18-006103GM Mark Morgan And Jyette Nielsen, As Individuals vs. City Of Miramar, Florida Status: Closed Recommended Order on Wednesday, June 26, 2019.

Summary: Petitioners did not prove the plan amendment created internal inconsistencies with the existing comprehensive plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK MORGAN AND JYETTE NIELSEN,

AS INDIVIDUALS,

Petitioner s ,

vs. Case No. 18 - 6103GM

CITY OF MIRAMAR, FLORIDA,

Respondent,

and

UNIVISION RADIO FLORIDA, LLC,

AND LENNAR HOMES, LLC,

Intervenors.

_____ __________________________/

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case in

Miramar, Florida, on March 5 through 7, 2019, before Suzanne

Van Wyk, an Administrative Law Judge assigned by the Division of

A dministrative Hearings.

APPEARANCES

For Petitioners: Ralf Gunars Brookes, Esquire

Ralf Brookes Esquire

1217 East Cape Coral Parkway, Suite 107

Cape Coral, Florida 33904

For Respondent: John J. Quick, Esquire

Weiss Serota Helfman Pa storiza Cole

& Boniske, P.L.

Suite 700

2525 Ponce de Leon Boulevard

Coral Gables, Florida 33134

For Intervenor Univision Radio, LLC:

Joshua D. Miron, Esquire

Shutts and Bowen, LLP

Suite 2100

200 East Broward Boulevard

Fort Laud erdale, Florida 33301

For Intervenor Lennar Homes, LLC :

Glenn N. Smith, Esquire

Elizabeth Somerstein Adler, Esquire

Greenspoon Marder P.A.

Suite 1800

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the City of Miramar Comprehensive Plan Amendment ,

adopted by Ordinance No. 1901 on October 17, 2018, is Ðin

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

Florida Statutes (2018). 1/

PRELIMINARY STATEMENT

On October 17, 2018, the City of Miramar adopted Ordinance

No. 1901, approving application 1502812 to amend the CityÓs

Comprehensive Plan (the ÐPlan AmendmentÑ), which changes the

future land use designation of a 120 - acre parcel from ÐRural

ResidentialÑ to ÐI rregular (3.21) Residential.Ñ

On November 16, 2018, Petitioner filed a Petition with the

Division of Administrative Hearings (ÐDivisionÑ) challenging the

Plan Amendme nt pursuant to section 163.3184 . 2/ Petitioners

allege that the Plan Amendment renders the Plan internally

inconsistent, contrary to secti on 163.3177(2) .

Following an extension of time for the parties to respond

to the Initial Order, the case was scheduled for final hearing

February 4 through 7, 2019. Univision Radio Florida, LLC

(ÐUnivisionÑ) , and Lennar Homes, LLC (ÐLennarÑ) , were granted

Intervenor status on December 4 and 11, 2018, respectively.

On January 24, 2019, the undersigned granted the partiesÓ

Agreed Motion for Continuance of Final Hearing, and the case was

rescheduled for final hearing March 5 through 8, 2019. The

hearing commenced in Miramar, Florida, as rescheduled.

The partiesÓ Joint Exhibits J1 through J74, J76 through

J80, J87 , and J88 were admitted in evidence.

Petitioners testified on their own behalf and presented the

te stimony of Daryl Max Forgey, accepted as an expert in

comprehensive planning and land use; and Jacqueline Lee Cook,

accepted as an expert in wetlands. PetitionersÓ Exhibits P84,

P94, and P95 were admitted in evidence.

Respondent, City of Miramar (ÐMiramar Ñ or Ðthe CityÑ), and

Intervenors , Univision and Lennar, jointly presented the

testimony of Eric Silva, accepted as an expert in comprehensive

planning and land use; Charles Gauthier, accepted as an expert

in comprehensive planning and implementation of th e Community

Planning Act; John Goldasich, accepted as an expert in biology

and wetlands evaluation); Dennis Mele, Esquire; and Barbara

Blake Boy. The City introduced Exhibit 96, which was admitted

in evidence.

