15-003834GM Tania Garcia, Pedro Romero, Miguel A. Gonzalez, And Agustin Gonzalez vs. City Of Hialeah, A Florida Municipal Corporation Status: Closed Recommended Order on Wednesday, November 18, 2015.

Summary: Petitioners did not prove beyond fair debate that the FLUM amendment was internally inconsistent with the City's plan or not supported by data and analysis regarding the suitability of the property or the availability of sewer service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TANIA GARCIA , PEDRO ROMERO, and

MIGUEL A. GONZALEZ,

Petitioners ,

vs. Case No. 15 - 3834GM

CITY OF HIALEAH ,

Respondent,

and

HIALEAH 10.1 ACRES, LLC , and

CHALET INVESTMENTS, LLC,

Intervenor s .

/

RECOMMENDED ORDER

A duly - noticed hearing was held in this matter on October 6

and 7 , 2015, in Miami, Florida, before Suzanne Van Wyk, an

A dministrative L aw J udge assigned by the Division of

Administrativ e Hearings .

APPEARANCES

For Petitioner s: Michael A nthony Rodriguez , Esquire

Harrington Law Associates, P . L . L . C .

100 South Olive Avenue

West Palm Beach , Florida 33401

For Respondent: Elizab eth M. Hernandez , Esquire

Akerman Senterfitt

One Southeast Third Avenue, 25th Floor

Miami, Florida 33131

For Intervenor s: Lawrence E. Sellers , Esquire

Holland and Knight, LLP

315 S outh Calhoun Street, Suite 600

Tallahassee, Florida 32301

Richard Perez, Esquire

Pedro Gassant , Esquire

Holland and Knight , LLP

701 Brickell Avenue, Suite 3000

Miami, Florida 3313 1

STATEMENT OF THE ISSUE

Whether the a mendment to the Future Land Use Map of the

City of Hialeah Comprehensive Plan , adopted by Ordinance 2015 - 34

on June 9, 2015 , is Ðin compliance,Ñ as that term is defined in

section 163.31 84(1)(b), Florida Statutes (201 4 ). 1 /

PRELIMINARY STATEMENT

On July 6 , 2015 , Petitioner s filed with the Division of

Administrative Hearings ( DOAH ) a Petition challenging the Future

Land Use Map Amendment adopted by City of Hialeah Ordinance

2015 - 34 (the FLUM Amendment) . The FLUM A mendme nt changes the

land use designation on a 9.99 - acre parcel from Low - Density

Residential to Medium - Density Residential.

The final hearing was scheduled for October 5 through 7,

2015, in Miami, Florida. Hialeah 10.1 Acres, LLC and Les Chalet

Investments, LLC, the owner s of the property subject to the FLUM

A mendment, were authorized to intervene on July 15, 2015, in

support of the FLUM A mendment .

On July 27, 2015, Respondent and Intervenors jointly moved

to dismiss the Petition, or in the alternative, fo r a more

definite statement, which was denied. The case was transferred

to the undersigned on September 22, 2015.

On September 23 , 2015, Petitioner s moved to amend the

Petition, which motion was denied, as was Petitioners Ó

subsequent Motion for Rehearing or Reconsideration. 2 / On

October 2, 2015, the undersigned entered an Amended Notice of

Hearing , rescheduling the final hearing for October 6 and 7,

2015.

The parties jointly submit ted a Pre - h earing Stipulation on

September 25, 2015 , an Amended Pre - hearing Stipulation on

October 2, 2015 , and a Restated Amended Pre - hearing Stipulation

on October 14, 2015.

At the final hearing, Petitione r s offered the testimony of

Debora Storch, City of Hialeah Planning and Zoning Offic i al;

Petitioner Tania Garcia; C. Wesle y Blackman, accepted as an

expert in urban planning; Raul Martinez; and David Alonso, City

of Hialeah Public Works Department water and sewer foreman

(temporary appointment) . PetitionersÓ Exhibits P1 through P7,

portions of P13, and P20 were admitted in e vidence.

Respondent and Intervenors jointly offered the testimony of

Ms. Storch, accepted as an expert in urban planning; Joseph

Corradino, accepted as an expert in traffic concurrency ; and

Armondo Vidal, City of Hialeah Director of Public Works,

accepted as an expert in sewer and water engineering.

RespondentÓs Exhibits R1 through R25 were admitted in evidence.

