restrictions Table. The Declaration restricts

development of the Property as follows:

a) Limits Industrial development to 1.6 million square feet

of light industrial, warehouse, and flex space, and

further limits warehouse/distribution space to no more

than 700,000 square feet.

b) Limits Business and Office development to a maximum of

400,000 square feet of retail and service uses.

c) Limits Residential development to areas designated for Business and Office use, and a maximum of 2,000 units.

d) Limits total site development to generation of a maximum

of 3,297 net external PM peak-hour vehicle trips.

e) Ensures development of a mix of uses by limiting

construction of Industrial and Office to no more than

800,000 square feet prior to issuance of the first

Certificate of Occupancy within the Business and Office

parcels.

f) Prohibits the re-zoning of the Industrially-designated

portions to the IU-3 zoning district and development of

any use allowed in the IU-3 Industrial zoning district.

g) Prohibits all uses allowed in the IU-2 zoning district, except that storage and distribution of cement and clay products is allowed.

h) Prohibits most uses allowed in the IU-1 zoning district.

i) Requires the developer to improve the existing vegetative buffer between the Property and East and West Golf Drive to a sixty-foot landscaped buffer including a

seven-foot masonry wall, opaque fence, or berm, with

trees planted at a minimum height of 12 to 14 feet and

not farther than twenty-five feet on center.

j) Limits vehicular access to the Property exclusively from Northwest 119th Street, except that the Industrial and

Office portions will have one access directly from

Northwest 22nd Avenue.

3/

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k) Prohibits direct vehicular access between the Property

and the surrounding residential neighborhood.

l) Limits height of any hotel or motel use to 50 feet.

m) Commits the developer to work with the Florida Department of Transportation, Miami-Dade County, and the Miami-Dade County Expressway Authority to make improvements on Northwest 119th Street, including extension of an existing westbound travel lane and

construction of an eastbound turn lane.

n) Requires the developer to:

i. Incorporate Transportation Demand Management (TDM)

Strategies, pedestrian access and connectivity in

the including Business and Office developments,

pedestrian access to transit stops, and

construction of transit shelters.

ii . Direct all lighting away from adjacent residential uses, require sound deadeners for any metal work

or welding-related uses, and prohibit outdoor

speaker systems within the Industrial and Office

designation.

ii i. Dedicate a five-acre parcel for a public recreational facility and develop a multi-purpose

jogging, biking, and pedestrian track within the

rights of way of East and West Golf Drive.

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iv . Offer to dedicate vacant land within the Property

for a police substation or similar police use.

v. Work with the Public Works Department and the Golf

Park Homeowners’ Association to develop traffic

calming devices and neighborhood identification

signage for the residential neighborhood

immediately adjacent to the Property.

vi . Make reasonable efforts to employ applicants who

are residents of the zip code in which the

Property is located, use local businesses and the

local workforce in construction of the Project,

utilize minority-owned businesses for construction

contracts, and maintain non-discriminatory hiring

practices.

19 . In addition to establishing binding restrictions on the

development of the Property which run with the land, the

Restrictions can only be modified by amendment to the CDMP,

pursuant to section 163.3184, Florida Statutes, and applicable

procedures of the Miami-Dade County Code.

Pe titioners’ Challenge

20. P etitioners challenge that portion of the Plan

Amendment which re-designates approximately 148 acres of the

Property from Parks and Recreation to Industrial and Office.

Petitioners do not challenge that portion re-designating

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approximately 46 acres from Parks and Recreation to Business and

Office.

21. Petitioners challenge the Plan Amendment as not “in

compliance” on the basis of inconsistency with both the CDMP and

the Community Planning Act, part II, chapter 163, Florida

Statutes. Petitioners’ concerns center on the question of the

compatibility between the proposed land use and the existing

residential neighborhood.

C ompatibility

22. Petitioners maintain that the proposed designation of

the Property for Industrial development is inherently

incompatible with the adjoining residential use. Petitioners

rely on the following two CDMP provisions to support this

argument:

Policy LU-4B.