Following the final hearing, the parties join tly filed a

Motion for Extension of Time to Submit Proposed Recommended

Orders 30 days after the transcript was filed with the Division,

which was granted. A three - volume Transcript of the final

hearing was filed with the Division on April 10, 2019. On

M ay 7, 2019, the undersigned granted the partiesÓ second Joint

Motion for Extension of Time to Submit Proposed Recommended

Orders, establishing May 31, 2019, as the proposed recommended

order due date. 3/ Petitioner s , and Respondent and Intervenors

jointly, timely filed Proposed Recommended Orders, which have

been carefully considered by the undersigned in the preparation

of this Recommended Order.

FINDING S OF FACT

The Parties and Standing

1. Petitioners own and resi de on property located at

17428 Southwest 36th Street in Miramar, Florida. Petitioners

submitted oral and written comments, recommendations, or

objections to the City during the period of time between, and

including appearances at, the transmittal hearing and the

adoption of the Plan Amendment.

2. PetitionersÓ house is approximately 430 feet north of

the property subject to the Plan Amendment (the ÐSubject

PropertyÑ). PetitionersÓ property is separated from the Subject

Property by a residential canal, approximately 100 feet of

wetland or marsh area, and a City street right - of - way. The

residential canal is owned and controlled by PetitionersÓ

homeownerÓs association.

3. From the backyard of their home, Petitioners enjoy

observing and photographing birds and wildlife that utilize the

canal, inc luding birds that can be seen from PetitionersÓ

property in the trees on the Subject Property and flying between

the properties.

4. The City is a Florida municipal corporation with the

duty and authority to adopt and amend a comprehensive plan,

pursuant t o section 163.3167.

5. Univision is a Delaware limited liability company

authorized to transact business in Florida. Its principal

business address is 500 Frank W est Burr Boulevard , Teaneck, New

Jersey 07666. Univision is the owner of the Subject Proper ty.

6. Lennar is a Florida limited liability company , whose

principal business address is 700 Northwest 107 th Av enue,

Suite 400 , Miami, Florida 33172. Lennar is under contract to

purchase the Subject Property .

Existing Conditions

7. The Subject Prope rty is approximately 120 gross acres

of mostly undeveloped property. The Subject Property contains

102.2 acres of wetlands and 15.5 acres of uplands.

8. At least 80 percent of the wetlands are covered by

Melaleuca trees, which is an invasive species. M elaleuca is

listed by federal and state agencies as a noxious weed, making

it illegal to possess, sell, cultivate, or transport in Florida.

9. The uplands on the Subject Property are limited to

areas previously developed with radio transmission towers, a

control room, and filled roadways connecting the on - site

improvements. The improvements, with the exception of the fill

roads, were removed in approximately 2017.

10. The radio towers were secured by guy wires anchored by

concrete blocks. The areas of the Subject Property underneath

the guy wires were maintained to prevent vegetation from growing

up into the guy wires. The areas where the concrete supports

have been removed are wet, and the areas that were beneath the

former guy wires contain fewer M el aleuca and some native

vegetation, like sawgrass and ferns. However, the upland areas

are also currently growing exotic grasses and Australian Pine,

which are also invasive species.

11. The Subject Property is currently designated on the

CityÓs Future Land Use Map (ÐFLUMÑ) as ÐRural.Ñ

12. Pursuant to the CityÓs Comprehensive Plan, the Rural

land use category allows the following types of development:

(1) residential development at a density of one dwelling un it

per 2.5 gross acres (1du/2.5 acres); (2 ) agricultural and

related uses, including crops, groves, horse and cattle ranches,

private game preserves, fish breeding areas, and tree and plant

nurseries; (3) parks; (4) police and fire stations, libraries,

and civic centers; (5) special residential fa cilities, such as

group homes; and (6) public utilities, including wastewater

pumping stations, electrical utility substations, and

telecommunications transmission facilities.

The Plan Amendment

13. The Plan Amendment changes the FLUM designation of the

Subject Property from Rural to ÐIrregular (3.21) Residential,Ñ

which allows residential development at a density of

3.21du/acre. 4/

14. Lennar proposes to develop 385 units on the property --

the maximum allowable under the Plan Amendment.

15. Under Lenna rÓs development proposal, all of the on -

site wetlands will be impacted.

The Plan Amendment Process

16. Broward County municipalities have a unique plan

amendment review process. Each amendment to a municipal

comprehensive plan must be consistent with, a nd incorporated

into, the Broward County Land Use Plan (ÐBCLUPÑ). This Plan

Amendment, as with all other municipal amendments, was reviewed

and approved through both the CountyÓs and CityÓs approval

process.

