99-003915GM City Of Hallandale Beach vs. Broward County And Department Of Community Affairs Status: Closed Recommended Order on Thursday, June 12, 2003.

Summary: Broward County Ordinance restricting use of flexibility units was in compliance under Section 163.3184, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF HALLANDALE BEACH, )

)

Petitioner, )

)

vs. ) Case No. 99 - 3915GM

)

BROWARD COUNTY and DEPARTMENT )

OF COMMUNITY AFFAIRS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its designated Administrative Law Judge, Eleanor M.

Hunter, held a final hearing in the above - styled case on

March 26, 2003, in Fort Lauderdale, Florida. This Recommended

Order is entered by Administrative Law Judge Richard A. Hixson,

pursuant to Section 120.57(1)(a), Florida Statutes.

APPEARANCES

For Petitioner: Mark Goldstein, Esquire

City of Hallandale

400 South Federal Highway

Hallandale, Florida 33009

For Respondent Broward County:

Jose R. Gonzalez, Esquire

Broward County Attorney's Office

115 South Andrews Avenue

Governmental Center, Suite 423

Fort Lauderdale, Florida 33301

For Respondent Department of Community Affairs:

Karen A. Brodeen, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399 - 2100

STATEMENT OF THE ISSUE

The issue for determination in this case is whether Broward

C ounty Ordinance 1999 - 26, amending the Broward County

Compre hensive Plan (Plan), is "in compliance," as defined in

Chapter 163, Part II, Florida Statutes, and more specifically

whether that portion of PCT 99 - 2, adopted through Ordinance

1999 - 26, which limits the use of flexibility units and reserve

units east of th e Intracoastal Waterway is not "in compliance"

under Section 163.3184(1)(b), Florida Statutes, as alleged by

the City of Hallandale Beach.

PRELIMINARY STATEMENT

On September 16, 1999, the Department of Community Affairs

(DCA) forwarded two Petitions to th e Division of Administrative

Hearings (DOAH) for the assignment of an administrative law

judge to conduct the hearings. Both Petitions challenged the

same ordinances amending the Broward County Comprehensive Plan,

and the DCA's intent to find the ordinanc es "in compliance" with

the Plan and Florida law. One Petition, in DOAH Case No. 99 -

3915GM, was filed by the City of Hallandale Beach (Hallandale).

The other Petition, in DOAH Case No. 99 - 3916GM, was filed by the

Ocean Marine Yacht Club, Inc., and Securi ty Management

Corporation (Ocean Marine). Hallandale's Motion to Consolidate

the cases was granted on November 4, 1999, and a hearing was

scheduled to commence on December 20, 1999. The Petitioners

contend that Broward County Ordinance 1999 - 26, was not s upported

by adequate data, was not based on the best available data, and

is inconsistent with other provisions in the Plan and with State

law.

On December 9, 1999, a motion hearing was held and the

City's Renewed Motion for Mediation, filed pursuant to Sec tion

163.3189(3)(a), Florida Statutes, which allows any party to

"demand informal mediation," was granted. The parties were

ordered to establish a mutually convenient date during

February 2000 for mediation. At the same time, Ocean Marine's

Motion to Con tinue, based on its counsel's illness, was granted,

and the December 20, 1999, hearing date was cancelled. The case

was re - scheduled for March 15, 2000.

On December 17, 1999, Petitions to Intervene in both cases,

filed by the City of Fort Lauderdale (Fort Lauderdale) and the

City of Miramar (Miramar) were granted. Another Petition to

Intervene, filed by the Realtor Association of Greater Fort

Lauderdale, was dismissed, as defective on its face, without

prejudice to the filing of an amended petition. On M arch 7,

2000, Ocean Marine filed a Motion to Continue Final Hearing to

pursue a settlement proposal. The Motion was granted and the

parties were directed to report on the status of the case by

May 15, 2000. In May, the parties reported that a settlement

proposal was still being negotiated and, at their request, the

case was placed in abeyance with the next status report due by

September 25, 2000. On that date, the Petitioners reported that

the Broward County Commission had rejected the proposed

settlemen t. Thereafter, final hearing was scheduled for

April 3, 2001.

Ocean Marine's counsel moved for another continuance, due

to his scheduled surgery, and requested a suspension of some

discovery proceedings. Following a motion hearing, the

April 2001 final h earing was cancelled and the case was placed

in abeyance with a status report due on June 8, 2001. That

report stated that "a viable settlement alternative appears to

have been reached" and that 6 to 9 months were needed for review

and approval of propose d amendments to county and city land use

maps and comprehensive plans. The case was again placed in

abeyance with a December 2001 reporting date, and an interim

reporting date of October 31, 2001. The interim report

indicated that settlement talks were c ontinuing, as did the

December status report. The case continued to be abated with a

new status report due in March 2002. After status reports in

March 2002 and July 2002, the case remained abated. After a

Broward County status report, requesting that t he case be set

for hearing, the July abeyance was rescinded and a final hearing

was scheduled to commence on December 10, 2002. Due to the

issues on the agenda for the Broward County Commission's meeting

set for December 3, 2002, the hearing was re - schedu led to

commence on January 28, 2003.

In March 2002, Miramar voluntarily dismissed its Petition,

followed in November 2002, by the voluntary withdrawal of Fort

Lauderdale.

Ocean Marine and Hallandale filed an unopposed motion for a

continuance which was gra nted, and the final hearing scheduled

for January 28, 2003, was continued. On March 4, 2003, Ocean

Marine withdrew its Petition in Case No. 99 - 3916GM. The final

hearing was re - scheduled for and held on March 26, 2003, in Fort

Lauderdale, Florida.

