20-002857GM Mary K. Waters vs. Miami-Dade County, A Political Subdivision Of The State Of Florida; And Krome Agronomics, Llc Status: Closed Recommended Order on Friday, April 16, 2021.

Summary: Petitioner, who introduced no expert witness testimony, failed to prove the subject plan amendment is not "in compliance."

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ARY K. W ATERS ,

Petitioner ,

vs. Case No. 20 - 2857GM

M IAMI - D ADE C OUNTY , A P OLITICAL

S UBDIVISION OF T HE S TATE OF F LORIDA ;

A ND K ROME A GRONOMICS , LLC ,

Respondents .

/

R ECOMMENDED O RDER

A duly noticed final hearing was held in this case on February 18 and 1 9,

2021, by Zoom conference before the Honorable Suzanne Van Wyk, an

Administrative Law Judge assigned by the Division of Administrative

Hearings.

A PPEARANCES

For Petitioner : David Winker , Esquire

David J. Winker, P.A.

2222 S outhwest 17th Street

Miami, Florida 33145

For Respondent Miami - Dade County:

James Edwin Kirtley, Jr. , Esquire

Christopher J. Wahl , Esquire

Miami - Dade County AttorneyÔs Office

111 N orthwest 1st Street, Suite 2810

Miami, Florida 33128

For Respondent Krome Agronomics , LLC:

Mark E. Grafton , Esquire

Alannah Shubrick . Esquire

Shubin & Bass, P.A.

46 Southwest 1st Street , Third Floor

Mia mi, Florida 33133

S TATEMENT OF T HE I SSUE

Whether Miami - Dade CountyÔs (Ñthe CountyÔsÒ) comprehensive plan

amendment , adopted by Ordinance No. 20 - 47 on May 20, 2020, is Ñin

compliance,Ò as that term is defined in section 163.3184, Florida Statutes. 1

P REL IMINARY S TATEMENT

On May 20, 2020, the County adopted Ordinance No. 20 - 47, amend ing the

CountyÔs Comprehensive Development Master Plan (ÑC omprehensive Plan Ò)

to: (1) redesignate a parcel of land from ÑAgricultureÒ to ÑBusiness and

OfficeÒ; and (2) add a De claration of Restrictions for the parcel in the

Restrictions Table in Appendix A of the Comprehensive Plan (the ÑPlan

AmendmentÒ).

On June 19, 2020, Petitioner , Mary K. Waters, filed a Petition for Formal

Administrative Hearing (ÑPetitionÒ) with the Divi sion of Administrative

Hearings (ÑDivisionÒ), which was assigned to the undersigned, and the final

hearing was scheduled for October 27 through 29, 2020. Following a hearing

on the CountyÔs Motion to Dismiss, the undersigned dismissed the Petition,

with le ave to amend. Petitioner filed an Amended Petition on August 21,

2020.

1 The Notice of Hearing identified the ordinance as Ñordinance 192501Ò based on an error in

the Amended Petition, but the parties stipulated, and the record reflects, that the ordinance

at issue is Ordinance No. 20 - 47.

The parties filed a Joint Motion to Continue Final Hearing on October 2,

2020, which was granted, and the final hearing was rescheduled for

December 16 through 18, 2020. The final he aring was continued again to

February 18 and 19, 2021, following hearing on a discovery dispute.

The final hearing commenced as rescheduled by Zoom conference on

February 18 and 19, 2021 . At the final hearing, Joint Exhibits 1 through 5 ,

were admitted in evidence.

Petitioner introduced Exhibit 1 , County planning staff Ôs initial report and

recommendations suggesting denial of the Application (the ÑInitial Report

and RecommendationsÒ). Petitioner presented the testimony of the following

County employees a s fact witnesses: Jerry Bell, Rosa Davis, Carlos Heredia,

Noel Stillings, Charles LaPradd, Lee Hefty, and Kimberly Brown. These

witnessesÔ testimony was subject to the Protective Order entered on

February 8, 2021, which provided that no County employees co uld testify, or

be compelled to testify, as expert witnesses in this case. 2

The County introduced Exhibits 1 through 3 , which were admitted in

evidence. The County presented the testimony of Alex David, who was

accepted as an expert in comprehensive plann ing and land use planning.

Krome Agronomics, LLC (ÑKromeÒ), introduced Exhibits 1 through 3 ,

which were admitted in evidence. Krome presented the testimony of its

corporate representative, Mayra Perera ; and Kenneth Metcalf, who was

accepted as an expert i n comprehensive planning and land use planning.

2 On the basis of the Protective Order, the County also objected to PetitionerÔs reliance on the

expert opinions of County employees set forth in Petitioner Ôs Exhibit 1 . Petitioner

represented that she was not seeking to elicit expert opinions, but rather historical facts.

Based on the Protective Order, the CountyÔs objection, and PetitionerÔs representations, the

opinions set forth in Petitioner Ôs Exhibit 1 we re admitted into evidence insofar as the

opinions contained therein constitute historical facts. The opinions were not admitted as

expert testimony, and the undersigned has not relied up on staffÔs recommendations in the

report as expert testimony supportiv e of PetitionerÔs case.

The proceedings were recorded and a Transcript was filed with the

Division on March 17, 2021. The parties timely file d P roposed R ecommended

O rders , which have been considered by the undersigned in preparatio n of this

Recommended Order.

Unless otherwise noted, all citations herein to the Florida Statutes are to

the 2019 edition, which was in effect when the Plan Amendment was

adopted.

F INDINGS OF F ACT

The Parties

1. Petitioner resides , and owns property , in the County. Petitioner made

oral or written comments and objections to the County regarding the Plan

Amendment during the time period between the CountyÔs transmittal and

adoption of the Plan Amendment.

2. The County is a political subdivision of the Stat e of Florida , with the

duty and authority to adopt and amend its Comprehensive Plan . See

§ 163.3167(1), Fla. Stat.

3. Krome is a limited liability company, existing under the laws of the

State of Florida , with its principal place of business in the State o f Florida.

Krome owns the property subject to the Plan Amendment, as well as other

property within the area affected by the Plan Amendment, and was the

applicant for the Plan Amendment.

The Subject Property and Surrounding Uses

4 . The Subject Property is 5.97 gross acres (approximately 4.6 net acres) of

vacant land located outside of the Urban Development Boundary on the

southwest corner of SW 177 Avenue (Krome Avenue) and SW 136 Street . It is

the northeast corner of a larger 48.33 - acre parcel owned by Kro me (the

ÑParent TractÒ).