Uses designated on the LUP map and

interpretive text, which generate or cause to

generate significant noise, dust, odor,

vibration, or truck or rail traffic shall be

protected from damaging encroachment by

future approval of new incompatible uses such

as residential uses.

From the Textual Description of Industrial and Office Category: 4/

In general, the typical residential

development is incompatible with major

industrial concentrations and shall not occur

in areas designated as ‘Industrial and

Office’ on the LUP map to avoid conflicts and

for health and safety reasons.

1 3

23. The cited provisions support a finding that Industrial

development is generally incompatible with residential

development. That fact was admitted by the County in its Staff

Report on the proposed Plan Amendment.

24. Neither of the cited provisions prohibits the Plan

Amendment from being approved. Following these policies, the

County would be justified in denying an application for new

residential development within an area designated for Industrial

and Office. It does not follow, however, that the County must

deny a plan amendment allowing some industrial development

adjacent to residential development.

25. As explained by Intervenor’s expert, Thomas Pelham, in

a highly-urbanized area like Miami-Dade County’s central core, it

is unrealistic, if not impossible, to follow a Euclidean zoning

approach, where different uses are dispersed and separated from

one another. Compatibility in such a concentrated urbanized area

must be judged by assessing the potential impacts of the proposed

development and determining whether those impacts can be

mitigated.

26. “‘Compatibility’ means a condition in which land uses

or conditions can coexist in relative proximity to each other in

a stable fashion over time such that no use or condition is

unduly negatively impacted directly or indirectly by another use

or condition.” § 163.3164(9), Fla. Stat.

1 4

27. Petitioners allege the Plan Amendment is inconsistent

with the following group of policies which speak to compatibility

among uses in close proximity (emphasis in original):

GOAL

PROVIDE THE BEST POSSIBLE DISTRIBUTION OF

LAND USE AND SERVICES TO MEET THE PHYSICAL,

SOCIAL, CULTURAL AND ECONOMIC NEEDS OF THE

PRESENT AND FUTURE POPULATIONS IN A TIMELY

AND EFFICIENT MANNER THAT WILL MAINTAIN OR

IMPROVE THE QUALITY OF THE NATURAL AND MAN-

MADE ENVIRONMENT AND AMENITIES, AND PRESERVE

MIAMI-DADE COUNTY’S UNIQUE AGRICULTURAL

HERITAGE.

* * *

Objective LU-4

Miami-Dade County shall, by year 2015, reduce

the number of land uses, which are

inconsistent with the uses designated on the

LUP map and interpretive text, or with the

character of the surrounding area.

Policy LU-4A.

When evaluating compatibility among proximate

land uses, the County shall consider such

factors as noise, lighting, shadows, glare,

vibration, odor, runoff, access, traffic,

parking, height, bulk, scale or architectural

elements, landscaping, hours of operation,

buffering, and safety, as applicable.

Policy LU-4C.

Residential neighborhoods shall be protected

from intrusion by uses that would disrupt or

degrade the health, safety, tranquility,

character, and overall welfare of the

neighborhood by creating such impacts as

excessive density, noise, light, glare, odor,

vibration, dust or traffic.

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Policy LU-4D.

Uses which are supportive but potentially

incompatible shall be permitted on sites

within functional neighborhoods, communities

or districts only where proper design

solutions can and will be used to integrate

the compatible and complementary elements and

buffer any potentially incompatible elements.

Policy LU-8E.

Applications requesting amendments to the

CDMP Land Use Plan map shall be evaluated to

consider consistency with the Goals,

Objectives and Policies of all elements,

other timely issues, and in particular the

extent to which the proposal, if approved

would:

* * *

iii) Be compatible with abutting

and nearby land uses and protect the

character of established

neighborhoods; . . . .