At th e final hearing, the Petitioner, presented the

testimony of Henry A. Sniezek, stipulated to as an expert in

land use planning with the Broward County Planning Council;

Lorenzo Aghemo, stipulated to as an expert in land use planning,

currently the Director of Planning for Palm Beach County,

formerly the Director of Growth Management for the City of

Hallandale Beach; and Robert Daniels, stipulated to as an expert

in land use planning, who is the principal planner for the South

Florida Regional Planning Counci l.

In its case in chief, Broward County also presented the

testimony of Henry Sniezek and Robert Daniels. The Department

called no witnesses.

The parties stipulated to the admissibility of their

exhibits subject to any relevancy objection. The Petitioner

offered the following exhibits into evidence:

P1. Broward County Planning Council

Flexibility Rules Study dated May 23, 1996

P2. June 1, 1999 letter from Susan Tramer,

Broward County Planning Council, to Arnold

Lanner, Mayor, City of Hallandale

P3. January 15, 1999 Broward County

Planning Council Land Use/Trafficways

Committee Agenda and Item 2 attachment

P4. (Future)Broward County Land Use Plan

Map Series dated April 24, 1998

P5. South Florida Regional Planning Council

Memorandum dated October 6, 1997

P6. City of Hallandale Ordinance No. 1998 - 3

P7. August 18, 1999 letter from John

Hulsey, South Florida Regional Planning

Council, to John Easterling, David Plummer

and Associates

The Respondents offered the following exhibits into

evidence, t he admissibility of which the parties stipulated to

subject to any relevancy objection:

R1. Broward County Flexibility Zones Map

R2. Broward County Administrative Rules

Document as amended through October 24, 2002

R3. South Florida Regional Planning Council

Memorandum dated August 2, 1999

R4. Eastward Ho! Revitalizing Southeast

Florida’s Urban Core July 1996, prepared by

the South Florida Regional Planning Council

in conjunction with the Treasure Coast

Regional Planning Council

R5. Broward Count y Land Use Plan Natural

Resource Map Series: Flood Plains, Flood

Prone Areas and Coastal High Hazard Areas

R6. Eastward Ho! Development Futures: Paths

to More Efficient Growth in Southeast

Florida prepared by the Center for Urban

Policy Research, Rutgers University for the

Florida Department of Community Affairs and

the U.S. Environmental Protection Agency

R7. Florida Department of Community Affairs

Memorandum dated August 16, 1999

R8. Broward County Local Mitigation

Strategy adopted 1998

R9. City o f Hallandale Beach Comprehensive

Plan Coastal Management Element

The parties offered the following joint exhibits into

evidence:

J1. Charter of Broward County, Florida,

revised November 5, 2002

J4. Broward County Comprehensive Plan, 1989

Land Use Pl an, November 2002 Edition

J6. June 30, 1999 letter from the Broward

County Planning Council to the Department of

Community Affairs and attachments including

Comprehensive Plan amendments adopted by

Broward County

J8. August 23, 1999 letter from the

Dep artment of Community Affairs to Broward

County Commission Chair Ilene Lieberman and

attached Department of Community Affairs

Notice of Intent to Find the Broward County

Comprehensive Plan Amendments in Compliance

J9. Broward County Land Use Plan (Map) VI I.

Urban Infill, Urban Redevelopment and

Downtown Revitalization Areas

J17. State Comprehensive Plan, Chapter 187,

Florida Statutes

J19. South Florida Regional Planning

Council Strategic Regional Policy Plan for

South Florida

At hearing, the Responde nts objected to the relevancy of

Petitioner's E xhibit 7, the August 18, 1999, letter from

John Hulsey, South Florida Regional Planning Council, to

John Easterling, David Plummer and Associates. The letter

relates to the effects of small - scale developments on evacuation

clearance time on Hallandale Beach. Having reviewed the record,

the Respondents' objection as to relevancy is overruled and

Petitioner's Exhibit 7 is received.

The transcript of the final hearing was filed April 9,

2003. Proposed Recommend ed Orders, initially due on April 29,

2003, were received on May 16, 2003. As a consequence of

granting the Petitioner's Unopposed Motion for Enlargement of

Time to File [Proposed] Recommended Order, the parties

understood and agreed to have the recommend ed order entered by a

different administrative law judge than the one who conducted

the hearing, as authorized by Subsection 120.57(1)(a), Florida

Statutes.

FINDINGS OF FACT

Parties

1. The Petitioner, the City of Hallandale Beach (the City

or Hallandal e) is an incorporated municipality located in

Broward County, Florida. The City is a political subdivision of

the State of Florida. The City has adopted the City of

Hallandale Comprehensive Plan (the City's Plan). In August of

1999, the City of Hallanda le officially changed its name to the

City of Hallandale Beach.

2. The Respondent, Broward County (the County or Broward)

is a political subdivision of the State of Florida. The County

is a charter county. The County has adopted the Broward County

Compr ehensive Plan (the County's Plan).

3. The Respondent, the Department of Community Affairs

(DCA), is the state land planning agency which under Chapter

163, Part II, Florida Statutes, is responsible for, among other

things, the review of municipal and co unty comprehensive plans

to determine if the plans, and subsequent amendments thereto,

are "in compliance" as defined by Section 163.3184(1)(b),

Florida Statutes.

Standing

4. The transmittal hearing for the proposed amendment was

conducted on February 2 3, 1999. The adoption hearing was held

June 22, 1999.

5. During the plan amendment process, the City submitted

three letters dated January 22, 1999, February 11, 1999, and

April 30, 1999, in opposition to the proposed amendment. These

letters, along wi th other materials in support of and in

opposition to the proposed amendment were forwarded to the

Department in the adopted amendment package on June 30, 1999.