17. The Board of County Commissioners held a n adoption

public hearing on March 20, 2018, and approved Ordinance

No. 2018 - 12, amending the BCLUP to change the County FLUM

designation of the Subject Property from Agriculture to

Irregular (3.21) Residential.

18. On October 17, 2018, the City Commissio n held a duly

advertised second public hearing, wherein the City voted to

adopt the Plan Amendment.

Lennar Permitting

19. Lennar pursued permitting of its proposed development

of the Subject Property during the Plan Amendment review

process.

20. On or a bout September 11, 2018, the Broward County

Environmental Protection and Growth Management Department

(ÐEPGMDÑ) issued an environmental resource license (ÐERLÑ) for

the proposed development. The ERL is based on LennarÓs site

plan for the site, not the Pla n Amendment. The ERL recognizes

that the impacts on the Subject Property wetlands are

unavoidable and determines that off - site mitigation is required

to address any impacts on those wetlands.

21. On or about September 11, 2018, the South Florida

Water Ma nagement District issued an environmental resource

permit (ÐERPÑ) for the proposed development. The ERP is based

on LennarÓs site plan and other required documents, not the Plan

Amendment. The ERP provides that off - site mitigation is

required to address any impacts on the Subject Property

wetlands.

22. On or about December 14, 2018, the Army Corps of

Engineers (ÐACOEÑ) issued a permit for the development proposed,

based upon LennarÓs site plan and other required documents. The

ACOE permit provides that off - site mitigation is required to

address any impacts on the Subject Property wetlands.

PetitionersÓ Challenge

23. Section 163.3177(2) directs that Ðthe several elements

of the comprehensive plan shall be consistent,Ñ in furtherance

of the major objecti ve of the planning process to coordinate the

elements of the local comprehensive plan.

24. Petitioners allege the Plan Amendment is not Ðin

complianceÑ because it creates internal inc onsistencies with the

existing Comprehensive P lan. PetitionersÓ challen ge r ests on

four provisions of the Comprehensive P lan: Future Land Use

Element (ÐFLUEÑ) Goal (unnumbered), FLUE Policies 3.5 and 6.10,

and Conservation Element Policy 7.3 (ÐCE Policy 7.3Ñ).

FLUE Goal (unnumbered)

25. The CityÓs Comprehensive P lan contai ns one overarching

goal for the FLUE, which reads as follows:

Maintain a long - range future land use

pattern which promotes orderly and well -

managed growth and development of the

community, producing quality neighborhoods,

enhancing the cityÓs aesthetic app eal,

conserving the natural environment and open

space , supporting a vibrant economic tax

base, and minimizing risks to the publicÓs

health, safety, and welfare. (emphasis

added).

26. The g oal is the singular goal for the overall FLUE,

which includes 12 different objectives and many more policies

for each objective. The purpose of the g oal is to set the

initial framework; it is a very broad statement setting the

direction for the CityÓs long - term goals, but does not provide

any measurable standards or s pecifics regarding implementation.

27. PetitionersÓ challenge focuses on the underlined

phrase, and argues that the Plan Amendment is internally

inconsistent with the goalÓs direction to Ðconserv[e] the

natural environment and open space.Ñ

28. The Subjec t Property is not currently designated as

either ÐRecreation and Open SpaceÑ or ÐConservation.Ñ The

Subject Property is private property that, by virtue of its land

use designation, has always been intended for development as one

of the uses allowable wit hin the Rural land use category.

29. Further, Eric Silva, the Director of the CityÓs

Community and Economic Development Department, testified that

the g oalÓs direction of Ðconserving the natural environment and

open spaceÑ relates only to those areas that have been

designated by the City, or another agency, for protection.

30. The Recreation and Open Space Element (ÐROS ElementÑ)

sets forth the specific objectives and policies to accomplish

the CityÓs goal to Ð[p]rovide adequate and accessible parks and

f acilities to meet the recreation needs of all current and

future Miramar residents.Ñ

31. In the ROS Element, the City has established a level

of service standard of four acres of park and open space for

each 1,000 City residents.