28. Petitioners argue the County cannot find the uses

compatible because it did not consider all the possible negative

impacts to the existing residential development from the

adjoining industrial development, as required by Policy LU-4A,

and because the Plan Amendment does not protect the character of

the Westview neighborhood, as required by Policies LU-4C, LU-4D,

and LU-8E(iii).

29. The Declaration of Restrictions is critical to the

County’s determination that the uses, as proposed in this

application, are compatible. County staff originally identified

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LU-4G and LU-8E as policies which “could be impeded” by the Plan

Amendment application. However, the written staff analysis was

not amended after the Declaration of Restrictions was finalized.

The developer proposed different iterations of the Declaration of

Restrictions as the application progressed through the process.

The final Restrictions are the most stringent.

30. Mr. Woerner testified that his opinion that the Plan

Amendment is compatible is based on the dedication of the final

Restrictions.

31. The County considered noise impacts, as evidenced by

Restrictions which prohibit outdoor speaker systems, require

sound deadeners for metal work uses, and require that all air

compressors be of radial (silenced) design. Further, the

Restrictions require the developer to submit a site plan at re-

zoning which incorporates noise-reduction techniques, such as

traffic calming devices and wing walls surrounding loading bays.

32. Petitioners complain that these Restrictions are

meaningless because they contain no measurable standard, such as

a maximum decibel level. However, Petitioner offered no evidence

that a prohibition on outdoor speaker systems, sound deadeners,

and radial (silenced) design of air compressors were meaningless

or unenforceable standards.

33. Lighting is addressed in the Restrictions, which

require lighting to be directed away from the adjoining

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residential areas. Petitioners complain that the Restriction is

meaningless because it contains no measurable standard, such as

maximum lumens or brightness. However, Mr. Woerner testified that

the Restriction gives direction to the County staff at site plan

review to ensure that appropriate lighting is incorporated.

34. The Restrictions also evidence the County’s

consideration of traffic issues by limiting access to the

Industrially-designated areas via two access points –- one on

Northwest 119th Street and one from 22nd Avenue –- both of which

are major arterial roadways. Further, the Restrictions require

the developer to construct eastbound right-turn lanes and an

extension to the existing fourth westbound travel lane on

Northwest 119th Street to serve the Property. Finally, the

Restrictions prohibit all internal traffic access between the

proposed development and the residential neighborhood.

35. The County conducted a traffic study and evaluated a

traffic study submitted by the applicant in this case. The

studies form the basis for many of the access and traffic

provisions incorporated into the Restrictions.

36. Buffering is directly incorporated into the

Restrictions, which require a 60-foot landscaped buffer between

the residential property and the proposed development, as more

particularly described above. The landscape plan for the buffer

area must be submitted to the surrounding property owners for

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review and comment prior to the public hearing on the re-zoning

application for the Property.

37. In addition to the landscaping plan for the buffer

area, landscaping is further addressed in the Restrictions, which

require street trees of at least 12 feet along all roadways

abutting the Property at a spacing of 25 feet on center.

38. Runoff is addressed in the Restrictions by requiring

the developer to obtain a conceptual surface water permit from

the County prior to issuance of any building permit for the

Property.

39. Petitioners fault the County for excluding from the

Restrictions maximum height limits for warehouse and other

industrial uses, while including a height limit for hotel and

motel development. However, the County and Intervenor offered

uncontroverted evidence that the County’s zoning code contains

height limitations which will govern the industrial development.

In the Restrictions, the height of hotel and motel development is

limited beyond any regulation in the County’s zoning code.

40. Petitioners likewise fault the County for not

specifically including provisions addressing odor, vibration, and

other potential negative impacts on the residential area as

anticipated in Policy LU-4A.

41. The best evidence that the County considered the myriad

impacts from industrial development on the neighboring

1 9

residential areas is the prohibition of the majority of typically

allowable industrial uses.

42. The Restrictions prohibit all uses allowed in the IU-3

Industrial Unlimited zoning district.