5 . Adjacent to the north of the Parent Tract, across SW 136 Street, is a

solar farm operated by Florida Power and Light Company (FPL). To the east,

across Krome Avenue, and to the south, including the remaining portion of

the Par ent Tract, are agricultural lands used for row crops.

6 . West and south of the Parent Tract (including the Subject Property),

the land is developed predominantly with five - acre rural estates, interspersed

with small residential farms and agricultural site s ranging between 10 and

30 acres in size .

7 . The Property is located within an approximately 11 - mile stretch of

Krome Avenue where there are presently no gas service stations. The nearest

gas service station to the south of the Property is located approx imately three

miles away . The nearest gas service station to the north of the Property is

located approximately eight miles away .

The Plan Amendment

8 . The Plan Amendment changes the Future Land Use (ÑFLUÒ)

designation of the Subject Property from the ÑAg riculturalÒ to the ÑBusiness

and OfficeÒ land use category.

9 . The Business and Office category allows for development of a wide

range of sales and services uses, including retail, wholesale, personal and

professional services, call centers, commercial an d professional offices, hotels,

motels, hospitals, medical buildings, nursing homes, entertainment and

cultural facilities, amusements , and commercial recreation establishments.

The category also allows light industrial development, telecommunication

facil ities, and residential uses (stand alone or mixed with commercial, light

industrial, office , and hotels).

1 0 . K rome sought the Plan Amendment for the ultimate purpose of

operating a gas service station and other food and retail uses compatible

with, and su pportive of, the surrounding agricultural and residential

community.

1 1 . In recognition that the ÑBusiness and OfficeÒ land use designation

permits a wide variety of uses, Krome proffered to restrict the permitted uses

on the Property by submitting a Dec laration of Restrictions to be recorded as

a covenant running with the land.

County Consideration of Plan Amendment

1 2 . In October 2019, County planning staff issued its Initial Report and

Recommendations , suggesting denial of the proposed Plan Amendment .

1 3 . The CountyÔs Community Councils are tasked with providing

recommendations on proposed amendments to the C omprehensive P lan.

1 4 . The West Kendall Community Council conducted a public hearing on

the proposed Plan Amendment on December 16, 2019, at whic h members of

the public commented on the proposal . A representative of Krome made a

presentation at the public hearing and submitted presentation exhibits that

included: (1) a proposed Declaration of Restrictions ; (2) a County

memorandum relating to a sepa rate application to allow the establishment of

a gas station at SW 177 Avenue and SW 200 Street in Miami - Dade County ;

(3) a letter from the Dade County Farm Bureau stating that it had no

objection to the Application ; and (4) a Petition of Support listing

1 05 members of the community that elected to express support and

recommend approval of the proposal .

1 5 . At the conclusion of the December 16, 2019 hearing, the West Kendall

Community Council voted to recommend that the proposed Plan Amendment

be adopted w ith acceptance of the proffered Declaration of Restrictions.

1 6 . After previously deferring the matter at a hearing on October 29,

2019, the Miami - Dade County Board of County Commissioners (the ÑBCCÒ)

voted on December 17, 2019 , to adopt the Plan Amendmen t on first reading .

1 7 . The CountyÔs Planning Advisory Board ( Ñ PAB Ò ) serves as the Local

Planning Agency to review any matters referred to it by the BCC, pursuant

to section 2 - 108 of the Miami - Dade County Code.

1 8 . On January 8, 2020, the PAB, acting as the Local Planning Agency,

conducted a public hearing to address the proposal .

19 . Near the conclusion of the hearing, the chairman of the PAB proposed

an amendment to the proffered Declaration of Restrictions such that the

maximum gross square feet of e nclosed, under - roof construction on the

Property, excluding fueling islands, would be reduced from 10,000 square feet

to 6,000 square feet. KromeÔs representative agreed to the proposed

amendment.

2 0 . The PAB then voted to recommend that the BCC adopt the Plan

Amendment with acceptance of the revised Declaration of Restrictions.

2 1 . After previously deferring second reading of the ordinance on

January 23, 2020, the BCC voted nine - to - three to adopt Ordinance No. 20 - 47

on second reading at a public hearing on May 20, 2020. As part of its

adoption of the Plan Amendment, the BCC accepted KromeÔs proffered

Declaration of Restrictions containing the provisions outlined below.

2 2 . The adopted Declaration of Restrictions states that it is a covenant

running with the land for a period of 30 years, and thereafter automatically

renews for 10 - year periods.

2 3 . The Declaration of Restrictions expressly allows for Ñ[a]ll uses

permitted under Article XXXIII, Section 33 - 279, Uses Permitted, AU,

Agricultural District, of the Miami - Dade County CodeÒ along with an

ÑAutomobile gas station with mini mart/convenience storeÒ with a maximum

of 15 vehicle fueling positions.

2 4 . The Declaration of Restrictions further provides that Ñ[m]echanical

repairs, oil or transmission change s, tire repair or installation, maintenance,

automobile or truck washingÒ are prohibited uses, and it limits the maximum

gross square feet of enclosed, under - roof construction to 6,000 square feet.

PetitionerÔs Challenge s

25 . In the Amended Petition, Peti tioner alleges the Plan Amendment is

not Ñin compliance,Ò specifically contending that it: (1) creates internal

inconsistencies with certain existing Comprehensive Plan policies, in

contravention of section 163.3177(2); (2) fails to discourage the prolifer ation

of urban sprawl, as required by section 163.3177(6)(a)9 . ; and (3) is not Ñbased

upon relevant and appropriate data and analysis , Ò as required by section

163.3177(1)(f).

Internal C onsistency

26 . The Comprehensive Plan gives the County Commission flex ibility to

appropriately balance the communityÔs needs with land use, environmental,

and other Comprehensive Plan policies. It is inherent in the comprehensive

planning process that the Comprehensive Plan contains potentially

competing goals, objectives, a nd policies, and that addressing them entails a

balancing act rather than an all - or - nothing choice. The Comprehensive Plan

expressly recognizes this balancing act in its Statement of Legislative Intent:

The Board recognizes that a particular application

ma y bring into conflict, and necessitate a choice

between, different goals, priorities, objectives, and

provisions of the CDMP. While it is the intent of

the Board that the Land Use Element be afforded a

high priority, other elements must be taken into

consi deration in light of the BoardÔs responsibility

to provide for the multitude of needs of a large

heavily populated and diverse community.

* * *

Recognizing that County Boards and agencies will

be required to balance competing policies and

objectives of the CDMP, it is the intention of the

County Commission that such boards and agencies

consider the overall intention of the CDMP as well

as portions particularly applicable to a matter

under consideration in order to ensure that the

CDMP, as applied, will p rotect the public health,

safety and welfare.