32. Petitioners introduc ed no evidence that the Plan

Amendment would diminish the amount of land designated for open

space in the City, or otherwise impede the CityÓs progress

toward the adopted standard.

33. To the contrary, Mr. Silva testified that the City has

over 300 extra acres of park space and that this Plan Amendment

will not impact the CityÓs adopted level of service for parks

and open space.

34. Likewise, Petitioners introduced no evidence to

support a finding that the Plan Amendment would reduce the

amount of land de signated for ÐConservationÑ in the City.

Rather, Petitioners argue that the Subject Property should be

converted to a nature preserve, or otherwise placed in

conservation use.

35. The issue in this case is not whether the City should

designate the Subjec t Property for a different use, but whether

the designation the City proposes is consistent with the

comprehensive plan.

36. Petitioners did not prove the Plan Amendment is

inconsistent with the FLUE Goal.

FLUE Policy 3.5

37. Petitioners next contend th e Plan Amendment is

inconsistent with FLUE Policy 3.5, which directs the City to

Ð[c]onsider the cumulative and long - term effects of decisions

regarding amendments to the Land Use Plan Map and revisions to

the Future Land Use Element.Ñ

38. PetitionersÓ c oncerns here are similar to those with

the FLUE Goal -- the Plan Amendment will reduce green space and

open space, which could be preserved under the existing Rural

designation.

39. PetitionersÓ expert witness conceded that it is

impossible to determine th at the City did not consider the

cumulative and long - term effects of the Plan Amendment.

40. Moreover, the City introduced abundant evidence that

it considered, during the lengthy Plan A mendment process, all

impacts of the Plan Amendment on the CityÓs re sources and

infrastructure.

41. Petitioners did not prove the Plan Amendment is

inconsistent with FLUE Policy 3.5.

FLUE Policy 6.10

42. Next, Petitioners argue the Plan Amendment is

inconsistent with FLUE Policy 6.10, which states, ÐThe City

shall cons ider the impacts of land use plan amendments on

wetland and native upland resources, and minimize those impacts

to the maximum extent practicable.Ñ

43. Here, Petitioners focus on the density allowed under

the Plan Amendment. Petitioners argue that the P lan Amendment

is inconsistent with this policy because it allows development

of 385 units, which will maximize, rather than minimize, impacts

to the on - site wetlands.

44. Petitioners argue that the residential density allowed

under the existing Rural des ignation would yield development of

only 48 units, which would provide for conservation of at least

some of the wetlands on site, thereby minimizing the wetland

impact.

45. PetitionersÓ argument ignores the fact that the Rural

designation allows other ty pes of non - residential develop ment

that may be as intense as r esidential, such as a civic center or

fire station, or uses that require fewer improvements, but have

a destructive effect on wetlands, such as horse or cattle

ranches.

46. The issue of whethe r the Plan Amendment minimizes

impacts to wetlands is not determined by the mathematical

function 48 units < 385="" units.="" instead,="" the="">

hinges on the meaning of Ðmin imizing impactsÑ in the CityÓs

Comprehensive P lan.

47. Under the CityÓs C ompr ehensive P lan, impact of

development on wetlands must be considered in partnership with

the County, and is dependent upon the value assigned to those

wetlands, pursuant to the wetlands benefit index (ÐWBIÑ), as set

forth in the Conservation Element.

48. Based on the following relevant analysis, the

Petitioners did not prove the Plan Amendment is inconsistent

with FLUE Policy 6.10.

CE Policy 7.3

49. Finally, Petitioners challenge the Plan Amendment as

internally inconsistent with CE Policy 7.3, which read s as

follows:

The City shall distribute land uses in a

manner that avoids or minimizes to the

greatest degree practicable, the effect and

impact on wetlands in coordination with

Broward County. Those land uses identified

below as being incompatible with t he

protection and conservation of wetlands and

wetland functions shall be directed away

from wetlands, or when compatible land uses

are allowed to occur, shall be mitigated or

enhanced, or both, to compensate for loss of

wetland functions in accordance wit h Broward

County Code of Ordinances, Chapter 27,

Article XI, Aquatic and Wetland Resource

Protection.

Compatibility of Land Uses

Relative to the Wetland Benefit Index (WBI)

Wetland Benefit Land Use Compatibility

Index

1. Wetlands with a 1. There is a rebuttable

WBI value great er presumption that all land

than or equal to uses except for

0.80 conservation uses are

incompatible .