43. Further, the Restrictions prohibit the following uses

allowed in IU-2, the Industrial Heavy Manufacturing zoning

district:

Asphalt drum mixing plants which produce

less than one hundred fifty (150) tons per

hour in self-contained drum mixers.

Rock and sand yards.

Manufacturing of cement and clay products,

such as concrete blocks, pipe, etc.

Soap manufacturing, vegetable byproducts,

only.

Railroad shops.

Sawmills.

Petroleum products storage tanks.

Dynamite storage.

Construction debris materials recovery

transfer facility.

44. Finally, the Restrictions also prohibit most of the 90

uses allowed in IU-1, the Industrial Light Manufacturing zoning

district.

5/

45. Eliminating the uses prohibited by the Restrictions,

the Property may be developed for the following uses:

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auditoriums, automobile rentals/storage and wholesale

distribution, bakeries (wholesale only), banks, bottling plants,

caterers, cold storage warehouses and pre-cooling plants,

contractors’ offices (not yards), engine sales, food storage

warehouse, hotel and motel, laboratories, leather goods

manufacturing (except tanning), locksmiths, office buildings,

pharmaceutical storage (subject to conditions), police and fire

stations, post offices, radio and television transmitting

stations and studios, restaurants, salesrooms and storage show

rooms (retail subject to limitations), schools for aviation and

electronic trades, physical training schools such as gymnastics

and karate, ship chandlers, telecommunications hubs (subject to

conditions), telephone exchanges, vending machine sales and

service, truck and bus stations and terminals, as well as the

storage and wholesale distribution of concrete, clay or ceramic

products, and novelty works.

46. By prohibiting the myriad uses typically allowed within

an Industrially-designated area, the Restrictions eliminate the

sights, sounds, odors, vibrations, glare and other potential

adverse impacts associated with those uses.

47. The Restrictions protect the neighborhood from noise,

light, glare, odor, vibration, dust and traffic, as required by

Policy LU-4C.

2 1

48. A preponderance of the evidence supports a finding that

the County considered the proximity of the neighborhood to the

proposed Industrial and Office designation, and approved the

designation only with severe limitations on allowable uses and

with restrictions designed to mitigate negative impacts and

protect the health, safety, and character of the adjoining

neighborhood. The Restrictions are designed to buffer the

neighborhood from potentially incompatible elements of the

adjoining industrial uses, as required by Policy LU-4D.

49. Neighborhood safety and quality of life are

additionally addressed by specific provisions of the

Restrictions. The developer is required to construct a multi-

purpose jogging, bicycle, and pedestrian track along the

perimeter of the property; offer to dedicate and improve a 5-acre

public recreational facility; and offer to dedicate property for

a police substation or similar police use. Further, the

developer is required to include pedestrian access improvements

across Northwest 119th Street between the Business and Office

parcels. These improvements are designed to increase pedestrian

access between the two sections of the neighborhood currently

divided by Gratigny Parkway.

50. Petitioners cite to the following additional provisions

in support of their argument that the Plan Amendment is

inconsistent with the CDMP:

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Policy LU-5B.

All development orders authorizing new land

use or development, or redevelopment, or

significant expansion of an existing use

shall be contingent upon an affirmative

finding that the development or use conforms

to, and is consistent with the goals,

objectives and policies of the CDMP including

the adopted LUP map and accompanying

‘Interpretation of the Land Use Plan Map’.

Objective LU-8

Miami-Dade County shall maintain a process

for periodic amendment to the Land Use Plan

map consistent with the adopted Goals,

Objectives and Policies of this plan, which

will provide that the Land Use Plan Map

accommodates projected countywide growth.

Policy LU-8A.

Miami-Dade County shall strive to accommodate

residential development in suitable locations

and densities which reflect such factors as

recent trends in location and design of

residential units; a variety of affordable

housing options; projected availability of

service and infrastructure capacity;

proximity and accessibility to employment,

commercial and cultural centers; character of

existing adjacent or surrounding

neighborhoods; avoidance of natural resource

degradation; maintenance of quality of life

and creation of amenities. Density patterns

should reflect the Guidelines for Urban Form

contained in this Element.