6. The City is an "affected person" under Section

163.3184(1)(a), Florida Statutes.

The County Charter

7. The Charter of Broward County took effect on January 1,

1975. (The current Charter submitted as Joint Exhibit 1 is

revised as of November 5, 2002).

8. With reference to land use planning, the County Charter

in Article VIII creates the Browar d County Planning Council

(Planning Council). The Planning Council is the local planning

agency for the Broward County Land Use Plan (BCLUP). The

Planning Council employs a staff, which includes professional

planners, gathers data, performs analyses of d ata, conducts

hearings, and recommends the adoption of land use ordinances by

the Broward County Commission. The Planning Council has final

authority over the approval, or recertification, of municipal

land use plans and amendments.

9. Under the Charter , the County has primary

responsibility for land use planning. Municipal comprehensive

plans must be in conformity with the BCLUP. Pursuant to section

11.01 of the Charter, County Ordinances relating to land use

planning prevail over municipal ordinance s.

Flexibility Units/Reserve Units

10. Broward County is a highly urbanized, fast - growing

county located in the southeastern portion of Florida. The

estimated 1998 population was 1,460,890, a 16.4 percent increase

over the 1990 census. In addition to th e County government,

there are 29 municipalities in the County.

11. In November 1977, Broward County first devised the

concept of allowing flexibility to municipalities in land use

planning by creating "flexibility units" (flex units) which

could be used by municipalities in land use planning.

12. The number of flex units is equal to the difference

between the density permitted on the BCLUP map and the density

permitted on the applicable municipal land use plan for any

particular parcel of land. Flex units are unique to Broward

County in the State of Florida.

13. The entire County is divided into 126 flexibility

zones. Each flexibility zone has a determined number of

available flex units based on the difference in densities

between the future BCLUP map and the municipal land use plan.

Within each of the 126 flexibility zones, designated on the

future BCLUP map, the appropriate municipality may rearrange and

revise land uses and densities, within limits specified in the

County Plan, without the neces sity of an amendment to the County

Plan. The total density within any particular flexibility zone

cannot exceed the density on the future BCLUP map.

14. The Administrative Rules Document contains rules and

procedures regulating flexibility zones and unit s.

Modifications to flexibility zones may be requested by the

municipality, the County, or the Planning Council, subject to

final approval by the Board of County Commissioners.

15. Municipal plan amendments revising land uses by use of

flex units within flexibility zones are subject only to

recertification by the Planning Council. Without the use of

flex units, the land use category for a particular piece of

property on the BCLUP map can be amended through an amendment to

the BCLUP.

16. "Reserve units " are additional permitted dwelling

units equal to 2 percent of the total number of dwelling units

permitted in a flexibility zone by the future BCLUP map.

Reserve units function similarly to flex units and may be

allocated by a municipality to rearrange and revise densities

within a flexibility zone. For the purpose of this Recommended

Order, reserve units shall be treated as flex units.

17. Hallandale contains flexibility zones 93 and 94.

Review of the Operation of Flexibility Rules

18. In 1996, in re sponse to state requirements for

periodic evaluations of county comprehensive plans, the planning

council staff, including Henry Sniezek of the County planning

staff, prepared the Broward County Land Use Plan "Flexibility

Rules" Study. After many hours sp ent obtaining data and

analyses, the staff recommended that flexibility rules include

more consideration of compatibility with surrounding land uses

and the impacts on public schools.

19. The 1996 report concluded: (1) that flexibility rules

generally continued to serve the purpose of allowing local

governments to address local planning issues and market

concerns; (2) that local governments have utilized the

flexibility rules consistent with their intent; and (3) that

flexibility rules should continue t o be available for local

government use.

20. The issue which is the subject of this proceeding, as

to whether flex units should continue to be authorized for land

planning uses in areas east of the Intracoastal Waterway to

increase density from 25 to 50 units per acre, was not

specifically within the scope of the 1996 report.

Coastal Densities

21. An April 24, 1998, version of the County land uses

plan map, which is apparently still in force, designated a

number of parcels throughout Broward County, e ast of the

Intracoastal Waterway on the Atlantic Ocean, as land use

category "H," for high density dwellings of 50 units per gross

acre.

22. Under the Broward County land use regulations, gross

acreage is calculated by including the property owned by th e

landowner and half of adjacent right - of - way.

23. In County - designated "H" parcels, developments of 50

units per acre are permitted, without the need to allocate flex

units to the parcels.

The Hallandale Ordinance

24. In 1998, Hallandale passed an O r dinance 1998 - 3,

creating a new Residential High Density - 2 Land Use Designation

(HD - 2), allowing developments up to 50 residential dwelling

units per acre, but only by the allocation of available flex

units.

25. On June 1, 1999, the Mayor of Hallandale was notified,

by letter, that the land use element, as amended to create the

HD - 2 category, was recertified by the Planning Council.

26. The recertification process constitutes a

determination that the municipal plan amendment substantially

conforms to th e County Plan.

27. The DCA found Hallandale's HD - 2 ordinance in

compliance.

28. The Regional Planning Council determines whether

comprehensive plan amendments comply with the 1995 Strategic

Regional Policy Plan.

29. The Planning Council approved t he City's HD - 2 category

as consistent with the Strategic Regional Policy Plan.

30. The intent of the ordinance was to promote and attract

redevelopment to Hallandale, particularly the beach area, where

many buildings date from the 1960's and 1970's, and may be

approaching the end of their useful lives.