Accordingly, the Comprehensive Plan must be read as a whole, and a plan

amendment should not be measured against only certain policies in isolation.

27 . KromeÔs expert, Ken neth Metcalf, opined that the Plan A mendment

affirmatively furthers several Comprehensive Plan goals, objectives, and

policies, including Land Use Policies (ÑLUÒ) 1G, 1O, and 8E ; Conservation

Policy (ÑCONÒ) 6E ; Community Health and Design Policies (ÑCHMPÒ) 4A and

4C ; Coastal Management Polic ies (ÑCMÒ) 8A and 8F ; and Economic Policy

(ÑECOÒ) 7A.

28. Petitioner contends that the Plan Amendment is inconsistent with

some of th ose same policies , as well as other policies .

29 . Petitioner contends that the Plan Amendment is inconsistent with

Policy LU - 1G, which states:

Business developments shall preferably be placed

in clusters or nodes in the vicinity of major roadway

intersections, and not in continuous strips or as

isolated spots, with the exception of small

neighborhood nodes. Business developm ents shall

be designed to relate to adjacent development, and

large uses should be planned and designed to serve

as an anchor for adjoining smaller businesses or

the adjacent business district. Granting of

commercial or other non - residential zoning by the

County is not necessarily warranted on a given

property by virtue of nearby or adjacent roadway

construction or expansion, or by its location at the

intersection of two roadways.

3 0 . Petitioner offered no expert testimony to support this contention. By

co ntrast, Mr. Metcalf opined that the Plan Amendment was consistent with

the allowance in Policy LU - 1G for small neighborhood nodes based on its

relationship to the adjacent rural residential and agricultural community,

especially given the evidence that suc h adjacent community lacks existing

options for gas and convenience goods. He further explained that use of the

word ÑpreferablyÒ in Policy LU - 1G indicated a preference, not a bright - line

rule or requirement, and that the Comprehensive Plan does not contai n a

definition of Ñsmall neighborhood nodesÒ or any interim step for designating

such nodes.

3 1 . Further, the CountyÔs expert, Alex David, opined that the Plan

Amendment is not inconsistent with Policy LU - 1G. He first noted that

locating business developm ents in clusters or nodes is preferable, but not

compulsory. In addition, he explained that the policy allows for small

neighborhood nodes, and that this Plan Amendment fits the concept of a

small neighborhood node in terms of its location, scale, and func tion:

• Location: The Plan amendment is limited to a

portion of a quadrant of the intersection of two

roads adjacent to a rural community, so it will

not be linear development along the Krome

Avenue corridor;

• Scale: The Plan amendment is considered

Ñsmall - scaleÒ under the Florida Statutes because

it involves less than 10 acres in land area. In

addition, the Declaration of Restrictions

accepted by the County Commission restricts

the extent of land uses (other than those

permitted under the AU Zoning District ) to a

convenience retail limited to a maximum of

6,000 square feet and a gas station with

15 fueling positions; and

• Function: Neither the Comprehensive Plan nor

the County Code define the term Ñconvenience

store.Ò However, many other communities

define this use as a small retail establishment

intended to serve the daily or frequent needs of

the surrounding neighborhood population by

offering for sale prepackaged food products,

household items, over - the - counter medicine,

newspapers and magazines, freshly prepared

foods, and even access to an ATM. In rural

neighborhoods such as those surrounding the

location of the Plan Amendment, a convenience

store associated with a gas station is often the

only place nearby to buy such items. These

stores often also serv e as a community

gathering spot.

Based on these characteristics, Mr. David opined that the Plan Amendment

would create a small neighborhood node with a gas and convenience use for

the surrounding rural farm community, similar to the nodes to the south

a long Krome Avenue that serve the surrounding communities there.

Mr. David also contradicted PetitionerÔs contention that the Comprehensive

Plan contains a process for designating nodes .

3 2 . Petitioner contends that the Plan Amendment is inconsistent with

Policy LU - 1O, which states: ÑMiami - Dade County shall seek to prevent

discontinuous, scattered development at the urban fringe in the Agriculture

Areas outside the Urban Development Boundary, through its Comprehensive

Plan amendment process, regulatory and capital improvements programs

and intergovernmental coordination activities.Ò

3 3 . Petitioner offered no expert testimony to support this contention. By

contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent

with LU - 1O because the develo pment contemplated by the Plan Amendment

is designed to serve the adjacent existing rural neighborhoods to the

southwest that are in need of gas and convenience goods.

3 4 . Mr. David opined that the Plan Amendment is not inconsistent with

Policy LU - 1O. He explained that this policy aims to ensure that development

does not happen in isolation and occurs, instead, where other development

already exists. Because the Plan Amendment site is proximate to a

contiguous , and nearly continuous grid of , existing devel opment consisting of

rural estate residential and small - scale residential farms, the Plan

Amendment does not contravene this policy or its purpose.

35 . Petitioner contends that the Plan Amendment is inconsistent with

Policy LU - 1P, which states:

While con tinuing to protect and promote

agriculture as a viable economic activity in the

County, Miami - Dade County shall explore and may

authorize alternative land uses in the South Dade

agricultural area which would be compatible with

agricultural activities and a ssociated rural

residential uses, and which would promote

ecotourism and agritourism related to the area's

agricultural and natural resource base including

Everglades and Biscayne National Parks.

36 . Petitioner offered no evidence or expert testimony to s upport the

contention that the Plan Amendment is inconsistent with Policy LU - 1P. By

contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent

with Policy LU - 1P because that policy allows for alternative land uses that

are compatible with ag ricultural uses, such as KromeÔs plans for the store to

support local agricultural uses and agri - tourism by selling fresh fruit from

local groves and diesel for smaller scale agricultural farmers, as provided in

the Declaration of Restrictions.

37 . Mr. Da vid opined that the Plan Amendment is not inconsistent with

that policy. He explained that the Plan Amendment pertains only to a very

small portion (less than six gross acres) of a larger agricultural site, which

will continue to be actively used for agric ulture, and there is no evidence that

the Plan Amendment will impair the viability of the agricultural economy in

the County.

38. As Mr. David explained, the County previously determined that the

amount of land that is needed to maintain a ÑviableÒ agricu ltural industry is

approximately 50,000 acres, and according to the County, the County has

about 55,206 acres available. The 5.97 gross acres (approximately 4.6 net

acres) of land that the Plan Amendment directly impacts is miniscule in

comparison. Mr. Dav id also explained how the uses specified in the

Declaration of Restrictions are compatible with agricultural activities and

associated rural residential uses, as well as promoting economic development

in the CountyÔs agricultural area.