2. Wetlands with a 2. All land uses are

WBI value less than compatible, provided that

0.80 the wetland impact

compensation requirements

of Chapter 27, Article XI,

are satisfied.

Source: Broward County Code of Ordinances,

Chapter 27, Article XI, Aquatic and Wetland

Resource Protection

50. CE Policy 7.3 is more specific than FLUE Policy 6.10

regarding the CityÓs direction t o minimize impacts of

development on wetlands.

51. PetitionersÓ planning expert opined that the Plan

Amendment is inconsistent with this policy because it does not

Ðavoid or minimizeÑ the impact of wetlands at all, much less Ðto

the greatest degree practi cable,Ñ as directed by the policy.

52. PetitionersÓ expert based his entire argument solely

on the first sentence of the policy. PetitionersÓ planning

expert explained, incredulously, that, in his opinion, the rest

of the policy ÐdoesnÓt matter.Ñ 5/

53. The opinion of PetitionersÓ expert was not persuasive.

The Policy must be read in its entirety; and, when read as such,

the Plan Amendment is consistent with the policy.

54. The first sentence of the policy is precatory and

direction - setting. It stat es the CityÓs intent to distribute

land uses in a way that minimizes wetland impacts. The

following sentences describe in more detail how that direction

will be accomplished, and specifically reference the

incorporated chart.

55. The policy provides tha t land uses identified in the

chart as incompatible with wetland protection Ðshall be directed

away from wetlands.Ñ By contrast, the policy provides that for

land uses identified as compatible, wetland impacts Ðshall be

mitigated . . . in accordance with the Broward County Code of

Ordinances, Chapter 27.Ñ

56. It is undisputed that the wetlands on the Subject

Property have a WBI value of less than .80. Pursuant to the

chart, then, all uses of the Subject Property are compatible

with the wetlands on - site, as long as the wetland impact

compensation requirements of the Broward County Code are

followed.

57. The policy clearly provides that no development,

regardless of density or intensity, must be directed away from

the wetlands on the Subject Property.

5 8. If the WBI value of the on - site wetlands was .80 or

higher, pursuant to this policy, PetitionersÓ position that the

Subject Property should be placed in Conservation use would be

presumed correct, although rebuttable.

59. To that end, Petitioners int roduced expert opinion

testimony as to the quality of the wetland areas on - site which

were previously maintained by the property owner -- namely the

areas under the guy wires. In the opinion of PetitionersÓ

wetlands expert, the on - site wetlands could be res tored to

higher quality if the M elaleuca trees were removed and the

stumps sprayed to prevent regrowth.

60. PetitionersÓ argument is irrelevant to a determination

of whether the Plan Amendment is consistent with this policy.

Having established that the WBI value of the on - site wetlands is

below .80, the issue of whether the on - site wetlands could be

restored is irrelevant.

61. Chapter 27 of the Broward County Code governs

application for, and issuance of, an ERL for wetland alteration.

62. On Septem ber 11, 2018, Broward County issued an ERL to

Lennar for its proposed development of the Subject Property.

63. Petitioner introduced no evidence to support a finding

that the provisions of Chapter 27 were not satisfied by the

County in issuing the ERL.

6 4. Petitioners did not prove the Plan Amendment is

inconsistent with CE Policy 7.3.

CONCLUSIONS OF LAW

65. The Division has jurisdiction over the subject matter

and parties hereto pursuant to sections 120.569, 120.57(1), and

163. 3184(5), Florida Statutes .

66. To have standing to challenge or support a plan

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

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

the meaning of the statute.

67. ÐIn complianceÑ means Ðconsistent with the

requirements of sections 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 o f

chapter 369, where applicable.Ñ £ 163.3184(1)(b), Fla. Stat.

68. The CityÓs determination that the Plan Amendment is

Ðin complianceÑ is presumed correct and must be sustained if the

determination of compliance is Ðfairly debatable.Ñ See

§ 163.3184(5) (c), Fla. Stat.

69. The term Ðfairly debatableÑ is not defined in

chapter 163, but the Florida Supreme Court held in Martin County

v. Yusem , 690 So. 2d 1288 (Fla. 1997), that Ð[t]he fairly

debatable standard is a highly deferential standard requiring

appr oval of a planning action if reasonable persons could differ

as to its propriety.Ñ Id. at 1295.

