Payne v. City of Miami

Full title: Herbert PAYNE; Ann Stetser; The Durham Park Neighborhood Association, a…

Court: District Court of Appeal of Florida, Third District

Date published: Dec 8, 2010

52 So. 3d 707 (Fla. Dist. Ct. App. 2010)

Opinion

No. 3D06-1799.

December 8, 2010.

Appeal from the District Court of Appeal, 913 So.2d 1260, reversed and remanded. While that action was pending, the Circuit Court, Miami-Dade County, Norman S. Gerstein, J.

Andrew W.J. Dickman, Naples, for appellants.

Greenberg Traurig and David C. Ashburn, Tallahassee; Greenberg Traurig and Elliot H. Scherker and Lucia Dougherty and Paul R. Lipton, Miami, and Pamela A. DeBooth, for appellee Balbino Investments, LLC; Jorge L. Fernandez, City Attorney, and Rafael Suarez-Rivas, Assistant City Attorney, for appellee City of Miami.

Before GERSTEN, CORTIÑAS, and ROTHENBERG, JJ.

On Balbino Investments, LLC's Motions for Rehearing

ROTHENBERG, J.

The City of Miami ("City") and Balbino Investments, LLC ("Balbino") filed motions for Rehearing and Rehearing En Banc. The City subsequently withdrew its motions. Balbino's Motion for Rehearing is denied. We, however, withdraw this Court's opinion issued on August 8, 2007, and issue the following opinion in its stead to address the dissenting opinion to the denial of the Motion for Rehearing En Banc.

Balbino owns a parcel of land located on the north side of the Miami River at approximately N.W. 18th Avenue, Miami, Florida, and which was being used as a commercial boatyard and marina. Balbino applied for and obtained from the City a small scale amendment to the Future Land Use Map ("FLUM Amendment") of the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan"), changing the land use designation of the property from Industrial and General Commercial to Restricted Commercial. Balbino also applied for and obtained a zoning change from SD-4.2 Waterfront Industrial to C-1 Restricted Commercial and a Major Use Special Permit ("MUSP"), thereby allowing Balbino to construct a multi-family development project with a maximum density of 150 units per acre on the property. The ordinance approving the FLUM Amendment, Ordinance No. 12550, was adopted by the City Commission on June 24, 2004. The City approved the rezoning of the property and the MUSP on the same day. The approved development on this water-front parcel is for three high-rise buildings consisting of 1,073 condominium units with a median price of $200,000 to $225,000 per unit.

The following parties filed a petition with the Division of Administrative Hearing ("DOAH"), challenging the ordinance that approved the FLUM Amendment: Herbert Payne ("Payne"), a boat captain who owns and operates one of the largest tugboat companies on the Miami River and who relies exclusively on commercial marine business on the Miami River for his livelihood; Ann Stetser, a local resident; The Durham Park Neighborhood Association, Inc. ("Durham Park"), a non-profit neighborhood association composed of approximately ninety homeowners and businesses located in the Durham Park area, which is located across the Miami River and to the west of Balbino's property; and The Miami River Marine Group, Inc. ("Marine Group"), a trade association representing marine and industrial businesses along the Miami River (collectively, "the appellants"). This petition was dismissed as untimely filed. On appeal, this Court reversed and remanded, finding that the petition was timely filed. Payne v. City of Miami, 913 So.2d 1260 (Fla. 3d DCA 2005) ( "Payne I").

Meanwhile, the circuit court dismissed Marine Group from the petition, finding that it lacked standing. That decision, which will be addressed more fully in this opinion, was also reversed by this Court in Payne v. City of Miami 927 So.2d 904 (Fla. 3d DCA 2005) ( "Payne II").

On remand, the appellants sought leave to amend the petition to include arguments regarding additional provisions contained in the Comprehensive Plan. Balbino objected, arguing that the provisions the appellants sought to include pertained to land development regulations, and therefore, did not apply to the challenged FLUM Amendment which pertains to land use.

The administrative law judge ("ALJ") agreed with Balbino, and he denied the appellants' motion for leave to amend the petition with allegations arising from those provisions. After a hearing, the ALJ issued a Recommended Order, which was subsequently adopted by the State of Florida Department of Community Affairs ("the Department"), and to which the appellants now appeal.