39 . Petitioner conte nds that the Plan Amendment is inconsistent with

Policy LU - 1S, which states:

The Miami - Dade County Strategic Plan shall be

consistent with the Comprehensive Development

Master Plan (CDMP). The Miami - Dade County

Strategic Plan includes Countywide community

goals, strategies and key outcomes for Miami - Dade

County government. Key outcomes of the Strategic

Plan that are relevant to the Land Use element of

the CDMP include increased urban infill

development and urban center development,

protection of viable agr iculture and

environmentally - sensitive land, reduced flooding,

improved infrastructure and redevelopment to

attract businesses, availability of high quality

green space throughout the County, and

development of mixed - use, multi - modal, well

designed, and su stainable communities.

4 0 . Petitioner offered no expert testimony to support this contention.

PetitionerÔs reliance on LU - 1S is misplaced because that provision requires

the Miami - Dade County Strategic Plan to be consistent with the

Comprehensive Plan , no t the other way around. As such, this policy is

irrelevant to the Plan Amendment, as both Mr. Metcalf and Mr. David

testified.

4 1 . Petitioner contends that the Plan Amendment is inconsistent with

Policy LU - 2B, which states:

Priority in the provision of se rvices and facilities

and the allocation of financial resources for services

and facilities in Miami - Dade County shall be given

first to serve the area within the Urban Infill Area

and Transportation Concurrency Exception Areas.

Second priority shall be gi ven to serve the area

between the Urban Infill Area and the Urban

Development Boundary. And third priority shall

support the staged development of the Urban

Expansion Area (UEA). Urban services and

facilities which support or encourage urban

development in Agriculture and Open Land areas

shall be avoided, except for those improvements

necessary to protect public health and safety and

which service the localized needs of these non -

urban areas. Areas designated Environmental

Protection shall be particularly a voided.

4 2 . Petitioner offered no evidence or expert testimony to support this

contention. By contrast, Mr. Metcalf opined that the Plan Amendment was

not inconsistent with Policy LU - 2B because that policy provides a specific

exception for improvements th at will serve Ñlocalized needs of these non -

urban areas,Ò such as the proposed gas station and convenience store.

4 3 . Mr. David opined that the Plan Amendment is not inconsistent with

Policy LU - 2B because it does not request, require, or necessitate the

e xpansion of the Urban Development Boundary (Ñ UDB Ò) or the Urban

Expansion Area (Ñ UEA Ò) , nor does it involve or propose the extension of

urban services or facilities outside the 2020 UDB or into the Agriculture and

Open Land areas. Mr. David explained that gas stations and convenience

stores are not Ñservices or facilities,Ò as those terms are used in the

Comprehensive Plan , nor would the gas station or convenience store allowed

by the Plan Amendment be an ÑurbanÒ use. Therefore, urban services and

facilitie s that support or encourage urban development in Agriculture or

Open Land areas will continue to be avoided.

44. Mr. David further explained, as County planning staff recognized, the

Plan Amendment will not impact key infrastructure and Levels of Service

( Ñ LOS Ò ) that exist within the UDB (including, but not limited to, water and

sewer, transportation, solid waste, etc.). A lthough County staff found that,

under the Plan Amendment, fire and rescue services for the Property would

not meet national industry st andards, Mr. David refuted that concern,

explaining that the C omprehensive Plan does not require compliance with

national industry standards for fire and rescue, nor does the Plan

Amendment violate a County LOS standard for fire and rescue.

4 5 . Petitioner contends that the Plan Amendment is inconsistent with

Objective LU - 7, which states:

Miami - Dade County shall require all new

development and redevelopment in existing and

planned transit corridors and urban centers to be

planned and designed to promote tr ansit - oriented

development (TOD), and transit use, which mixes

residential, retail, office, open space and public

uses in a safe, pedestrian and bicycle friendly

environment that promotes mobility for people of

all ages and abilities through the use of rap id

transit services.

4 6 . The Plan Amendment is not located in an existing or planned transit

corridor or urban center. Objective LU - 7 is not applicable to the Plan

Amendment.

47 . Petitioner contends that the Plan Amendment is inconsistent with

Policy LU - 8 C, which states: ÑThrough its planning, capital improvements,

cooperative extension, economic development, regulatory and

intergovernmental coordination activities, Miami - Dade County shall continue

to protect and promote agriculture as a viable economic us e of land in Miami -

Dade County.Ò

48 . Petitioner offered no expert testimony to support this contention. By

contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent

with Policy LU - 8C. He explained that the policy contained a general direct ive

for the County to promote and protect agriculture, but did not prohibit small

scale plan amendments that respond to the existing needs of the surrounding

agricultural and rural communities, such as the Plan Amendment.

49 . Further, Mr. David opined tha t the Plan Amendment is not

inconsistent with Policy LU - 8C. Again, he explained that the Plan

Amendment pertains only to a small portion of the Parent Tract , which will

continue to be actively used for agriculture ; that the uses specified in the

Declaratio n of Restrictions are compatible with agricultural activities and

associated rural residential uses ; and that those uses will promot e economic

development in the CountyÔs agricultural area. He also explained that

removing the Property from agricultural pro duction would not reduce the

number of acres in agricultural production below the threshold needed to

sustain agriculture as a viable economic activity in Miami - Dade County.

Mr. David further explained that there is no provision in the Comprehensive

Plan c ategorically prohibiting the removal of agricultural land from

agricultural production.

50 . Petitioner argued that the Plan Amendment would further degrade

existing agricultural uses in the area because it could tempt ATV riders to

trespass and ride their ATVs over nearby agricultural lands . Mr. David found

that speculative concern immaterial to the analysis required by the

Comprehensive Plan .

5 1 . Petitioner contends that the Plan Amendment is inconsistent with

Policy LU - 8E, which states:

Applications re questing amendments to the CDMP

Land Use Plan map shall be evaluated for

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:

i) Satisfy a deficie ncy in the Plan map to

accommodate projected population or

economic growth of the County;

ii) Enhance or impede provision of services at

or above adopted LOS Standards;

iii) Be compatible with abutting and nearby

land uses and protect the character of

es tablished neighborhoods;

iv) Enhance or degrade environmental or

historical resources, features or systems of

County significance; and

v) If located in a planned Urban Center, or

within 1/4 mile of an existing or planned

transit station, exclusive buswa y stop,

transit center, or standard or express bus

stop served by peak period headways of 20 or

fewer minutes, would be a use that promotes

transit ridership and pedestrianism as

indicated in the policies under Objective LU -

7, herein.