IntervenorsÓ Exhibits I1 through I8 were admitted in evidence.

The partiesÓ Joint Exhibit J 1 was also admitted in evidence.

The three - volume T ran script of the hearing was filed on

October 22, 2015 . The parties timely filed Proposed Re commended

Order s , which have been considered by the undersigned in

preparation of this Recommended Order. 3 /

FINDINGS OF FACT

The Parties

1 . Respondent, City of Hia leah (the City ) , is a municipal

corporation in 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.

2 . Petitioner s , Tania Garcia , Pedro Romero, and Miguel

Gonzalez , reside in and own property within the city of Hialeah.

Petitioners submitted oral or written comments concerning the

FLUM A mendment to the City , either in person or through their

attorney, during the period of time beginning with the

transmittal hearing for the FLUM Amendment and ending with the

adoption of the FLUM Amendment .

3 . Intervenor s , Hialeah 10.1 Acres, LLC and Les Chalet,

LLC , own the property which is the subject of the challenged FLUM

A mendment.

The Subject Property

4 . The p roperty subject to the FLUM Amendment (the

Property) is located in the northwest quadrant of the City in a n

established residential area. The 9.9 - acre parcel is bounded on

the east and west by West 9th and 10th Avenues, respectively; and

on the no rth and south by West 36th Street and West 33rd Place,

respectively. None of the boundary road s is an arterial road.

5 . The City characte rized the Property as an entire city

block. Assuming that description is accurate, t he city blocks

surrounding the s ubject Property are roughly half the size of the

subject P roperty.

6 . The existing land use designation of the Property is

Low - Density Residential, but the Property is not developed for

residential use . Since 1928, the Property has been used by

DuPont We athering Systems as the Florida Weathering and Testing

Lab for performing outdoor weathering tests on a variety of

finished products (e.g., garden products, automotive coatings).

The prominent structures on the Property include a laboratory

facility and m ultiple parallel rows of aluminum racks.

The FLUM Amendment

7 . The FLUM Amendment changes the FLUM designation of the

Property from Low - Density Residential (LDR) , which allow s

construction of up to 120 single - family dwelling units, to

Medium - Density Res identia l (MDR) , allowing up to 240 multi - fa mily

dwelling units. The FLUM A mendment authorizes a two - fold

increase in density, as well as a change in the type of

structures which may be developed on the Property. While both

the LDR and MDR categor ies allo w development of single - family

detached houses, townhouses, duplexes, and mobile homes, MDR

additionally allows condominiums , garden apartments, and

apartments.

8 . Intervenors originally applied to change the FLUM

designation on the Property from LDR to H DR, or High - Density

Residential. The application was altered to an amendment from

LDR to HDR prior to the City CouncilÓs second public hearing on

the application on June 9, 2015. Thus, the application

considered by the CityÓs Growth Management Advisory C om mittee on

April 10, 2015; by the CityÓs Planning a nd Zoning Board on

April 22, 201 5; and by the City Council on May 12, 201 5, would

have allowed development of roughly 400 units on the Property .

9 . In this case, the FLUM Amendment has been adopted with a

binding Declaration of Restrictions (Declaration) . Through the

Declaration , Intervenors have agree d to restrict development to

240 garden apartmen ts, provide sidewalks six and one - half feet in

width around the perimeter of the Property, establish and

ma intain perimeter landscaping, develop any on - street parking

abutting the P roperty required by the City during site plan

review , and provide Ðimprovements to the water and sewer facility

located at the southwest corner of West 10th Avenue and West 35th

Stre et as the City determines is necessary for the proposed

project.Ñ

Pump Station 106

10 . The City operates a sewer collection and transmission

system only. The CityÓs system connects to the Miami - Dade County

sewer system w hich provides sewer treatment and disposal .

11 . The City system collects effluent from residential and

non - residential uses within 83 distinct service areas, or basins.

The effluent is collected into gravity sewer lines which

transport the effluent through a series of small pump station s

into a master pump station for each basin . The master pump

station transports the collected effluent into the County sewer

system at a number of connections with the County force main.

The master pump stations operate on a system of high pressure.

12 . The City of Hialeah is subject to a Consent Decree

among Miami - Dade County, the Florida Department of Environmental

Protection, and the United States Environmental Protection

Agency, requiring repair of a number of sewer pump stations by

November 2017.