Because the appellants are challenging agency action, our review is governed by section 120.68, Florida Statutes (2006), and Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, 788 So.2d 204 (Fla. 2001). The relevant provisions of section 120.68 provide:

(7) The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when it finds that:

(a) There has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts;

(b) The agency's action depends on any finding of fact that is not supported by competent, substantial evidence . . .;

(c) The fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure;

(d) The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action; or

(e) The agency's exercise of discretion was:

1. Outside the range of discretion delegated to the agency by law;

2. Inconsistent with agency rule;

3. Inconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or

4. Otherwise in violation of a constitutional or statutory provision[.]

(Emphasis added).

Amendments to a local government's comprehensive plan are legislative in nature and, therefore, are subject to the fairly debatable standard of review. Martin County v. Yusem, 690 So.2d 1288, 1295 (Fla. 1997). Thus, where reasonable persons could differ as to the propriety of the planning action, it should be affirmed. Id.; see also Coastal Dev., 788 So.2d at 206 (applying the fairly debatable standard of review to small scale development amendments). However, because the future land use map of a comprehensive plan represents a local government's fundamental policy decisions, any proposed change to that established policy is a policy decision that requires that those policies be reexamined. Coastal Dev., 788 So.2d at 209.

It seems to us that all comprehensive plan amendment requests necessarily involve the formulation of policy, rather than its mere application. Regardless of the scale of the proposed development, a comprehensive plan amendment request will require that the governmental entity determine whether it is socially desirable to reformulate the policies previously formulated for the orderly future growth of the community. This will, in turn, require that it consider the likely impact that the proposed amendment would have on traffic, utilities, other services, and future capital expenditures, among other things.

Id. at 209 (quoting with approval City of Jacksonville Beach v. Coastal Dev. of N. Fla., Inc., 730 So.2d 792, 794 (Fla. 1st DCA 1999)).

In applying these standards, the City Commission recognized: the importance of the Miami River to the marine industry and the City; the need to strike a balance between supporting and protecting this valuable resource; that each conversion from industrial to residential use on the river increases the pressure on land owners who support the marine industry; that a moratorium on the river should be instituted in order to properly address and develop a comprehensive plan on how development should proceed on the river; and that the City was "bordering upon letting the development on the Miami River get out of control," and the "need to apply the brakes to this before it happens." Nonetheless, the City Commission approved this FLUM Amendment without addressing the fundamental policy considerations and ramifications of its decision, leaving consideration of these issues for another day.

After performing a careful and thorough review of the record, we conclude that reversal of the "agency's action" is required for failure to comply with the requirements of section 120.68. Specifically, many of the ALJ's findings are unsupported by competent substantial evidence; the ALJ incorrectly interpreted the law and failed to follow existing law; and the ALJ failed to examine the FLUM Amendment's impact on and consistency with other fundamental policy decisions contained in the Comprehensive Plan and the Miami River Master Plan. We additionally conclude that had the correct law been applied to the facts that are supported by competent substantial evidence, it would compel a finding that the Balbino FLUM Amendment is inconsistent with both the Comprehensive Plan and the Miami River Master Plan.

STATUTORY REQUIREMENTS

Section 163.3161, Florida Statutes (2004), which is known as the Local Government Comprehensive Planning and Land Development Regulation Act, was enacted to strengthen local governments' role in the establishment and implementation of comprehensive planning to control future development. Section 163.3161 provides, in part:

(5) It is the intent of this act that adopted comprehensive plans shall have the legal status set out in this act and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act.

. . . .

(7) The provisions of this act in their interpretation and application are declared to be the minimum requirements necessary to accomplish the stated intent, purposes, and objectives of this act; to protect human, environmental, social, and economic resources; and to maintain, through orderly growth and development, the character and stability of present and future land use and development in this state.

(Emphasis added).

Section 163.3177(2) provides in pertinent part that "[t]he several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be financially feasible . . ." Additionally, section 163.3177(6), provides that the comprehensive plan shall include certain elements, including:

(a) A future land use plan element designating proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land. . . . For coastal counties, the future land use element must encourage the presentation of recreational and commercial working water-fronts as defined in s. 342.07. . . .

Amendments to the comprehensive plan may not be made more than two times during any calendar year except: (a) in the case of an emergency, (b) when the amendment is directly related to a proposed development of regional impact, or (c) if the amendment is for a small scale development. § 163.3187(1)(a)-(c), Fla. Stat. (2004). The Balbino FLUM Amendment was sought and granted as a small scale development pursuant to section 163.3187(1)(c).