5 2 . Petitioner offer ed no expert testimony to support this contention. By

contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent

with Policy LU - 8E. As an initial matter, Mr. Metcalf explained that this

Policy only requires an evaluation of Ñthe extent to wh ichÒ the subparts are

satisfied, and does not set a threshold or a specific methodology. Regarding

subpart (i), Mr. Metcalf explained the Plan Amendment addressed an

existing and future need for a gas station, convenience retail products, fresh

food , and s upporting products for the agricultural industry within the general

area, which currently lacks these offerings. In addition, he opined that the

gas station would respond to a critical need to reduce fuel shortages during

hurricane evacuations.

5 3 . As to subparts (ii - iv), Mr. Metcalf opined that the Plan Amendment

would not impede provision of services at LOS standards ; would enhance

hurricane evacuations ; would be compatible with nearby uses because the

Parent Tract would continue to be used for agricultu r e, which would serve as

a buffer between the Subject Property and adjacent uses ; and that the

Subject Property does not contain any environmental or historical resources,

features, or systems of County significance.

5 4 . Further, Mr. David opined that the Plan Amendment is not

inconsistent with Policy LU - 8E. He explained, first, that Krome submitted

with its application a Comprehensive Plan Consistency Evaluation study

prepared by Mr. Metcalf, establishing that the Plan Amendment will help

satisfy an exist ing deficiency in the Plan map by facilitating a convenience

retail opportunity to serve the needs of the local population, who currently

must drive on Krome Avenue at least three miles one way south of this

location to SW 184th Street, or more than eight miles north, and then east on

Kendall Drive (SW 88th Street), to reach the nearest equivalent services. In

addition, there was significant support for the application by area residents,

as evidenced by the petition submitted by Krome and the public testimo ny in

favor of the Plan Amendment.

55. Second, he explained that the Plan Amendment will not impede the

provision of services at or above adopted LOS standards, as County staff

noted in its report. On the contrary, with regards to traffic, the Plan

Amendm ent may facilitate a reduction in trip generation and vehicle - miles

traveled ( Ñ VMT Ò ) on Krome Avenue from the existing residential community

to the west and south, by providing a nearby convenience that may be

reached without driving several miles north or south on Krome Avenue.

56. Third, he opined that the Plan Amendment is compatible with

abutting and nearby land uses and would protect the character of established

neighborhoods Ð the large - scale solar power facility to the north, and the

remainder of the 50 - acre parcel that will remain in agricultural use to the

west and south Ð will provide an appropriate buffer for the surrounding rural

estate residential uses. Krome Avenue at this location is a 4 - lane divided

arterial with a 40 - foot median, which also pro vides a significant buffer

between the Plan Amendment site and the uses across Krome Avenue. In its

evaluation, County staff recognizes that the ÑBusiness and OfficeÒ land use

designation and the proposed development could be Ñgenerally compatibleÒ

with th e existing agricultural uses and FPLÔs Solar Energy Center. Mr. David

opined that the assertion that the land use re - designation Ñwould set a

precedent for the conversion of additional agricultural land to commercial

usesÒ is speculative and not only unpro ven, but refuted by the existing

commercial development along the Krome Avenue corridor. The existing

isolated uses along Krome Avenue, some of which are the same or similar

uses that would be allowed by the Plan Amendment, are long - standing and

have not l ed to urban development or infill in the area. Mr. David also

testified that there are Ñvery stringent policiesÒ that restrict further

development from occurring along Krome Avenue in this area, including

Policies LU - 3N and LU - 3O.

57. Fourth, Mr. David ex plained that the Plan Amendment will not

degrade historical or archaeological resources, features, or systems of County

significance, which is further confirmed by County staff Ôs own analysis.

Regarding impacts to environmental resources, before any develo pment

proceeds on the Subject Property, the applicant must apply to all relevant

state, regional, and local agencies for the applicable and necessary permits

and variances, and if the applicant is unable to obtain such approvals due to

environmental concer ns, the project will not be permitted to proceed. In other

words, while there is no evidence of adverse environmental impacts at the

plan amendment stage, the applicant will have to satisfy all environmental

requirements in subsequent stages of the develop ment process to proceed

with the project.

58. Lastly, Mr. David explained that the Plan Amendment site is not

located in an Urban Center or within 1/4 mile of an existing or planned

transit station, exclusive busway stop, transit center, or standard or ex press

bus stop served by peak period headways of 20 or fewer minutes; thus, the

fifth and final consideration of Policy LU - 8E is inapplicable to the Plan

Amendment .

5 9 . Petitioner contends that the Plan Amendment is inconsistent with

Policy LU - 8G, which pr ovides criteria for plan amendments that add land to

the UDB. Because the Plan Amendment does not add land to the UDB, Policy

LU - 8G is irrelevant to the Plan Amendment.

60 . Petitioner contends that the Plan Amendment is inconsistent with

Policy CHD - 4A, whi ch states: ÑPromote increased production and expand the

availability of agricultural goods and other food products produced in Miami -

Dade County.Ò

6 1 . Petitioner offered no expert testimony to support this contention. By

contrast, Mr. Metcalf opined tha t the Plan Amendment was not inconsistent

with Policy CHD - 4A because the proposed store would support the local sale

and consumption of goods from the community. Similarly, Mr. David opined

that the Plan Amendment is not inconsistent with Policy CHD - 4A. He

explained that there is no metric associated with this aspirational policy, and

noted that the approval of the Plan Amendment pertains only to a small

portion of a larger agricultural site, the balance of which will continue to be

protected and promoted f or agricultural use. Moreover, he explained that the

uses allowed by the Plan Amendment through the Declaration of Restrictions

are limited to those permitted in the AU Zoning District, plus a fueling and

convenience retail service use, which could support the sale and consumption

of local agricultural goods.

6 2 . Petitioner contends that the Plan Amendment is inconsistent with

Policy CON - 6D, which states: ÑAreas in Miami - Dade County having soils

with good potential for agricultural use without additional dr ainage of

wetlands shall be protected from premature urban encroachment.Ò

6 3 . Petitioner offered no expert testimony to support this contention. By

contrast, Mr. Metcalf opined that the Plan Amendment is not inconsistent

with the policy because it affects only a five - acre tract, and because the Plan

Amendment was justified by the existing demand.

6 4 . Further, Mr. David opined that the Plan Amendment is not

inconsistent with Policy CON - 6D. He noted, first, that according to the

County, the Plan Amendment s ite does not contain jurisdictional wetlands.