13 . The Property and the surrounding neighbor hood are

within the basin served by pump station 106. The station is

located directly across West 10th Avenue from the Property and

across West 35th Street from Petitioner GarciaÓs residence . The

station has a history of system failures, which have caused

sewage overflows in the surrounding residential area. Poor -

performing p umps at the station have also leaked effluent on -

site , releasing offensive odors. To put it mildly , the station

has been a bone of cont ention between the City and some area

residents .

14 . The station was last improved in 2007 by the addition

of two booster pumps designed to work during periods of high flow

in conjunction with the four pumps located Ðin the groundÑ at the

station.

1 5 . At the time of hearing, pump station 106 was under

conditional moratorium, meaning no new development can connect to

th e station until it is repaired or released from moratorium

status .

16 . Plans to improve the station are incorporated in the

Inventor y of Needs and Funding Sources section of t he CityÓ s

Comprehensive Plan, Capital Improvements Element (CIE), as

follows:

c. Sanitary Sewer

* * *

(3) Upgrades and Maintenance of the Sanitary

Sewer System: Planned projects include a new

regional sanitar y sewer pump station to serve

the northwest are a of the City, and an

environmental project. Planned upgrades

include the reconstruction and rehabilitation

of two regional sewer pump stations (Pump

Station 106 and Pump Station 6), and the

design and implem entation of two

rehabilitation programs including the

reduction of infiltration and inflow by

relining sewer mains and the upgrade and

rehabilitation of all 84 sanitary sewer pump

stations.

17 . The City has contracted with the environmental

engineering f irm of Hazen and Sawyer to redesign the station and

oversee reconstruction and rehabilitation. The station will be

redesigned to a Ðfully submersibleÑ station, eliminating the

exterior booster pumps.

18 . In the 2009 Annual Update to its Capital Improveme nt

Plan, the City budgeted a total of $ 18,171,000 for pump station

projects through 2015 . For fiscal year 2015 - 2016, the CityÓs

Public Works Department Budget include s $3,900,000 for

construction and upgrades to City pump stations subject to the

consent d ecree. The City anticipates resolving all issues

related to pump station 106 by January 2016.

PetitionersÓ Challenge

19 . Petitioners allege three bases on which the FLUM

A mendment should be found not Ðin compliance . Ñ First,

Petitioners allege broadl y that the FLUM Amendment is not

supported by data and analysis regarding the area Ðincluding the

character of the community and consistency of adjacent future

land uses and the availability of public infrastructure

capacity , Ñ cit ing sections 163.3177(6)(a )2. and 8. as grounds

therefore. Petitioners break this allegation down further into

two subsets: (1) the FLUM Amendment is not supported by data and

analysis concerning the suitability of the Property Ð for the

proposed residential development density an d intensity , Ñ and

(2) the FLUM Amendment is not based on data and analysis

demonstrating availability of sewer facilities . 4 /

20 . Additionally, Petitioners allege the FLUM Amendment is

internally inconsistent with the following pol icies of the

Comprehens ive Plan: Policies 1.1.3 and 1.6.5 of the Future Land

Use Element (FLUE) and Policy 1.2.2 of the CIE .

Availability of Sewer Service

21 . Section 163.3177(6)(a)2. requires plan amendments to be

based upon Ðsurveys, studies, and data regarding the area, as

applicable, including . . . the availability of water supplies,

public facilities, and services.Ñ

22 . Petitioners stipulated that the City has adequate sewer

capacity to serve the density of development allowed under the

FLUM Amendment, except with regar d to pump station 106.

23 . The most significant data on this issue is the fact

that the station is under a conditional moratorium , meaning no

new development can be connected to the station until it is

released from moratorium . The City was well aware of that fact

when it considered the FLUM Amendment. The City has accepted the

applicantÓs contribution of $250,000 toward needed repairs at the

station to bring it out of moratorium status.

24 . Petitioners introduced evidence supporting a finding

that, at various times in the weeks and months prior to the final

hearing, the station was not functioning at full capacity. For

example, both of the booster pumps had recently been sent out for

repair and only one booster pump was in place and functioning on

the date of hearing.

25 . Petitioners introduced the testimony of David Alonso, a

temporarily - appointed City sewer and water foreman, who has had

substantial experience with maintenance of the station.

Mr. Alonso testified that the station has been functionin g for

some time with Ðminimal maintenance,Ñ and described effluent

leaks and othe r malfunctions at the station.