Policy LU-8D.

The maintenance of internal consistency among

all Elements of the CDMP shall be a prime

consideration in evaluating all requests for

amendment to any Element of the Plan. Among

other considerations, the LUP map shall not

be amended to provide for additional urban

2 3

expansion unless traffic circulation, mass

transit, water, sewer, solid waste, drainage

and park and recreation facilities necessary

to serve the area are included in the plan

and the associated funding programs are

demonstrated to be viable.

From the Textual Description of Parks and Recreation

Category:

Unless otherwise restricted, the privately

owned land designated as Parks and Recreation

may be developed for a use or a density

comparable to, and compatible with,

surrounding development providing that such

development is consistent with the goals,

objectives and policies of the CDMP.

51. The cited provisions are wholly inapplicable to the

Plan Amendment at issue.

52. Policy LU-5B applies to development orders. The Plan

Amendment at issue is not a development order.

See

§ 163.3164(14) through (16), Fla. Stat.

53. Policy LU-8A applies to evaluation of LUP map

amendments to accommodate residential development. The Plan

Amendment at issue does not designate property for residential

use. LU-8A requires the County to follow the Guidelines for

Urban Form in evaluating residential designations. While this

policy applies to both new and existing residential development,

it does not apply to the Plan Amendment at issue.

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54. Policy LU-8D speaks to factors for considering urban

expansion. The Plan Amendment at issue is urban infill, not

urban expansion.

55. The textual description excerpted from the Parks and

Recreation category is likewise inapplicable because it limits

development on lands designated Parks and Recreational without a

change to another land use category. In the case at hand, a map

amendment is sought, rendering those limitations inapplicable.

Urban Infill and Economic Development

56. Miami-Dade County maintains that the proposed Plan

Amendment is consistent with, and furthers, a number of other

CDMP provisions, as follows:

LU-1C. Miami-Dade County shall give priority

to infill development on vacant sites in

currently urbanized areas, and redevelopment

of substandard or underdeveloped

environmentally suitable urban areas

contiguous to existing urban development

where all necessary urban services and

facilities are projected to have capacity to

accommodate additional demand.

LU-10A. Miami-Dade County shall facilitate

contiguous urban development, infill,

redevelopment or substandard or

underdeveloped urban areas, high intensity

activity centers, mass transit supportive

development, and mixed-use projects to

promote energy conservation.

LU-12. Miami-Dade County shall take specific

measures to promote infill development that

are located in the Urban Infill Area as

defined in Policy TC-1B or in a built-up area

with urban services that is situated in a

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Community Development Block Grant-eligible

area, a Targeted Urban Area identified in the

Urban Economic Revitalization Plan for

Targeted Urban Areas, an Enterprises Zone

established pursuant to state law or in the

designated Empowerment Zone established

pursuant to federal law. [6/]

57. The proposed use of the Property is for infill

development and redevelopment of an underdeveloped parcel in a

highly urbanized area.

58. Petitioners’ expert, Mr. Henry Iler, questioned whether

the proposed use of the Property is infill development. He

argues that urban infill is traditionally higher-density

residential on small vacant sites within urban areas, explaining

that “Infill development a lot of times are quarter acre parcels

or it could be an acre inside of some development.” 7/ Mr. Iler’s

argument is not persuasive because it is the location of the

development, rather than its size or use, that defines it as

urban infill.

59. The Property represents a unique, if not unprecedented,

opportunity in Miami-Dade County –- almost 200 acres of vacant

land within the UIA, with ready access to major transportation

corridors for moving goods throughout Florida and beyond.

60. County staff estimates the project would create 2,000

direct jobs and up to 3,500 direct and indirect jobs combined.