Second, he explained the Plan Amendment will not result in premature

urban encroachment Ï i.e., a poorly planned expansion of low - density

development spread out over large amounts of land, putting long distances

between homes, stores, and work, and requiring an inefficient extension of

urban infrastructure and services. According to Mr. David, the adopted Plan

Amendment is the opposite of these characteristics because: a) it pertains to a

very small site, with a r ange of permitted uses that is specifically limited by

the accepted Declaration of Restrictions; b) it will reduce the distance

between residentsÔ homes and local - serving convenience services; and c) it

does not involve the extension of urban infrastructur e and services. In

addition, Mr. David opined that the term ÑprematureÒ does not apply to the

Plan Amendment, as evidenced by the public support of area residents for the

gas and convenience uses and the applicantÔs expert analysis of area need.

Furthermor e, Mr. David established that a gas station with a convenience

store is not an ÑurbanÒ use, and , therefore , the Plan Amendment does not

allow Ñurban encroachment.Ò

6 5 . Petitioner contends that the Plan Amendment is inconsistent with

Policy CON - 6E, which s tates: ÑMiami - Dade County shall continue to pursue

programs and mechanisms to support the local agriculture industry, and the

preservation of land suitable for agriculture.Ò

6 6 . Petitioner offered no expert testimony to support this contention. By

contras t, Mr. Metcalf opined that the Plan Amendment was consistent with

Policy CON - 6E because it affected less than five net acres, only 10 percent of

the Parent Tract, and would provide convenience goods for the community

and local farmworkers. He further expla ined, again, that the policy does not

prohibit small - scale plan amendments that respond to a local need.

6 7 . Further, Mr. David opined that the Plan Amendment is not

inconsistent with Policy CON - 6E. He explained that the Plan Amendment

does not prevent Mi ami - Dade County from continuing to pursue programs

and mechanisms to support the local agriculture industry and the

preservation of land suitable for agriculture. Moreover, the addition of the

permitted uses on a small portion of an otherwise agricultural site , which will

continue to be used for agricultural production , is not inconsistent with this

policy.

Urban Sprawl

6 8 . Petitioner alleges that the Plan Amendment fails to discourage the

proliferation of urban sprawl, contrary to section 163.3177(6)(a)9 , Florida

Statutes.

6 9 . Petitioner offered no evidence or expert testimony to support this

contention. By contrast, Mr. Metcalf opined that the Plan Amendment would

not constitute scattered or discontinuous development because, inter alia , it

would introd uce uses designed to serve the existing nearby community.

Mr. Metcalf opined that the Plan Amendment would allow for non - vehicular

trips due to the proximity of the rural neighborhoods and would internalize

vehicular trips without requiring access to Krome Avenue, consistent with

strategies to discourage urban sprawl. Finally, Mr. Metcalf opined that at

least six of the eight criteria provided in section 163.3177(6)(a)9.B . were

satisfied by the Plan Amendment. Specifically, he opined that:

• The Plan Amendme nt will not have an adverse

impact on natural resources or ecosystems;

• The Plan Amendment promotes the efficient

and cost - effective provision or extension of

public infrastructure and services because the

subject property will not be served by public

inf rastructure and is already served by

emergency services, and because it will reduce

demand on roads from nearby neighborhoods,

thereby reducing operational and maintenance

costs;

• The Plan Amendment promotes walkable and

connected communities and provides for

compact development and a mix of uses at

densities and intensities by providing

convenience goods and services within walking

or biking distance to nearby residential

neighborhoods and local farm workers;

• The Plan Amendment promotes the

conservation o f water and energy by reducing

water demands as compared to the former use of

the Property, and by reducing existing trip

lengths otherwise required to access goods and

services;

• The Plan Amendment indirectly supports the

preservation of agricultural area s and activities

by providing diesel fuel, selling locally grown

produce and other agriculturally supportive

products, and by maintaining the agricultural

use on the remainder of the Parent Tract ;

• The Plan Amendment creates an improved

balance of land use s by providing convenience

goods and gasoline/diesel fuel in response to the

demands of the neighborhood residents and

local farm workers;

• The Plan Amendment remediates the existing,

single use, urban sprawl development pattern

by providing a commercial u se in a compact

urban form at an intensity to allow residents

and local farm workers to obtain goods,

gasoline, and diesel fuel without leaving the

neighborhood; and

• The Plan Amendment does not impact the

criterion for open space, natural lands and

publi c open space.

70 . Similarly, Mr. David opined that the Plan Amendment would not

result in the proliferation of urban sprawl; he analyzed each of the statutory

indicators of urban sprawl in section 163.3177(6)(a)9.A . and found that none

are present, meanin g that the Plan Amendment does not fail to discourage

the proliferation of urban sprawl. In addition, he found that four of the

statutory indicators of the Plan Amendment that would discourage the

proliferation of urban sprawl , are present . He found that t he remainder were

not applicable.

71. Specifically, Mr. David opined that the Plan Amendment would meet

the following four indicators:

I. Directs or locates economic growth and

associated land development to geographic

areas of the community in a manner t hat does

not have an adverse impact on and protects

natural resources and ecosystems.

As Mr. David explained, agriculture is a human development activity.

Therefore, the Parent Tract is not in a natural state , n or does it contain

natural resources and ec osystems.

According to County staffÔs own report, the Subject Property does not

feature native wetland communities, specimen trees, endangered species, or

natural forest communities. There are no jurisdictional wetlands, no water

courses, and no federally designated critical habitat on the Subject Property

or adjacent properties. The Subject Property is not in a wellfield. Other

environmental considerations, including water and stormwater management,

and flood protection, are directed through the pertinent permitting agencies

at the appropriate time to ensure that any future development minimizes

adverse impacts on the general environment.

II. Promotes the efficient and cost - effective

provision or extension of public infrastructure

and services.

As Mr. Da vid opined, the Plan Amendment does not involve or require the

provision or extension of County - owned public infrastructure and services.

This, therefore, meets the definition of the terms ÑefficientÒ and Ñcost -

effective,Ò since the County will not have to invest time or funding in the

extension of such infrastructure and services. The County staffÔs own report

finds, as a fact, that the amendment would not negatively impact existing

infrastructure and service within the UDB. Moreover, the contention that f ire

and rescue services would not meet national industry standards is irrelevant

because : (1) t he Comprehensive Plan does not adopt the national industry

standard as the LOS; and (2) the Plan Amendment would not negatively

impact current estimated travel t imes for fire and rescue services. Further,

as Mr. David testified with respect to the first set of urban sprawl indicators,

the Plan Amendment would not disproportionately impact fire and rescue

services.

V. Preserves agricultural areas and activities,

i ncluding silviculture, and dormant, unique, and

prime farmlands and soils.

As Mr. David explained, the Plan Amendment preserves agricultural

areas and activities because the balance of the Parent Tract will continue to

be preserved as crop land, and beca use the uses allowed in the proffered

Declaration of Restrictions include agricultural uses and a fueling station

that could include the sale of diesel, which is in demand for agricultural uses.