31. The City used the HD - 2 for the redevelopment of a

property called Riviera Beach, which consisted of a

deteriorating motel, a restaurant, and offices. The City also

used the category to promote the redevelopment of the Ocean

Marine property site of another deteriorating motel with a yacht

club on the I ntracoastal W aterway, which is currently going

through the approval process.

32. The City's former Director of Growth Management,

Lorenzo Aghemo, op ined that with existing average density on the

beach in the range of 86 to 89 units an acre, redevelopment up

to only 25 dwelling units per acre is not economically

advantageous.

The Proposed Amendment

33. The Amendment that is the subject of this proce eding

began as a "housekeeping" amendment which was initially designed

to establish a uniform cap of 50 units per acre for the use of

flex units to be consistent throughout the County Plan.

34. During the process of meetings and public hearings

before the Planning Council and the County Commission, and in

response to comments and suggestions from members and staff as

well as comments from DCA, the Planning Council, the Broward

County League of Cities and various municipal governments, the

A mendment evolved as more particularly described below. The

A mendment ultimately became a mechanism to further goals

contained in a Governor's Commission report entitled "Eastward

Ho!" which was published in July 1996 and discussed in more

detail below. A primary focus o f the Eastward Ho! report is the

recommendation that development in S outheast Florida, including

Broward County, should be redirected into a corridor of land

that generally consisted of the land between CSX and Florida

railroads. The precise parameters of the Eastward Ho! corridor

are undefined and the corridor eventually was expanded beyond

the lands between the railroads; however, it is agreed that this

corridor contains many of the older municipal regions of the

County west of the Intracoastal Waterwa y.

35. In its adopted form, the portion of the County's

challenged amendment PCT 99 - 2, adopted through Ordinance 1999 -

26, implements several changes which encourage the redevelopment

of the County's urban corridor, and redirects development away

from the Coastal High Hazard Area (CHHA) as well as away from

the environmentally sensitive western areas of the County.

36. With respect to the use of flex units, the challenged

A mendment establishes four areas ("Areas A - D") within the

County. Each area is give n its own designation regarding the

use of flex units.

Area A

37. This area generally encompasses all land west of the

Urban Infill Area line. It is treated differently from the

other areas for planning purposes because of its environmentally

sensitive lands. Included in this area are portions of the

Florida Everglades, other wetlands and well fields.

38. In recognition of the environmental features of this

area, the Amendment restricts the use of flexibility units to a

maximum of 25 units an acre and helps to minimize urban sprawl.

Area B

39. This area is defined as all land east of the

Intracoastal Waterway. It lies entirely within the County’s

CHHA, which includes the land and water eastward of the Atlantic

Intracoastal Waterway to the Atla ntic Ocean.

40. CHHAs are areas that are prone to damage from flood

and wind from a hurricane event. This vulnerability to

hurricanes presents special planning issues which led the County

to limit the use of flexibility units to a maximum of 25 units

an acre.

41. In order to better protect human life and property,

the County not only places a limit on flexibility units in this

area, but encourages development and redevelopment in other

portions of the County outside the CHHA.

Area C

42. This ar ea generally comprises all of the land east of

the Urban Infill Area Line and West of the Intracoastal

Waterway. It includes many of the County’s older cities, where

there is the greatest need for redevelopment. This area

generally includes the Eastwood Ho! corridor.

43. In order to encourage redevelopment in this area, the

County continues to allow local governments to use up to 50

flexibility units an acre.

Area D

44. This area contains pocket areas that lie west of the

Urban Infill area. Although the Amendment restricts the use of

flexibility units to a maximum of 25 units an acre in this area,

no compatibility review is required.

45. At this time, there are two areas with this

designation. Both of these pocket areas lie close to the Urban

I nfill Area.

Application to Hallandale

46. Most of Hallandale lies within Area C. A small potion

of the City consisting of the beach east of the Intracoastal

Waterway is in A rea B and also within the CHHA. Under the

challenged A mendment the City is li mited to a maximum allowable

density, with the allocation of flex units, to 25 units per

acre, because the area is east of the Intracoastal Waterway.

For purposes of this proceeding, the objectionable effect of the

challenged A mendment is that it prohibit s the use of flex units

to that small portion of Hallandale that is east of the

I ntracoastal W aterway to attain densities greater than 25 units

per acre.

47. Lorenzo Aghemo, formerly Hallandale's Director of

Growth Management, testified that the County's challenged

A mendment is inconsistent with the following elements of the

County's Plan:

Objective 8.03.00, on discouraging urban

sprawl by directing development to areas

with existing facilities and services;

Goal 13.00.00, on maximizing

intergovernmental coordination and

cooperation;

Policy 13.01.08, on the Planning Council's

responsibility to ensure consistency, as

compared to its decisions to approve 50

units and than a few months later 25 units

per acre;

Goal 17.00.00, directing growth to

identified urban infill, in areas of

existing infrastructure and services to

promote redevelopment;

Policy 17.02.02, on urban infill and

redevelopment to promote economic

development and increase housing

opportunities.

48. Mr. Aghemo testified that the County's O rdinance,

limiting the flex units to 25 per acre is also inconsistent with

the following statutes:

Section 163.3177(11)(c) - on maximizing the

use of existing facilities and services

through redevelopment and urban infill

development;

Section 187.201(15)( a) and (b) - on

directing development to areas which have,

in place, land and water resources, fiscal

abilities and service capacity;

Section 187.201(16)(b)5. - on allowing local

government flexibility to determine and

address urban priorities.

49. Henr y Sniezek testified that the proposed Amendment

viewed in its entirety, is consistent with the above - cited

provisions.