26 . Petitioners also introduced evidence that the capacity

of the station to collect and transport effluent is reduced by

infiltration and infl ow (I/I) of ground and surface waters.

Infiltration occurs when ground water seeps into gravity sewer

pipes through cracks during seasons when the water table is high.

Inflow refers to the introduction of large volumes of surface

water into the system du ri ng rain storm events.

27 . The City did not deny the impact of I/I on sewer

capacity. In fact, Armondo Vidal, Director of Sewer and Water,

testified that he always takes I/I into account in calculating

the amount of capacity needed to service a developme nt by adding

Ð cushionÑ to the numbers.

28 . Mr. Alonso further testified that a manhole withi n the

basin had been intentionally plugged by an employee some six or

seven months prior to the final hearing. Mr. Alonso speculated

that the plug would have arti ficially increased capacity at the

station.

29 . Mr. Vidal acknowledged the plugging of the sewer

manhole and confirmed that it had been remedied shortly after it

was brought to his attention. Mr. Vidal explained that plugging

the manhole would have tem porarily minimized inflow to the

system.

30 . The City must meet the Miami - Dade County standard

limiting I/I to 5,000 gallons per day per inch per mile (gpdim).

The City has undertaken a relining project to reduce ground water

infiltration into the system . Mr. Vidal testified that lining is

complete on 37 to 39 percent of the sewer pipes in the basin

served by pump station 106 . According to the CityÓs 2014 Sewer

Rehabilitation Annual Report (January 2015) , the CityÓs lining

project has been Ðhighly succe ssfulÑ in reducing I/I. The report

documents a system - wide level of 3,655 gpdim, well below the

5,000 limit. 5 /

31 . Petitioners proved, at most, that the station is not

operating at its design capacity and requires significant repairs

in order to do so. Petitioners proved that , until recently, the

station has not been maintained well.

32 . Pursuant to the CityÓs Comprehensive P lan and

concurrency management system, development proposed under the

FLUM Amendment will be evaluated during site plan review i n

relation to existing and projected sewer system needs. The basis

for sanitary sewer concurrency analysis will be the available

capacity at the master pump station.

33 . Whether the station will have the capacity to serv e

development under the FLUM Amend ment at the time the development

takes place is a subject of fair debate, given the pump station

repairs underway , the relining project to reduce infiltration,

and other planned improvements for completion in January 2016 .

Land Use Suitability

34 . Sec tion 163.3177 (6)(a)8. b . requires future land use map

amendments to be based on an analysis of Ðthe suitability of the

plan amendment for its proposed use considering the character of

the undeveloped land, soils, topography, natural resources, and

historic resources on site.Ñ Section 163.3177(6)(a)2.c. requires

plan amendments to be based upon data regarding the character of

the undeveloped land. 6 /

35 . In processing the FLUM application, Ms. Storch

consulted the Comprehensive Plan data regarding topograp hy and

soils of the area and determined that neither presented any

limitation on development of the Property.

36 . Ms. Storch further consulted the Comprehensive Plan

list of historic archaeological and architectural sites and

confirmed that none were loc ated on the Property.

37 . Finally, Ms. Storch visited the Property and observed

no wetlands or other natural resources which would limit

development of the Property.

38 . Petitioners introduced no evidence to contradict

Ms. StorchÓs findings as to the sui tability of the Property for

the proposed use .

Internal Consistency

Policy 1.6.5

39 . Petitioner s next argue that the FLUM Amendment creates

an internal inconsistency with FLUE Policy 1.6.5., which states,

Ð [l] and uses that generate high traffic counts shall be

encouraged to locate adjacent to arterial roads and mass transit

systems.Ñ

40 . Ms. Storch testified that the proposed use of the

Property (MDR) is not a use that generates high traffic counts.

She testified that commercial uses, such as groce ry stores and

movie theaters, are much higher trip generators than multi - family

development. Further, she testified that single - family

development is sometimes a higher trip generator than multi -

family.

41 . Ms. StorchÓs opinion was based in part upon her review

of a State Department of Transportation (DOT) publication which

assigns trip generation rates to various land uses. The DOT data

is the type of data upon which a planning expert would reasonably

rely in formulating such an opinion. 7 /

42 . PetitionersÓ expert , C. Wesley Blackman , offered the

opposite opinion -- the proposed use constitutes a high traffic

generator. Mr. BlackmanÓs opinion was based on a comparison

between the traffic associated with LDR, for which the Property

is already appro ved, and MDR, the category being sought by the

applica nt. In Mr. BlackmanÓs opinion, the term Ðhigh traffic

generatorÑ is a relative term. He concluded the proposed use is

a high traffic generator because it will allow development at

twice the density of the existing category. Under Mr. BlackmanÓs

theory, it appears that any use that is more dense or intense

than LDR would be considered a high traffic generator.