VII. Creates a balance of land uses based upon

demands of the residential population for the

nonresidential needs of an area.

As Mr. David opined, today the area does not have a balance of land uses,

as it is entirely dominated by rural estate residential and agricultural uses.

By introducing a gas and convenienc e use supportive of agriculture, the Plan

Amendment will create a better balance of land uses in the area. Today, the

local population does not have access to any type of convenience shopping in

the vicinity of this location, because it is situated along a n 11 - mile gap

between such uses on Krome Avenue. Contrary to the contention that the

applicant failed to demonstrate the use is needed or required by residents,

the applicant provided written evidence of support from over 100 neighbors

about the need for t he proposed nonresidential use and its benefit to their

quality of life. Moreover, according to the public hearing record, many

residents also attended the public hearings to express their support for the

Plan Amendment. Further supporting the finding of n eed, the corporate

representative of Krome testified in detail about the neighborhoodÔs need for

a gas station and convenience store.

Data and A nalysis

7 2 . Finally, Petitioner alleges that the Plan Amendment Ñis not based

upon the relevant and appropriat e data and analysis provided by the County

planning staff at the Department of Regulatory and Economic Resources, as

required by section 163.3177(1)(f), Florida Statutes.Ò Petitioner also alleges

that the Plan Amendment is based on Ñthe convenience of acce ss to fuel for

private property owners in the area and not on relevant data and analysis.Ò

PetitionerÔs allegations, both in the Amended Petition and the Joint Pre -

Hearing Stipulation, are conclusory and do not supply any discernible

rationale for why she contends the Plan Amendment is not based on relevant

and appropriate data and analysis.

7 3 . Petitioner offered no evidence or expert testimony to support these

contentions. By contrast, Mr. Metcalf opined that the Plan Amendment is

based on Ñrelevant and appropriate data and analysisÒ supporting the Plan

Amendment contained in the record. Namely, the following sources constitute

such Ñrelevant and appropriate data and analysisÒ: Mr. MetcalfÔs

Comprehensive Plan Consistency Evaluation, which contains 78 pag es of

comprehensive data and analysis supportive of his consistency findings; a

petition of support for the Plan Amendment signed by over 100 members of

the surrounding community; testimony from community members at various

public hearings indicating a nee d for the Plan Amendment; and a letter from

the Dade County Farm Bureau stating that the organization had no objection

to the Plan Amendment

7 4 . Further, Mr. David also opined that the Plan Amendment is based on,

and supported by, appropriate data and ana lysis. He explained that the video

recordings and the legislative history of the adoption hearings related to the

disposition of the Plan Amendment application clearly show that the County

Commission duly considered the analysis provided by County staff be fore

making a decision. Commissioners asked staff members thoughtful questions

and discussed various findings of the staff report throughout the public

hearings. Mr. David explained that County staffÔs input is not the only

criterion upon which elected off icials may rely. Indeed, relevant data and

analysis were also submitted by the applicant as part of the Plan Amendment

application, including the Comprehensive Plan Consistency Evaluation study

prepared by Mr. Metcalf. The Consistency Evaluation study reli es on

professionally accepted data sources and Mr. MetcalfÔs extensive expertise to

provide a sound rationale for the requested Plan Amendment.

7 5 . The County Commission considered, and reacted in an appropriate

way to, such relevant and appropriate data. The County Commission received

and considered community input in the form of public testimony, much of

which was in support of the Plan Amendment, as well as the applicantÔs

petition of support from members of the surrounding community expressing

need for local gas and convenience uses. Finally, Mr. DavidÔs expert report

itself supplies further data and analysis supporting the Plan Amendment.

Other Allegations

76 . Petitioner alleges that the Plan Amendment Ñdepletes the Urban

Development Boundary and Urba n Expansion Areas.Ò

77 . The Comprehensive Plan includes the UDB to distinguish the area

where urban development may occur from areas where it should not occur.

78 . T he Comprehensive Plan defines the UEA as Ñthe area where current

projections indicate th at further urban development beyond the 2020 UDB is

likely to be warranted sometime between the year 2020 and 2030.Ò

79 . Petitioner fails to identify any inconsistency between the Plan

Amendment and any UDB or UEA policies based on her assertion that

depl etion will occur. Moreover, there are no goals, objectives, or policies in the

Comprehensive Plan that address the concept of ÑdepletingÒ the UDB or

UEAs.

8 0 . Petitioner also alleges that the County adopted the Plan Amendment

Ñto benefit[] other private property owners and special interests.Ò

8 1 . Petitioner introduced no evidence to support this allegation, and the

allegation is also irrelevant to whether the Plan Amendment is Ñin

compliance.Ò

C ONCLUSIONS OF L AW

8 2 . The Division has jurisdiction over the subject matter of this

proceeding , and the parties thereto, pursuant to sections 163.3184(5),

120.569 , and 120.57(1), Florida Statutes (2020) .

8 3 . Petitioner is an affected person and therefore has standing to bring

the instant challenge, pursuant to s ection 163.3184(5).

8 4 . The ultimate legal issue in this proceeding is whether the Plan

Amendment is Ñin compliance,Ò as that term is defined in section

163.3184(1)(b), and specifically with regard to the requirements set forth in

section 163.3177(1)(f), (2), and (6)(a)9.

8 5 . Petitioner, as the party challenging the Plan Amendment, has the

burden of proof. See Young v. DepÔt of Cmty. Affairs , 625 So. 2d 831, 835 (Fla.

1993) .

86 . The standard of proof to establish a finding of fact is a preponderance

of t he evidence, and findings of fact shall be based exclusively on the evidence

in the record and on matters officially recognized. See § 120.57(1)(j), Fla.

Stat.; see also Pacetta, LLC v. Town of Ponce Inlet , Case No. 09 - 1231GM,

( Fla. DOAH Mar. 20, 2012 ; Fla . DEO June 19, 2012 ).

87 . Petitioner is bound by the allegations in the Amended Petition as to

the alleged deficiencies in the Plan Amendment and further limited by the

issues presented in the Pre - h earing Stipulation. See §§ 120.569 and

120.57(1), Fla. Sta t.

88 . The CountyÔs determination that the Plan Amendment is Ñin

complianceÒ is presumed to be correct, and the Ñplan amendment shall be

determined to be Ó in compliance Ô if the local governmentÔs determination of

compliance is fairly debatable.Ò § 163.318 4(5)(c)1., Fla. Stat.