70. The standard of proof to establish a finding of fact

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

Stat.

Internal Inconsistencies

71. Pe titioner did not prove beyond fair debate that the

Plan Amendment created any internal inconsistencies wi th the

cited provisions of the c omprehensive p lan.

72. In the context of the Community Planning Act, goals

are statements of long - term vision or aspir ational outcomes and

are typically not measurable in and of themselves. Goals are to

be implemented by measurable objectives and policies to carry

out the general plan goals. See § 163.3177(6)(a)1., Fla. Stat.

73. Goals must be construed within the cont ext of their

implementing objectives and policies. See Martin Cnty. Land Co.

v. Martin Cnty. , Case No. 15 - 0300 (Fla. DOAH Sept. 1, 2015; Fla.

DEO Dec. 30, 2015) ((1) where objectives and policies

implementing the subject goal directly address areas in nee d of

redevelopment, and the challenged plan amendment was not related

to redevelopment areas, PetitionerÓs challenge of internal

inconsistency with the goal fails; and (2) where objectives and

policies implementing the subject goal related to building

stan dards and renewable energy resources, and the plan amendment

did not relate to building standards, PetitionerÓs challenge of

inconsistency with the goal fails.) . Plan goals should not be

taken out of context. See Id.

74. The CityÓs stand - alone FLUE Goal is neither specific

nor measurable, and must be construed in the context of its

implementing objectives and policies.

75. The GoalÓs broad direction to Ðconserve[e] the natural

environment and open space,Ñ is refined in Policies 3.1 and 6.10

(as well as numerous others), which require consideration of

long - term and cumulative impacts of plan amendments, and

minimization of those impacts on wetland resources.

76. This direction is further refined by the Conservation

Element, which is more specific regardi ng conservation issues

than the FLUE. When construing legislative documents, the more

specific provision controls over a general one. KatherineÓs Bay

v. Fagan , 52 So. 3d 19 (Fla. 1st DCA 2010).

77. Where the FLUE policies direct the City to Ðconsider

and minimize impacts,Ñ CE Policy 7.3 sets forth the specific

standard (the WBI) which governs the required Ðminimization.Ñ

78. In this case, CE Policy 7.3 governs the CityÓs

consideration and minimization of impacts to wetlands on the

Subject Property. That policy directly incorporates provisions

of the CountyÓs code.

79. Petitioners tried to prove that a different approach

(i.e., allowing lower density development to impact fewer on -

site wetlands) was required to accomplish the Comprehensive P lan

goal of Ðconserving the natural environment and open space,Ñ and

policies requiring consideration and minimization of impacts to

wetlands.

80. PetitionersÓ attempt to prove that a different

approach was required was misplaced. A compliance determination

is n ot a determination of whether a comprehensive plan amendment

goes far enough to achieve its purposes. See Bracker v. Cemex

Const. Materials Fla., LLC , Case No. 18 - 3597 (Fla. DOAH May 1,

2019 ; Fla. DEO May 23, 2019 )(plan amendment Ðin complianceÑ with

a 10 0 - foot buffer required between mining and residential uses

even though a larger buffer could be adopted); Manasota - 88 ,

Inc. v. Dep't of Cmty. Aff. , Case No. 02 - 3897 (Fla. DOAH May 14,

2004; Fla. DCA Aug. 13, 2004)(plan amendment Ðin complianceÑ

although t he local government designated wildlife greenway could

have been larger to accommodate more species); McSherry v.

Alachua Cnty. , Case No. 02 - 2676 (Fla. DOAH Oct. 18, 2004; Fla.