43 . Ms. StorchÓs testimony is accepted as more credible and

more persuasive on the issue.

44 . Petitioner s did not prove that the FLUM Amen dment is

inconsistent with FLUE Policy 1.6.5. Whether the proposed use

of the Property MDR is a Ðhigh traffic generatorÑ is at least

subject to fair debate.

FLUE Policy 1.1.3

45 . Petitioners further urge that the FLUM Amendment is

inconsistent with FLUE Policy 1.1.3, which provides that Ð[w]here

excess public infrastructure exists, densities and land use

intensities may be increased, consistent with the future land use

plan.Ñ

46 . Essentially, Petit ioners Ó argument is that because pump

station 106 is under a conditional moratorium, there is no excess

sewer capacity to serve increase d development density on the

Property .

47 . The station has a maximum design capacity of between

6.5 and 8.2 million gal lons per day (mgpd). That capacity is

contingent upon proper functioning of all six pumps -- the four in -

ground pumps and the two booster pumps .

48 . Mr. Vidal testified that the station is currently

meeting a demand of 2.7 mgpd generated by the existing b asin

population . Mr. Vidal calculated the sewer demand which would be

generated by 240 units as 0.14 mgpd. Thus, the total demand on

the station , even with the anticipated development , is 2.84 mgp d ,

well below the stationÓs capacity of 6.5 to 8.2 mgpd.

49 . Mr. Vidal conceded that I/I diminishes capacity by

inflating the flow through the station. Mr. Vidal testified that

the station has an average flow of 4.5 mgpd taking into account

I/I. Thus, the station has excess capacity to collect and

transmit a n additional 0.14 mgpd, even accounting for I/I, when

opera ting at design capacity.

50 . Petitioners introduced no evidence to refute the

numbers and calculations presented by Mr. Vidal. Instead,

Petitioners presented the testimony of Mr. Alonso regarding

ongoing maintenance issues at the station. Mr. Alonso admitted

that he could not provide calculations regarding capacity of the

station.

51 . Mr. Vidal conceded the m aintenance issues raised by

Mr. Alonso and gave a detailed account of the repairs that are

outstanding and estimates for completion. Mr. Vidal testified

that three of the pumps were being repaired in Jupiter, Florida,

on the date of the hearing and should be repaired and reinstalled

within four to six weeks. Further, another pump was in th e yard

awaiting a part for replacement. When that pump is repaired, it

will be installed Ðin the groundÑ as a standby pump.

52 . Pursuant to Mr. VidalÓs testimony, the station will be

operating at design capacity within four to six weeks of the

hearing d ate.

53 . Petitioners did not prove beyond fair debate that the

City does not have excess sewer capacity to serve the inc reased

residential density allowed under the FLUM Amendment.

CIE Policy 1.2.2

54 . Finally, Petitioners assert the FLUM Amendment

c o nflicts with CIE Policy 1.2.2, which reads, as follows:

In coordination with other City departments,

the Planning and Development Department shall

evaluate land use amendments to determine the

compatibility of those amendments with the

adopted level of ser vice standards and to

ensure adequate funding is available when

improvements are necessary pursuant to such

land use amendments.

55 . Petitioner s Ó argument seems to be that Ms. Storch did

not either have or obtain information regarding the impact of the

FLUM Amendment on sewer level of service and funding available to

improve pump station 106 between the time she received the

application and made her recommendation for approval to the City

Council.

56 . The City has an established Growth Management Advis ory

Committee, or GMAC, consisting of representatives of the

following departments : planning and development, wat er and

sewer , police, fire , and streets. The GMAC convene s on a regular

basis to c onsider proposed Comprehensive P lan amendments. One of

the purpose s of the GMAC is to provide recommendations to the

local planning agency on applications for plan amendment.

57 . Ms. Storch provides GMAC members copies of the proposed

amendments in advance of the meeting s and she leads the meetings.

Departme nt heads may discuss at GMAC meetings any issues of

interest to their respective departments. The meetings are

informal, although they are advertised and open to the public.