Section 163.3187(1)(c), provides an exception to the time limitation for small scale amendments to comprehensive plans if:

1. The proposed amendment involves a use of 10 acres or fewer and:

. . . .

f. If the proposed amendment involves a residential land use, the residential land use has a density of 10 units or less per acre, except that this limitation does not apply to small scale amendments described in sub-sub-sub-paragraph a.(?) that are designated in the local comprehensive plan for urban infill, urban redevelopment, or downtown revitalization as defined in s. 163.3164, urban infill and redevelopment areas designated under s. 163.2517, transportation concurrency exception areas approved pursuant to s. 163.3180(5), or regional activity centers and urban central business districts approved pursuant to s. 380.06(2)(e).

Thus, before the Balbino small scale FLUM Amendment could be approved without complying with the requirements normally imposed, it was required to demonstrate that the amendment involved property that is ten acres or less and the proposed amendment involved a residential use with a density of ten units or less per acre or that the property is designated in the Comprehensive Plan as urban infill, urban redevelopment, or downtown revitalization.

We note that the ALJ and the City incorrectly applied the 2005 version of this statute.¹ The density exception does not apply as the density for the proposed development is over ten units per acre, and the current Industrial classification, which pertains to nearly all of the property contained in this small scale FLUM Amendment, permits no residential uses. Thus, the exception the Balbino FLUM Amendment relies on is that the subject property is located in an urban infill zone. The Amendment is able to rely on the "urban infill" exception because the City has declared the entire City an urban infill site, and is thus able to bypass obtaining State approval and State oversight for all small scale amendments to its Future Land Use Map.

1 The 2005 version of this statute provides a further exception where the future land use category allows a maximum residential density allowable under the existing land use category, an exception which does not pertain to the Balbino FLUM Amendment.

In addition to the statutes regulating land use, requiring the enactment of comprehensive planning to control future development and providing a regulatory scheme for amendments to comprehensive plans, is the City's Zoning Code.

THE CITY'S ZONING CODE

Article 6 of the City of Miami Zoning Code (2004) ("City's Zoning Code") provides for the creation of SD Special Districts to protect certain areas or districts within the City. Article 6, Section 600, provides in pertinent part as follows:

Section 600. Intent.

It is the intent of these regulations to permit creation of SD Special Districts:

(a) In general areas officially designated as having special and substantial public interest in protection of existing or proposed character, or of principal views of, from, or through the areas[.]

. . . .

It is further intended that such districts and the regulations adopted for them shall be in accord with, and promote the policies set out in, the Miami Comprehensive Neighborhood Plan and other officially adopted plans in accordance therewith.

City of Miami Zoning Code, Art. 6, § 600 (emphasis added). "The regulations shall be designed to promote the special purposes of the district, as set out in the statement of intent." Id. at § 600.4.3. Article 6, section 604 of the City's Zoning Code specifically provides for the creation of a waterfront industrial district to regulate the waterfront property along the Miami River, and states, in pertinent part, as follows:

Sec. 604. SD-4 Waterfront Industrial District.

Sec. 604.1. Intent.

This district designation is intended for application in areas appropriately located for marine activities, including industrial operations and major movements of passengers and commodities. In view of the importance of such

activities to local economy and the limited area suitable and available for such activities, it is intended to limit principal and accessory uses to those reasonably requiring location within such districts, and not to permit residential, general commercial, service, office or manufacturing uses not primarily related to waterfront activities except for office uses in existing office structures. For the purposes of section 3(mm) of the City of Miami Charter, this district shall be construed as an industrial district.

Sec. 604.4. Principal uses and structures. 604.4.1. Permitted principal uses and structures.

1. Piers, wharves, docks, and railroad service to related loading, storage or distribution facilities.

2. Freight terminals; facilities for warehousing and storage, packing, packaging and crating of materials from or for marine shipment; assembly and distribution facilities for marine shipments, except as provided under permitted uses and structures in section 604.4.2 below.

3. Passenger terminals, including related facilities for handling baggage or freight, ground transportation, parking, and establishments to serve needs of passengers and visitors including retail shops, eating and drinking establishments, ticket agencies, currency exchanges and the like.

4. Facilities for construction, maintenance, service, repair, supply or storage of vessels, including shipyards, dry docks, marine railways, shops for marine woodworking, electrical, communication and instrument installation and repair, welding, sail making, engine and motor repair and maintenance; ship chandlers; fuel supply establishments. Manufacture, maintenance, service, repair and/or sales or supply of parts, accessories and equipment for marine needs.