Industrially-zoned property within the minor statistical

area (MSA) in which the Property is located, along with the

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closest adjacent MSA, is projected to be depleted by the year

2017. The designation of the Property for Industrial would add

over nine years’ supply of Industrial land within the two

combined MSAs.

61. The Plan Amendment includes a functional mix of land

uses, and the Restrictions ensure that a mix of uses actually

develops.

62. The Property is located within a quarter-mile of a

future rapid transit corridor, and partly within the North

Central Urban Community Center, which is planned for intensified

mixed-use development along the Northwest 27th Avenue and

Northwest 119th Street transit corridors. The site is currently

served by three Metrobus routes, one of which is programmed for

improvements in 2012. The Restrictions require the developer to

improve existing transit stops along Northwest 119th Street.

63. As summarized by Mr. Pelham, the Plan Amendment fits

Policy LU-10A “like a glove.”

Concepts

64. The CDMP Future Land Use Element contains a list of 14

long-standing concepts which are embodied in the CDMP.

Mr. Woerner testified that the Plan Amendment is consistent with

a number of those concepts, including:

8. Rejuvenate decayed areas by promoting

redevelopment, rehabilitation, infilling and

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the development of activity centers

containing a mixture of land uses.

9. Promote development of concentrated

activity centers of different sizes and

character to provide economies of scale and

efficiencies of transportation and other

services for both public and private sectors.

11. Allocate suitable and sufficient sites

for industrial and business districts to

accommodate future employment needs.

13. Avoid excessive scattering of industrial

or commercial employment locations.

65. Mr. Woerner testified that the Plan Amendment furthers

concept 8 by encouraging infill and a mix of land uses, furthers

concepts 9 and 13 by its location in relation to the nearby

Northwest 27th-37th Avenue Industrial Corridor and access to

major transportation routes, and furthers concept 11 by

fulfilling the need for industrial land in the two adjoining

MSAs.

66. Petitioners counter with concept 7, “Preserve sound and

stable residential neighborhoods,” arguing that the Plan

Amendment is contrary to this long-standing concept. Mr. Woerner

testified that the Plan Amendment protects the Westview

neighborhood through the extensive Restrictions, eliminating

myriad uses otherwise allowed in Industrially-designated areas

and requiring mitigation of anticipated negative impacts.

67. Petitioners maintain that the Restrictions do

not afford the neighborhood the protection required under

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the CDMP because the Restrictions are not binding, or

otherwise enforceable, and can be changed in the future by

the County Commission.

68. Petitioners’ argument is not well-taken. The competent

substantial evidence supports a finding that the Declaration of

Restrictions is incorporated into the Future Land Use Element of

the CDMP and can only be changed pursuant to the public notice

and hearing provisions of the County ordinances and the Community

Planning Act. If, as Petitioners speculate, the owner seeks to

permit an IU-3 use on the Property in the future, it will require

a future Plan Amendment to revise the Declaration of Restrictions

as if it were another land use amendment. Further, such

amendment is subject to a super-majority vote of the County

Commission.

Summary

69. Petitioners failed to establish beyond fair debate that

the challenged Plan Amendment is not in compliance.

CONCLUSIONS OF LAW

70. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties hereto pursuant

to sections 120.569, 120.57(1), and 163.3184(5), Florida

Statutes.

71. To have standing to challenge or support a plan

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

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section 163.3184(1)(a). Both Petitioners and Westview are

affected persons within the meaning of the statute.

72. Plan amendments adopted under the expedited state

review process do not receive an ORC report or a notice of intent

from the state land planning agency. See § 163.3184(3), Fla.

Stat. Instead, proposed plan amendments are sent directly to

reviewing agencies who have 30 days to send comments within their

respective areas of expertise back to the local government. In

this case, no evidence was introduced regarding any adverse

comments by any reviewing agency. Within 30 days after the

adoption process is concluded, an affected person may challenge

the plan amendment by filing a petition directly with DOAH.

See § 163.3184(5)(a), Fla. Stat. A hearing is then conducted to

determine "whether the plan or plan amendments are in compliance

as defined in paragraph [163.3184](1)(b)." Id.