58 . The FLUM Amendment was considered by the GMAC at its

meeting on April 10, 2 015. Cesa r Castillo represented the Public

Works Department at the me eting. During the meeting,

Mr. Castillo stated for the record that pump station 106 was

under a conditional moratorium and that the applicant had been

informed of that fact. Mr. Castil lo further stated that the

applicant was negotiating with the Department and the Mayor for

an agreement to contribute to needed repairs to the station. He

emphasized that the station would have to be released from

conditional moratorium before the develop ment could be permitted.

59 . Ms. Storch was also present, briefly, at a meeting

prior to the GMAC meeting between the applicant, the Mayor, and

Mr. Vidal, at which she was informed that the application was

forthcoming and that Mr. Vidal was meeting with the applicant to

resolve issues with regard to pump station 106.

60 . Ms. Storch is the CityÓs Planning and Zoning official

and the only planner on the City staff . She is re sponsible for

implementing the Comprehensive P lan, preparing and coordinating

am endments thereto, and preparing evaluations of and updates to

the plan.

61 . Ms. Storch is well aware of the contents of the CIE and

the five - year schedule of capital improvements for each

Department , which are incorporated into the plan and updated on

an annual basis. As such, Ms. Storch had knowledge of the Needs

and Inventory Analysis regarding pump station 106 in the CIE and

the schedule of capital improvements adopted therein for sewer

system repairs.

62 . Petitioners did not prove beyond fair debate that the

Planning Department did not coordinate review of the FLUM

Amendment with other departments regarding whether public

facility improvements were needed and whether funding was

available for those improvements.

CONCLUSIONS OF LAW

63 . The Division o f Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to sections 120.569, 120.57(1), and 163.3187 (5) (a) ,

Florida Statutes (2015) .

64 . To have standing to challenge a plan amendment, a

person must be an affecte d person as defined in section

163.3184(1)(a). Petitioners are affected persons within the

meaning of the statute.

65 . Intervenors have standing to intervene in this

proceeding because they own the property affected by the FLUM

Amendment.

66 . As the par ty challenging the FLUM Amendment,

Petitioners have the burden to prove the FLUM Amendment is not

Ði n compliance , Ñ as that term is defined in section

163.3184(1)(b).

67 . The CityÓs determination that the FLUM Amendment is in

compliance is presumed to be c orrect and must be sustained if the

CityÓs determination is Ðfairly debatable.Ñ

68 . The term Ðfairly debatableÑ is not defined in chapter

163, but in Martin Coun t y v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997), the Supreme Court of Florida explained that Ð [t]he fairly

debatable standard is a highly deferential standard requiring

approval of a planning action if reasonable persons could differ

as to its propriety.Ñ

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

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

70 . Section 163.3177(6)(a)2. require s that a plan amendment

be based upon Ðsurveys, studies, and data regarding the area, as

applicable, including . . . [t]he character of the undeveloped

landÑ and Ð[t]he availability of w ater supplies, public

facilities, and services.Ñ

71 . Section 163.3177(6)(a)8. requires future land use map

amendments to be based upon Ð[a]n analysis of the availability of

facilities and servicesÑ and Ð[a]n analysis of the suitability of

the plan amendme nt for its proposed use considering the character

of the undeveloped land, soils, topography, natural resources,

and historic resources on site.Ñ

72 . In both t he Petition and in PetitionersÓ issues of fact

for determination included in the Restated Amende d Pre - hearing

Stipulation, Petitioners allege that Ðthe record presented to the

City Council for the FLUM AmendmentÑ was not based upon surveys,

studies, and data regarding the availability of public facilities

and services and the suitability of the Prope rty for the proposed

use.

73 . PetitionersÓ allegations misconstrue the applicable

law. In a de novo hearing on a plan amendment challenge, the

data and analysis which may support a plan amendment are not

limited to those identified or actually relied upo n by the local

government. All data available to the local government in

existence at the time of the adoption of the plan amendment may

be relied upon to support an amendment in a de novo proceeding.

See Zemel v. Lee C nty . , 15 F.A.L.R. 2735 ( Fla. D epÓt C mty. A ff.

1993), aff'd , 642 So. 2d 1367 (Fla. 1st DCA 1994). Further, the

plan amendment may be supported by analysis conducted subsequent

to adoption of the plan amendment. See id.