DCA May 22, 2005), aff'd , 903 So. 2d 194 (Fla. 1st DCA

2005)(while the County would have been better served to refine

its definition of Ðstrategic ecosystemÑ to include standards set

forth elsewhere in the plan, the failure to do so does not

invalidate the definition under the Ðfairly debatableÑ

standard). As well stated by Adminis trative Law Judge Stevenson

in Geraci v. Department of Community Affairs , Case No. 95 - 0259

(Fla. DOAH Oct. 14, 1998; Fla. DCA Jan. 13, 1999), aff'd , 754

So. 2d 35 (Fla. 1st DCA 1999), ÐPetitioner's burden was not to

show that [Petitioner's preferred land u se classification] was

better, but that [the assigned land use classification] was non -

compliant to the exclusion of fair debate.Ñ

81. Finally, PetitionersÓ challenge of inconsistency with

CE Policy 7.3 fails because PetitionersÓ expert based his

opinion solely on the first sentence of the policy. It is

axiomatic that legislative provisions must be read in pari

materia . See Cone v. Dep Ó t of Health , 886 So. 2d 1007 (Fla. 1st

DCA 2004). This principal applies as well to local government

comprehensive plan s. See Fagan , 52 So. 3d at 21; Conklin v.

Putnam Cnty. , Case No. 09 - 3597GM (Fla. DOAH Dec. 24, 2009 )

(settled after issuance of Recommended Order); Hamilton v. Dep Ó t

of Cmty . Aff. , Case No. 95 - 5051GM (Fla. DOAH Oct. 17, 1996; Fla.

DCA Nov. 14, 1996).

82. When construed together, the entirety of CE Policy 7.3

does not support PetitionersÓ contention that the Plan Amendment

fails to minimize impacts to the on - site wetlands. On the

contra ry, when read as a whole, this p olicy does not direct any

development of the Subject Property away from the on - site

wetlands.

Conclusion

83. Petitioners did not prove beyond fair debate that the

Plan Amendment is inconsistent with secti on 163.3177(2) .

84. It is at least fairly debatable that the Plan

Amendment is Ðin comp liance,Ñ as that term is defin ed in section

163.3184(1)(a) .

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 Plan

Amendment adopted by City of Miramar Ordinance 1901, on

O ctober 7, 2018, is Ðin compliance,Ñ as that term is defined by

section 163.3184(1)(b), Florida Statutes.

DONE AND ENTERED this 26th day of June , 2019 , 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 26th day of June , 2019 .

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 2018 version, which was in effect

when the Plan Amendment was adopted.

2/ Durin g discovery, Petitioner s amended the Petition to limit

the issues in dispute. Petitioner s filed a Corrected Petition,

a Second Corrected Petition, a Third Corrected Petition, and

Fourth Amended Petition on January 28, February 4, February 21,

and March 1, 2019, respectively.

3/ Pursuant to Florida Administrative Code Rule 28 - 106.216(2),

the parties waived the requirement that this Recommended Order

be issued within 30 days after the date on which the Transcript

was filed.

4/ The Plan Amendment does not include any changes to the text

of the Comprehensi ve Plan. However, Ordinance 19 01 provides,

ÐThis Ordinance is approved subject to the following site

specific policies and conditions of approval as applicable in

the Future Land Use Element,Ñ and incorp orates a Declaration of

Restrictive Covenants for affordable housing. Neither the Ðsite

specificÑ conditions nor the declaration of covenants is

relevant to the issues raised by Petitioners.

5/ T r. 3, 145:23.

COPIES FURNISHED:

Ralf Gunars Brookes, Esq uire

Ralf Brookes Attorney

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904

(eServed)

Jamie Alan Cole, Esquire

Weiss, Serota, Helfman, Partoriza,

Cole and Boniske, P.L.

Suite 1900

200 East Broward Boulevard

Fort Lauderdale, Florida 333 01

Laura K. Wendell, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

Suite 700

2525 Ponce de Leon Boulevard

Coral Gables, Florida 33134

(eServed)

Joshua D. Miron, Esquire

Shutts and Bowen, LLP

Suite 2100

200 East Broward Boulevard

Fort Lau derdale, Florida 33301

(eServed)

Glenn N. Smith, Esquire

Greenspoon Marder, P.A.

Suite 1800

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Elizabeth Somerstein Adler, Esquire

Greenspoon Marder P.A.

Suite 1800

200 East Broward Boule vard

Fort Lauderdale, Florida 33301

(eServed)

John J. Quick, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

Suite 700

2525 Ponce de Leon Boulevard

Coral Gables, Florida 33134

(eServed)

William Chorba, General Counsel

Department of Econom ic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 3 2399 - 4128

(eServed)

Ken Lawson, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eSer ved)

Stephanie Webster, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wi thin

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.