73. "In compliance" means "consistent with the requirements

of §§ 163.3177, 163.3178, 163.3180, 163.3191, 163.3245, and

163.3248, with the appropriate strategic regional policy plan,

and with the principles for guiding development in designated

areas of critical state concern and with part III of chapter 369,

where applicable." § 163.3184(1)(b), Fla. Stat.

74. The "fairly debatable" standard, which provides

deference to the local government's disputed decision, applies to

any challenge filed by an affected person. Therefore,

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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 Cnty. v. Yusem , 690 So. 2d

1288, 1295 (Fla. 1997). Or, where 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.'" Martin Cnty. v. Section 28 P'ship, Ltd. , 772 So. 2d

616, 621 (Fla. 4th DCA 2000).

75. The standard of proof to establish a finding of fact is

preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.

76. The elements of a comprehensive plan must be internally

consistent. See § 163.3177(2), Fla. Stat. Of particular

importance in this case, the Act provides that “Each map

depicting future conditions must reflect the principles,

guidelines, and standards within all elements, and each such map

must be contained within the comprehensive plan.” Id.

77. Although Petitioners alleged that the Plan Amendment

re-designating the subject Property to Industrial and Office use

creates an internal inconsistency, they failed to prove that

allegation beyond fair debate. Petitioners did not prove beyond

fair debate that the Plan Amendment violated CDMP policies to

protect sound and stable residential neighborhoods. And, while

Petitioners did show that additional Restrictions might make the

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Plan Amendment more compatible with the adjoining land uses, they

did not show that it was not fairly debatable that the Plan

Amendment is compatible with the adjacent land uses.

78. The Future Land Use Element of a local comprehensive

plan shall provide for the compatibility of adjacent land uses.

See § 163.3177(6)(a)3.g., Fla. Stat. This provision is not

relevant to a determination of whether the specific Plan

Amendment is “in compliance.” Petitioner failed to show that the

CDMP did not provide for compatibility of adjacent uses.

79. Finally, the Act requires that the amount of land

designated for future planned uses provide a balance of uses to

foster vibrant, viable communities and economic development

opportunities. See § 163.3177(6)(a)4., Fla. Stat. Petitioners

failed to demonstrate that the CDMP LUP, as amended, is not

consistent with this provision. On the contrary, the

preponderance of the evidence supports the conclusion that the

LUP map, as amended by the Plan Amendment, provides for a

balance of uses and economic development opportunities.

80. In summary, Petitioners failed to prove beyond fair

debate that the Plan Amendment adopted on December 4, 2012, by

Ordinance No. 12-109 is not in compliance.

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RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Economic Opportunity

enter a Final Order determining that the Miami-Dade County Plan

Amendment adopted by Ordinance No. 12-109 on December 4, 2012, is

in compliance.

DONE AND ENTERED this 1st day of August, 2013, in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 1st day of August, 2013.

ENDNOTES

1/ All references herein to the Florida Statutes are to the 2012

version, unless otherwise noted.

2/ The parties also stipulated that Mr. Iler, Mr. Woerner, and

Mr. Pelham were experts in the CDMP amendment process, but the

undersigned does not recognize that as an appropriate field of

expertise. Further, the parties stipulated that Mr. Woerner and

Mr. Pelham were experts in the CDMP, which the undersigned does

not recognize as an appropriate area of expertise. Finally,

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Intervenor also offered Mr. Pelham as an expert in the field of

growth planning, although the parties did not offer any

testimony to distinguish that area from either land use planning

or comprehensive planning.

3/ Additional access is allowed, if required by the Miami-Dade

County Fire Rescue, Police, and/or Public Works.

4/ Pursuant to Policy LU-5A, textual descriptions are adopted

policy of the CDMP:

The textual material titled ‘Interpretation

of the Land Use Plan Map’ contained in this

Element establishes standards for allowable

land uses, and densities or intensities of

use for each land use category identified on

the adopted land Use Plan (LUP) map, and is

declared to be an integral part of these

adopted Land Use Policies.