74 . Petitioners failed to prove beyond fair debate that the

FLUM Amen dment is not supported by data regarding the character

of the undeveloped land or the availability of public facilities

and services. See § 163.3177(6)(a)2.c. and d., Fla. Stat.

Further, Petitioner s failed to prove beyond fair debate that the

FLUM Amendm ent is not based upon an analysis of either the

availability of public facilities or the suitability of the plan

amendment for its proposed use considering the character of the

undeveloped land, soils, topography, natural resources, and

historic resources on site. See § 163.3177(6)(a)8.a. and b.,

Fla. Stat.

75 . The elements of a comprehensive plan must be internally

consistent. See § 163.3177(2), Fla. Stat. ÐComprehensive plans

may only be amended in such a way as to preserve the internal

consistency of the plan pursuant to section 163.3177.Ñ

§ 163.3187(4), Fla. Stat.

76 . Petitioners did not prove beyond fair debate that the

FLUM Amendment is i nconsistent with FLUE Policy 1.6.3 or 1.1.3 ,

or CIE Policy 1.2.2.

77 . In summary, Petitioners failed to prove beyond fair

debate that the FLUM Amendment is not Ðin compliance . Ñ

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department o f Economic Opportunity

enter a final o rder determining that the City of Hialeah

Comprehensive Plan Amendment adopted by Ordinance No. 2015 - 34 on

June 9, 2015 , is Ð in compliance ,Ñ as that term is defined in

section 163.3184(1)(b ) .

DONE AND ENT ERED this 18th day of November , 2015 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of November , 2015 .

ENDNOTES

1 / A ll references herein to the Florida Statutes are to the 2014

v ersion, unless otherwise noted.

2 / Petitioners sought to raise the issue of whether the FLUM

Amendment met the definition of a small scale amendment pursuant

to secti on 163.3187(1) , which limits small scale amendments to

10 or fewer acres (with some exceptions). Notably, Petitioners

stipulated in paragraph 4 of the Restated Amended Pre - heari ng

Stipulation that the p roperty subject to the FLUM Amendment

consists of 9.9 acres.

3 / RespondentÓs an d IntervenorsÓ Joint Motion to Allow F iling of

a Proposed Recommended Order of Forty - One Pages was granted.

4 / The Petition also alleged that the FL UM Amendment would

reduce the level of service for transportation facilities, but

Petitioners abandoned that issue prior to the final hearing.

5 / The report also documents the gpdim of I/I on a basin - by -

basin level. Unfortunately, no evidence was introd uced to

support a finding of the particular basin number served by pump

station 106. Thus, this Recommended Order contains no finding

of the gpdim of I/I for that basin.

6 / Neither of the cited statutes requires, as Petitioners

allege, that the FLUM Ame ndment be Ðbased upon data regarding

the area, including the character of the community and

consistency of adjacent future land uses.Ñ The evidence

introduced by Petitioners regarding compatibility of the FLUM

Amendment with the surrounding community and adjacent future

land uses is wholly irrelevant. No findings on those

allegations are included herein.

7 / ÐAn expert witness may rely upon facts or data made known to

the expert at or before trial when the expert does not have

personal knowledge of those facts if the facts or data are of a

type reasonably relied on by experts in the subject to support

the opinion.Ñ Charles W. Ehrhardt, EhrhardtÓs Florida Evidence

§ 704.1, p. 784 (2013). Further, the expert may rely on facts

which have not been admitted. See Id. at p. 785.

COPIES FURNISHED :

Michael Anthony Rodriguez, Esquire

Harrington Law Associates, P.L.L.C.

100 South Olive Avenue

West Palm Beach, Florida 33401

(eServed)

Elizabeth M. Hernandez, Esquire

Akerman Senterfitt

One Southeast Third Av enue, 25th Floor

Miami, Florida 33131

(eServed)

Lawrence E. Sellers, Jr., Esquire

Holland and Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Pedro Gassant, Esquire

Holland and Knight, LLP

Suite 3000

701 Brickell Ave nue

Miami, Florida 33131

(eServed)

Richard Perez, Esquire

Holland and Knight, LLP

Suite 3000

701 Brickell Avenue

Miami, Florida 33131

James W. Poppell, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Stre et

Tallahassee, Florida 32399 - 4128

(eServed)

Jesse Panuccio, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Katie Zimmer, Agency Clerk

Department of Economic Opp ortunity

Caldwell B uilding

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

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 except ions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.