89 . In Martin County v. Yusem , 690 So. 2d 1288 (Fla. 1997), the Court

said, ÑThe fairly debatable standard of review is a highly deferential standard

requiring approval of a planning action if reasonable persons could differ as

to its propriety.Ò Id . at 1295. Quoting from City of Miami Beach v. Lachman ,

71 So. 2d 148, 152 (Fla. 1953), the Court stated further that Ñ[a]n ordinance

may be said to be fairly debatable when for any reason it is open to dispute or

controversy on grounds that make sense or point to a logical deduction that

in no way involves its constitutional validity.Ò Put more simply, in the context

of a challenge to a comprehensive plan amendment, the amendment is fairly

debatable if its validity can be defended with a sen sible argument.

90 . The mere existence of contravening evidence is not sufficient to

establish that a land planning decision is Ñfairly debatable.Ò It is firmly

established that:

[E]ven though there was expert testimony adduced

in support of the CityÔs c ase, that in and of itself

does not mean the issue is fairly debatable. If it did,

every zoning case would be fairly debatable and the

City would prevail simply by submitting an expert

who testified favorably to the CityÔs position. Of

course that is not t he case. The trial judge still

must determine the weight and credibility factors

to be attributed to the experts. Here the final

judgment shows that the judge did not assign much

weight or credibility to the CityÔs witnesses.

Boca Raton v. Boca Villas Co rp ., 371 So. 2d 154, 159 (Fla. 4th DCA 1979) .

(citations omitted) .

9 1 . In considering the reasonableness of the local governmentÔs

interpretations, all pertinent provisions of a comprehensive plan must be

considered in pari materia . See KatherineÔs Bay, LL C v. Fagan , 52 So. 3d 19,

28 - 30 (Fla. 1st DCA 2010) (Ñ[U]nder the Plan, the entire Coastal Area is

considered environmentally sensitive, and yet Ó[f]uture developmentÔ of this

environmentally sensitive area is expected. Thus, when all the pertinent

provisi ons of the Plan are considered in pari materia , the mere fact that an

area has environmental limitations is not a basis to prohibit development as

long as the development is carried out in accordance with the limitations

provided by the Plan and the [land development code].Ò).

9 2 . A plan amendment may be found in compliance where it furthers

some goals of a comprehensive plan, even at the expense of other goals in the

same plan. With particular regard to Policy LU - 8E, the various factors in

that policy are weighed and balanced when considering a land use plan map

change. Flagler Retail Assocs., Ltd. v. Miami - Dade Cty. , Case No. ACC - 10 -

006, at 8 - 9 (Fla. Admin. CommÔn Mar. 10, 2011). LU - 8E does not identify any

particular factor or portion as more important th an any other. Id. A showing

that a plan amendment furthers goals, objectives, or policies of the

Comprehensive Plan taken as a whole, and is consistent with the overall

planning strategies that are reflected therein, is sufficient to show

consistency with LU - 8E. Id. Thus, amendments relating to one goal need not

also further different, and often competing, goals:

There is no reason to insist that all objectives and

policies of a plan Ñtake action in the direction of

realizingÒ the other objectives and polic ies of the

same plan. . . . [A]n objective in the conservation

element of a plan should not be required to take

action in the direction of realizing an objective in

the public facilities element of the same plan.

Without furthering each other, the conserva tion

objective or public facility objective may each

pursue its respective goal.

Kelly v. City of Cocoa Beach , Case No. 90 - 3580GM, 1990 WL 749217, at *21

(Fla. DOAH Mar. 4, 1991); accord Zemel v. Lee Cty. , Case No. 90 - 7793GM,

(Fla. DOAH Dec. 16, 1992; Fla . DCA June 23, 1993 ), affÔd , 642 So. 2d 1367

(Fla. 1st DCA 1994).

9 3 . This Plan Amendment affirmatively furthers several Comprehensive

Plan goals, objectives, and policies, including Policies LU - 1G, LU - 1O, LU - 8E,

CON - 6E, CHD - 4A, CHD - 4C, CM - 8A, CM - 8F, and E CO - 7A.

9 4 . Further, Petitioner introduced no credible evidence that the Plan

Amendment is internally inconsistent with Objective LU - 7 and Policies LU -

1P, LU - 1S, LU - 2B, LU - 8C, and LU - 8G, as alleged in the Amended Petition.

9 5 . Accordingly, Petitioner has failed to meet her burden of proving

beyond fair debate that the Plan Amendment is internally inconsistent with

the Comprehensive Plan .

9 6 . Petitioner has also failed to meet her burden of proving beyond fair

debate that the Plan Amendment fails to discour age the proliferation of

urban sprawl. The evidence in the record establishes that the Plan

Amendment satisfies the statutory criteria relating to urban sprawl.

97 . Finally, Petitioner has failed to meet her burden of proving beyond fair

debate that the Pl an Amendment is not supported by adequate data and

analysis. The evidence in the record establishes that the Plan Amendment is

supported by relevant and appropriate data and an analysis thereof .

98 . In summary, based on the foregoing, Petitioner has wholly failed to

prove to the exclusion of all fair debate that the Plan Amendment is not Ñin

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

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that t he Department of Economic Opportunity enter a final

order determining that the Plan Amendment adopted by Miami - Dade County

Ordinance No. 20 - 47, on May 20, 2020, is Ñin compliance,Ò as that term is

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

D ONE A ND E NTERED this 16th day of April , 2021 , in Tallahassee, Leon

County, Florida.

S

S UZANNE V AN W YK

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division o f Administrative Hearings

this 16th day of April , 2021 .

C OPIES F URNISHED :

Mary K. Waters James Edwin Kirtley, Assistant County

Post Office Box 700045 Attorney

Miami, Florida 33170 Miami - Dade County Attorney's Office

Stephen P. Clark Center, Suite 281 0

Christopher J. Wahl, Esquire 111 Northwest First Street

Miami - Dade County Attorney's Office Miami, Florida 33128

Suite 2810

111 Northwest 1st Street Mark E. Grafton, Esquire

Miami, Florida 33 128 Shubin & Bass

Third Floor

Alannah Shubrick, Esquire 46 SW 1st Street

Shubin & Bass, P.A. Miami, Florida 33133

Third Floor

46 Southwest 1st Street David Winker, Esquire

Miami, Florida 33130 David J. Winker, P.A.

2222 Southwest 17th Street

Tom Thomas, General Counsel Miami, Florida 33145

Department of Economic Opportunity

Caldwell Building, MSC 110 Dane Eagle, Executi ve Director

107 East Madison Street Department of Economic Opportunity

Tallahassee, Florida 32399 - 4128 Caldwell Building

107 East Madison Street

Janay Lovett, Agency Clerk Tallahassee, Florida 32399 - 4128

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Rec ommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.