5/ The following IU-1 uses are prohibited:

(2) Adult entertainment uses as defined in Section 33-

259.1.

(3) Aircraft hangars and repair shops, aircraft assembling

and manufacturing.

(4) Animal hospitals within soundproof, air-conditioned

buildings.

(5) Armories, arsenals.

(7) Auto painting, top and body work.

(7.2) Automobile self-service gas stations.

(7.3) Automobile service stations.

(8) Automobile and truck sales for new and/or used

vehicles.

(9) Automotive repairs.

(13) Blacksmith, gas steam fitting shops.

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(14) Boat or yacht repairing or overhauling, or boat

building.

(15) Boat slips used for the tying up of boats for the

purpose of overhauling or repairing.

(17) Brewery.

(18) Cabinet shops.

(19) Canning factories.

(20) Carpet cleaning.

(22) Clubs, private.

(24) Commercial chicken hatcheries.

(25) Manufacturing concrete, clay or ceramic products.

(26) Contractors' yards.

(27) Day nursery, kindergarten, schools and after school

care.

(27.1) Dog kennels.

(28) Dredging base or place where dredging supplies are

kept and where dredges or boats or machinery are stored,

repaired or rebuilt.

(29) Dry cleaning and dyeing plants.

(29.1) Electric substation.

(30) Engine service (gas, oil, steam, etc.).

(31) Fertilizer storage.

(33) Fruit packing and fruit preserving.

(34) Furniture manufacturing.

(35) Furniture refinishing.

(36) Garages—storage mechanical, including trucks, buses,

heavy equipment.

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(37) Glass installations.

(38) Grinding shops.

(40) Ice manufacturing.

(41) Insecticide, mixing, packaging and storage.

(44) Livery stables, for riding clubs, or a stable for

sheltering horses.

(46) Lumberyards.

(47) Machine shops.

(48) Marine warehouses.

(49) Mattress manufacturing and renovating.

(50) Metalizing processes.

(51) Milk or ice distributing station from which extensive

truck or wagon deliveries are customarily made.

(52) Millwork shops.

(54) Novelty works manufacturing.

(56) Ornamental metal workshops.

(57) Oxygen storage and filling of cylinders.

(58) Parking lots—commercial and noncommercial.

(59) Passenger and freight—stations and terminals—boats

and railroads.

(63) Power or steam laundries.

(64) Printing shops.

(66) Religious facilities.

(70) School—technical trade schools for mechanics.

(72) Shipyards and dry docks.

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(73) Sign painting shops.

(74) Steel fabrication.

(75) Storage warehouse for fodder.

(76) Taxidermy.

(79) Telephone service unit yards.

(80) Textile, hosiery and weaving mills.

(81) Upholstery shops.

(82) Utility work centers—power and telephone, etc.

(84) Veterinarians.

(85) Vulcanizing.

(88) Welding shops.

(89) Welding supplies.

(89.1) Plant nurseries.

(90) Wood and coal yards.

(91) The operation of an equipment and appliance center

for the testing, repairing, overhauling and reconditioning

of any and all equipment, appliances, and machinery sold by

the operator/occupant.

6/ Miami-Dade County highlighted additional policies in its

Staff Report, but the undersigned finds these to be the most

applicable.

7/ T.215:22-24.

COPIES FURNISHED

:

Dennis Alexander Kerbel, Esquire

Miami-Dade County

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

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Douglas M. Halsey, Esquire

White and Case, LLP

Wachovia Financial Center

200 South Biscayne Boulevard, Suite 4900

Miami, Florida 33131

Frank Wolland, Esquire

Law Office of Frank Wolland

12865 West Dixie Highway, Second Floor

North Miami, Florida 33161

Robert N. Sechen, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399-4128

Jesse Panuccio, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399-4128

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.

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