Evolution of the Proposed Amendment

50. On January 15, 1999, the County Planning Council's

Land Use/Traffic Ways Committee discussed, for the first time,

an early version of a County amendment to limit the density

allowed from the use of flex units. At that time, the staff

recommended that flex units should result in densities no higher

than 50 units per acres.

51. As stated above, th e maximum of 50 units an acre,

recommended in 1999, was intended for "housekeeping" purposes to

establish the same cap for flex units consistently referenced

throughout the plan.

52. Robert Daniels, the principal planner for the Regional

Planning Council , first recommended that the coastal barrier

island be excluded from certain flex unit allocations in a

letter to Mr. Sniezek, on January 27, 1999.

53. Mr. Daniels testified that his concern was based on

the Strategic Regional Plan goal and policy of red ucing

densities on coastal barrier islands, the beaches and areas east

of the Intracoastal Waterway.

54. The Broward League of Cities Technical Advisory

Committee, composed of planners from various municipalities in

the County, also recommended to the Cou nty Commission that it

attempt to direct growth to the area between the Everglades on

environmentally sensitive west and the CHHA. That policy is

included in the County's "Eastward Ho" voluntary initiative.

55. The Broward County urban infill area has a western

boundary that coincides with the western boundary of the

challenged amendment but extends east to the Atlantic Ocean.

56. The A mendment, as adopted, ultimately excluded the

area east of the Intracoastal Waterway within the urban infill

area, as designated on the County land use map, from the maximum

flex unit uses without County Commission approved.

Eastward Ho!

57. "Eastward Ho! Revitalizing Southeast Florida’s Urban

Core" is a 1996 planning initiative of the Governor’s Commission

for a Sust ainable South Florida. It was developed by the South

Florida Regional Planning Council in conjunction with the

Treasure Coast Regional Planning Council.

58. Eastward Ho! promotes urban infill and redevelopment

in order to revitalize older communities. Among its other goals

is to direct development away from environmentally sensitive

lands, prime agricultural areas, and water resources. The

Eastward Ho! initiative attempts to capture some of the

projected growth in the western and CHHA and redirect i t to the

urbanized areas.

59. The boundaries for the Eastward Ho! initiative include

portions of Palm Beach County, Broward County and Miami - Dade

County. Its boundaries are not precisely defined and have

evolved over time. The original study area enco mpassed the area

between the Florida East Coast Railroad and the CSX Railroad.

As the program progressed, it became apparent that additional

areas should be included. This larger Eastward Ho! area

includes the lands lying east to US 1 and west to the Pal metto

Expressway, the Florida Turnpike, State Road 7 and Military

Trail. The Amendment Area C is generally compatible with the

Eastward Ho! boundaries in Broward County.

60. Area B does not lie within the Eastward Ho!

boundaries.

61. In its tota lity, the Amendment advances the purposes

of Eastward Ho! by redirecting growth towards already urbanized

areas and away from the environmentally sensitive areas in the

western portion of the County and the CHHA.

62. The Eastward Ho! initiative is adv anced by the

Amendment in that the proposed flexibility units scheme promotes

the goals of directing some future development away from

environmentally sensitive areas and the CHHA and redirects that

future development to the urban infill areas. As the Ame ndment

is consistent with, and furthers, Eastward Ho! goals, the

contents of the document entitled "Eastward Ho! Revitalizing

Southeast Florida's Urban Core" constitute relevant and

appropriate data and analysis which supports the Amendment.

63. In F ebruary 1999, a report was issued by Rutgers

University, Center for Urban Policy Research in which the

Eastward Ho! program is described and analyzed. This report was

prepared for the Florida Department of Community Affairs and the

U.S. Environmental Prot ection Agency. This document is entitled

"Eastward Ho! Development Futures: Paths to More Efficient

Growth in Southeast Florida." Included in this report are data

and analysis contrasting projected Eastward Ho! and non - Eastward

Ho! development patterns.

64. In this report, it is concluded that directing some

residential development growth from the hurricane hazard area

and the western areas into the Eastward Ho! areas in the next

twenty - five years will save 52,856 acres of prime farmland and

13,88 7 acres of fragile environmental lands. It is also

expected that housing costs would drop approximately 2.3

percent.

65. The report also concludes that by directing some

future development over a 25 - year period into the Eastward Ho!

areas, the follow ing savings in infrastructure costs can be

gained: $1.54 billion dollars in local road costs, $62 million

in state road costs, $157 million in water capital costs, and

$135.6 in sewer capital costs.

66. As the Amendment helps implement the goals o f Eastward

Ho!, it reasonably can be concluded that this report contains

data and analysis that supports the Amendment.

Local Mitigation Strategy

67. Broward County’s emergency management staff has

prepared a local mitigation strategy (LMS), which is th e

County’s plan to mitigate the effects of potential natural

disasters, especially hurricanes.

68. In this document, the County identifies the trend of

conversions of living units in the coastal hurricane evacuation

zone from seasonal to year - round us e, increasing the number of

residents in the coastal hurricane evacuation zones. This area

is basically the same as the portion of the County described in

the Amendment as Area B.

69. In order to minimize the impact of natural disasters,

the LMS recomm ends discouraging additional public expenditures

to expand or improve infrastructure in the CHHA.

70. The Amendment implements these recommendations by

providing an incentive for directing some future growth away

from the CHHA to Area C. Accordingly, t he LMS constitutes data

and analysis which supports the Amendment.

Consistency with the Broward County Comprehensive Plan

71. The City contends that the Amendment is inconsistent

with the following provisions of the Broward County

Comprehensive Plan: Objective 8.03.00, Goal 13; Policy

13.01.08, Goal 17; and Policy 17.02.02. Those provisions are

part of the BCLUP.

72. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN

SERVICES" and reads:

Discourage urban sprawl and encourage a

separation of urba n and rural uses by

directing new development into areas where

necessary regional and community facilities

and services exist.

73. The BCLUP does not define "urban sprawl."

74. The Department of Community Affairs has a rule that

defines "urban sprawl" as meaning:

. . . urban development or uses which are

located in predominantly rural areas, or

rural areas interspersed with generally low -

intensity or low density urban uses, and

which are characterized by one or more of

the following conditions: (a) The premature

or poorly planned conversion of rural land

to other uses; (b) The creation of areas of

urban development or uses which are not

functionally related to land uses which

predominate the adjacent area; or (c) The

creation of areas of urban d evelopment or

uses which fail to maximize the use of

existing public facilities or the use of

areas within which public services are

currently provided....

Rule 9J - 5.003(134), Florida Administrative Code.

75. Rule 9J - 5.006(5), Florida Administrative Co de,

provides guidance on how to ensure that plans and plan

amendments are consistent with applicable requirements

pertaining to the discouragement of urban sprawl. Rule 9J -

5.006(5)(a), Florida Administrative Code. The rule contains

sections on primary in dicators, land use evaluations, and

development controls, each of which includes many factors to be

carefully considered.

76. The Amendment provides incentives for development in

Area C, which is the older urban corridor of the County.

Although som e of it is also urban, Area B lies in the CHHA and

the data and analysis support its disparate treatment.

77. Taken as a whole, the Amendment has the effect of

discouraging urban sprawl by promoting infill in older downtown

areas (Area C) and directing development away from the

environmentally sensitive areas (Areas A and B) and areas with

inefficient land use patterns (Area A) such as the western areas

of the County.

78. Goal 13 and Policy 13.01.08 are located in the section

of the plan entitled "IN TERGOVERNMENTAL COORDINATION." They

read as follows:

GOAL 13.00.00

MAXIMIZE INTERGOVERNMENTAL COORDINATION

AND COOPERATION AMONG STATE, REGIONAL, AND

LOCAL GOVERNMENT ENTITIES.

POLICY 13.01.08

The Broward County Planning Council shall continue to

coord inate, cooperate and share information and

services with all City and County planning offices and

all local government agencies in order to ensure

consistency and compatibility among the Broward County

Land Use Plan and the other elements of the Broward

Co unty Comprehensive Plan, as well as municipal

comprehensive plans.

79. The Amendment does not modify the intergovernmental

coordination provisions. While the Amendment restricts the

effect of Hallendale Ordinance 1998 - 2 in that small portion of

the Cit y that is east of the Intracoastal Waterway, that

restriction alone does not support a finding that the Amendment

as a whole is inconsistent with Policy 13.01.08.

80. Moreover, the County complied with the letter and

spirit of Goal 13.00.00 and Policy 1 3.01.08 in developing and

adopting this Amendment. It kept the municipalities informed of

the Amendment by providing written drafts and coordinated with

entities including the Broward County League of Cities, the

South Florida Regional Planning Council, t he Broward County

Planning Council, and its technical advisory committee.

Suggestions and comments from the South Florida Regional

Planning Council and the League of Cities were a major influence

in the ultimate version of the adopted Amendment.

81. G oal 17.00.00 and Policy 17.02.02 are contained in the

P lan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT

AREAS AND DOWNTOWN REVITALIZATION." They read as follows:

GOAL 17.00.00

DIRECT GROWTH TO IDENTIFIED URBAN INFILL,

URBAN REDEVELOPMENT AND DOWNTOWN

REVITALIZATION AREAS WITHIN BROWARD COUNTY

IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE

DEVELOPMENT PRESSURES ON RURAL LANDS,

MAXIMIZE THE USE OF EXISTING PUBLIC

FACILITIES AND CENTRALIZE COMMERCIAL,

GOVERNMENTAL, RETAIL, RESIDENTIAL AND

CULTUR AL ACTIVITIES.

POLICY 17.02.02

Local land use plans should include policies to

provide for adequate housing opportunities necessary

to accommodate all segments of present and future

residents of identified urban infill, urban

redevelopment and downt own revitalization area(s).

82. In its totality, the Amendment is not inconsistent

with Goal 17.00.00 and may further it. By limiting development

in the CHHA and the western portions of the County, the

Amendment effectively encourages significant futur e growth to

the urban infill areas and older downtown areas. The area

encouraged for growth under this goal and policy is consistent

with Area C, and targeted for the densest development and

redevelopment.

83. The Amendment is not inconsistent with Policy

17.02.02. Area B as a Coastal area is not particularly

economically suitable for affordable housing. By encouraging

development away from the CHHA, the Amendment may promote a

wider range of housing opportunities through redevelopment in

the Eastw ard Ho! corridor. Moreover, the Amendment provides

that applications of flex units for affordable housing, Regional

Activity Centers and special residential facilities are exempt

from the Amendment’s restrictions in specified situations should

affordable housing units be developed in Area B.

84. Even if the Amendment were construed to be

inconsistent with any of the above - discussed plan provisions,

there are several other portions of the P lan that the Amendment

furthers by encouraging development away from the CHHA and the

environmentally sensitive areas in the western portion of the

County.

85. Those provisions include Objective 9.03.00, which

requires developing and implementing land use controls to

protect and enhance the County's beaches, rivers, and marine

resources, and Policy 9.05.09, which requires considering the

impact land use plan amendments have on wetland resources and

minimizing those impacts to the maximum extent practicable.

86. Objective 9.07.00 reads:

Protect identified floodplai ns and areas subject to

seasonal or periodic flooding.

87. The Amendment advances this objective by limiting

development in the CHHA (Area B), which is subject to storm

surge, as well as limiting development in the western portion of

the County (Area A) , which has many flood - prone areas.

Consistency with Section 163.3177(11)(c)

88. The City alleges that the Amendment is inconsistent

with Section 163.3177(11)(c), Florida Statutes, which reads:

It is the further intent of the Legislature

that local gov ernment comprehensive plans

and implementing land development

regulations shall provide strategies which

maximize the use of existing facilities and

services through redevelopment, urban infill

development, and other strategies for urban

revitalization.

89. To the extent this statute is a substantive compliance

criteria, the Amendment is consistent with this statute. By

promoting development in Area C, the Amendment will help achieve

the goal of maximizing existing facilities through

redevelopment, urba n infill and urban revitalization.

Consistency with the South Florida Regional Policy Plan

90. The Strategic Regional Policy Plan for South Florida

(SFRPP) is the regional policy plan adopted by the South Florida

Regional Planning Council. It is adopte d by reference in Rule

29J - 2.009, Florida Administrative Code.

91. The Amendment is consistent with provisions in the

SFRPP, particularly those related to land use, public

facilities, natural resources, and emergency management.

92. The Amendment is consistent with Strategic Regional

Goal 2.1, which requires directing development and redevelopment

to areas least exposed to coastal storm surges and where

negative impacts on the environment are minimal. The Amendment

is consistent with several of Go al 2.1's implementing policies,

including Policies 2.1.2 (reducing allowable densities on

barrier islands and in the Category 1 Hurricane Evacuation

Area), 2.1.3 (restricting development, redevelopment, and public

facility construction in the CHHA), and 2. 1.4 (directing

development away from environmentally sensitive lands). The

Amendment also furthers Strategic Regional Goal 7.1 by directing

future development away from the areas most vulnerable to storm

surges. Viewed in its entirety, the Amendment is consistent

with the SFRPP construed as a whole.

Consistency with the State Comprehensive Plan

93. The City contends that the Amendment is inconsistent

with the following provisions in the State comprehensive plan:

Sections 187.201(15)(a) and (b) and 187. 201(16)(b)(5), Florida

Statutes. Goal (15)(a) recognizes the importance of preserving

natural resources and requires development to be directed into

areas which can accommodate growth in an environmentally

sensitive manner. Implementing P olicies (b)1., 2 ., and 5.

requires the encouragement of efficient development, the

separation of urban and rural uses, and the consideration of

impacts on natural resources and the potential for flooding in

land use planning. As discussed in earlier findings, the

Amendme nt is consistent with such directives.

94. The Amendment furthers Goal (15)(a) and Policies (b)

1., 2., and 5.

95. Policy (16)(b)(5) reads:

Ensure that local governments have adequate

flexibility to determine and address their

urban priorities with in the state urban

policy.

96. The Amendment coordinates the policy for

prioritization of urban development. Development is promoted in

areas away from the CHHA and environmentally sensitive lands in

the west. This is accomplished through the use of a cap on

flexibility units. Local governments may choose to utilize less

than the full extent of their available flexibility units or use

alternative mechanisms to achieve higher densities.

97. The use of flexibility units is only one method for

contro lling densities. If a local government needs more density

to address its planning goals than is allowed by the Amendment,

it may request a Future Land Use Map amendment. Additionally,

local governments may avoid the Amendment's limits by maximizing

densi ty by the use of affordable housing developments, Regional

Activity Centers or special residential facilities.

98. The Amendment is not inconsistent with Policy

(16)(b)(5). The Amendment is consistent with the State

Comprehensive Plan construed as a whole.

CONCLUSIONS OF LAW

Jurisdiction

99. The Division of Administrative Hearings has

jurisdiction to conduct a hearing on the subject matter of this

proceeding. Sections 120.569, 120.57(1), and 163.3184(9),

Florida Statutes.

Standing

100 . Under Section 163.3184(9), Florida Statutes, only an

"affected person" may file a petition to challenge a plan

Amendment found by the Department to be "in compliance." The

definition of "affected person" is contained in Section

163.3184(1)(a), Florida Statutes. That definition includes

persons owning property within the boundaries of the local

government. It also includes a requirement of having "submitted

oral or written comments, recommendations, or objections to the

local government" between the pl an amendment's transmittal

hearing and the adoption. Section 163.3184(1)(a), Florida

Statutes.

101. The City is an "affected person" within the meaning

of Section 163.3184(1)(a) and has standing to be a party in this

proceeding.

Burden of Proof

102. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceeding. Young v. Department of Community

Affairs , 625 So. 2d 831 (Fla. 1993).

103. Section 163.3184(9), Flor ida Statutes, provides that

if the Department issues a Notice of Intent to find the

Amendment "in compliance," then the burden of proof is on the

person challenging the plan amendment.

104. "In compliance" means consistent with the

requirements of Se ctions 163.3177, 163.3178, 163.3180, 163.3191,

and 163.3245, Florida Statutes; the State Comprehensive Plan;

the appropriate strategies regional policy plan; and Chapter 9J -

5, Florida Administrative Code. Section 163.3184(1)(b), Florida

Statutes. Consist ency with the state and regional plans is

based on construing those plans as a whole. Section

163.3177(10)(a), Florida Statutes.

105. Because the Department initially published a Notice

of Intent to find the P lan Amendment "in compliance," the

Amen dment must be determined to be "in compliance" if the local

government’s determination of compliance is fairly debatable.

Section 163.3184(9), Florida Statutes. Petitioner has the

burden of demonstrating beyond fair debate that the Amendment is

not "in c ompliance."

106. The term "fairly debatable" is not defined in Chapter

163, Florida Statutes, or in Chapter 9J - 5, Florida

Administrative Code. The fairly debatable standard under

Chapter 163 is equivalent to common law "fairly debatable"

standard ap plicable to decisions of local governments acting in

a legislative capacity. As stated in Martin County v. Yusem ,

690 So. 2d 1288, 1295 (Fla. 1997):

The 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.

Quoting from City of Miami Beach v. Lachman , 71 So. 2d 148, 152

(Fla. 1953), the Court stated further:

An ordinance may be said to be fairly

debatable when for any reason it is open to

disput e or controversy on grounds that make

sense or point to a logical deduction that

in no way involves its constitutional

validity.

690 So. 2d at 1295. Petitioner has not demonstrated beyond fair

debate that the Amendment is not "in compliance."

Section 163 .3177(11)(c)

107. The City alleged that the Amendment is inconsistent

with Section 163.3177(11)(c), Florida Statutes, which reads:

It is the further intent of the Legislature

that local government comprehensive plans

and implementing land development

regulations shall provide strategies which

maximize the use of existing facilities and

services through redevelopment, urban infill

development, and other strategies for urban

revitalization.

108. Although consistency with Section 163.3177 is

in cluded within the definition of "in compliance," that

particular subsection does not create any legal criterion. As

this statute simply expresses legislative intent, it is

construed as not providing a substantive compliance criterion.

A statement of legi slative intent provides guidance to an

agency, but does not create separate legal rights or duties.

Department of Health and Rehabilitative Services v. Doe , 659 So.

2d 697 (Fla. 1st DCA 1995); St. Joe Paper Co. v. Department of

Community Affairs , 657 So. 2d 27 (Fla. 1st DCA 1995).

Data and Analysis

109. The City contends that the Amendment is not supported

by adequate data and analysis as required by Section

163.3177(8), Florida Statutes; Rule 9J - 11.007(1), Florida

Administrative Code; and Martin County v . Department of

Community Affairs , 771 So. 2d 1268 (Fla. 4th DCA 2000). With

regard to data and analyses, Rule 9J - 5.005(2) provides in

pertinent part:

2) Data and Analyses Requirements.

(a) All goals, objectives, policies,

standards, findings and conc lusions within

the comprehensive plan and its support

documents, and within plan amendments and

their support documents, shall be based upon

relevant and appropriate data and the

analyses applicable to each element. To be

based on data means to react to i t in an

appropriate way and to the extent necessary

indicated by the data available on that

particular subject at the time of adoption

of the plan or plan amendment at issue.

Data or summaries thereof shall not be

subject to the compliance review process.

However, the Department will review each

comprehensive plan for the purpose of

determining whether the plan is based on the

data and analyses described in this chapter

and whether the data were collected and

applied in a professionally acceptable

manner. All tables, charts, graphs, maps,

figures and data sources, and their

limitations, shall be clearly described

where such data occur in the above

documents. Local governments are encouraged

to use graphics and other techniques for

making support informati on more readily

useable by the public.

(b) This Chapter shall not be construed

to require original data collection by local

government; however, local governments are

encouraged to utilize any original data

necessary to update or refine the local

gover nment comprehensive plan data base so

long as methodologies are professionally

accepted.

(c) Data are to be taken from

professionally accepted existing sources,

such as the United States Census, State Data

Center, State University System of Florida,

re gional planning councils, water management

districts, or existing technical studies.

The data used shall be the best available

existing data, unless the local government

desires original data or special studies.

Where data augmentation, updates, or special

studies or surveys are deemed necessary by

local government, appropriate methodologies

shall be clearly described or referenced and

shall meet professionally accepted standards

for such methodologies. Among the sources

available to local governments are those

identified in "The Guide to Local

Comprehensive Planning Data Sources"

published by the Department in 1989. Among

the sources of data for preliminary

identification of wetland locations are the

National Wetland Inventory Maps prepared by

the U.S. Fish and Wildlife Service.

110. During the process of refining the Amendment, the

County planning staff relied on data and analysis from a

multitude of professionally prepared sources, including Eastward

Ho!, the Rutgers study, and the Local Mitigation S trategy, as

well as data and analysis provided by the Regional Planning

Council. The planning staff, Planning Council, and County

Commission further considered comments and data from interested

parties. There is no requirement in either the statute or rul e

that data and analysis be originally collected by the County,

and the record reflects that the Amendment is supported by

adequate data and analysis.

The Plan Amendment is "In Compliance"

111. The City failed to prove beyond fair debate that the

Am endment is not supported by relevant and appropriate data and

analysis.

112. The City failed to prove beyond fair debate that the

Amendment is inconsistent with any provision in the Broward

County Comprehensive Plan.

113. The City failed to p rove beyond fair debate that the

Amendment is inconsistent with the South Florida Regional Policy

Plan construed as a whole.

114. The City failed to prove beyond fair debate that the

Amendment is inconsistent with the State Comprehensive Plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be issued concluding that

the Plan Amendment adopted by Broward County in Ordinance No.

1999 - 26 is "in compliance" as defined in Chapter 16 3, Part II,

Florida Statutes, and the rule promulgated thereunder.

DONE AND ENTERED this 12th day of June, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

RICHARD A. HIXSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2003.

COPIES FURNISHED :

Mark Goldstein, Esquire

City of Hallandale

400 South Federal Highway

Hallandale, Florida 33009

Craig Varn, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399 - 2100

Jose R. Gonzalez, Esquire

Broward County Attorney's Office

115 South Andrews Avenue

Governmental Center, Suite 423

Fort Lauderdale , Florida 33301

Colleen M. Castille, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399 - 2100

David Jordan, Acting General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.