5. Bases for marine dredging, salvage, towing; marine construction offices and yards, piloting headquarters.

6. Sales, charter or rental of vessels, marine supplies and equipment, marine sporting goods and supplies. 7. Establishments for collection, processing and/or distribution or sales of marine food products and byproducts, including eating and drinking establishments related to such operations.

8. Hiring halls for seamen and dock workers.

9. Telecommunication transmission and relay stations; radar installation.

10. Structures and uses other than as listed above for performance of governmental functions (including private facilities supplementing or substituting for governmental functions such as fire protection or provision of security), or relating to operation of public utilities.

11. Commercial marinas, including permanent occupancy of private pleasure craft as living quarters and for temporary occupancy for transients (maximum stay: thirty (30) days) as shall be required for work or security purposes, or for repair work within the district.

12. Cellular communications site provided that where a transmission tower is used the transmission tower shall be by Special Exception only. The transmission tower and anchoring devices, if directly-abutting a residential district, must: (1) be located in the interior side or rear yard of the property; (2) meet minimum setback requirements; (3) be securely anchored, installed and maintained in accordance with all applicable codes; (4) not exceed a maximum height of one hundred and fifty (150) feet; and (5) be separated from adjacent properties by a landscape buffer.

Despite section 163.3161(5), which prohibits development unless it is in conformity with the City's Comprehensive Plan; section 163.3161(7), which specifies that the purpose of the Act is to protect certain resources and to maintain the character and stability of development in this state through orderly growth and development; section 163.3187, which limits amendments to the Comprehensive Plan; and Article 6 of the City's Zoning Code, designating key areas on the Miami River within a protected district due to its importance to the City's economy, a designation that specifically prohibits residential use or other uses not primarily related to waterfront activities, the City granted Balbino a small scale FLUM Amendment for its property located within this specially protected district, thereby allowing the construction of residential units that are not primarily related to waterfront activities. As will be addressed in depth herein, Balbino's FLUM Amendment is contrary to these provisions and is inconsistent with the Miami Comprehensive Neighborhood Plan and the Miami River Master Plan.

THE MIAMI COMPREHENSIVE NEIGHBORHOOD PLAN ("Comprehensive Plan")

The ALJ found that the FLUM Amendment was consistent with the goals, objectives, and policies of the Comprehensive Plan. The ALJ's evaluation of the evidence is, however, flawed because he failed to consider critical goals, objectives, and policies found in the "Port of Miami River," "Coastal Management," and "Future Land Use" sections of the Comprehensive Plan in reaching this conclusion. We will address each of these sections of the Comprehensive Plan separately.

A. The Port of Miami River Subelement

The Comprehensive Plan was adopted by the City Commission in 1989 and amended through August of 2004. Within the Comprehensive Plan is a section devoted to "Ports, Aviation and Related Facilities," specifying the City's goals, objectives, and policies regarding development within these critical areas. Within this section there is a subelement titled the "Port of Miami River." The appellants claim that the Balbino FLUM Amendment is inconsistent with this subelement.

Although the appellants attempted to present evidence to substantiate their claim that the Balbino FLUM Amendment is inconsistent with the Port of Miami River subelement of the Comprehensive Plan, the ALJ precluded them from introducing evidence regarding this subelement because he incorrectly concluded it was not relevant. The ALJ based his conclusion, in part, on the Department's definition of the term "Port of Miami River" in Monkus v. City of Miami DOAH Case No. 04-1080 GM (Department of Community Affairs, Final Order, Oct. 28, 2004) (" Monkus"), despite our contrary conclusion in Payne II. At the time of the hearing, the ALJ's justification for failing to apply this Court's holding in Payne II was that Payne II was still under consideration for rehearing and rehearing en banc. Although the appellants moved for a continuance pending the issuance of a mandate by this Court in Payne II, the ALJ denied the motion and precluded the appellants from introducing any evidence or making any argument regarding the Port of Miami River subelement of the Comprehensive Plan. The ALJ's refusal to permit the appellants to introduce evidence or present argument that the Balbino FLUM Amendment is inconsistent with the Port of Miami River subelement of the Comprehensive Plan was error.

The basis for the ALJ's exclusion of this relevant evidence was his finding that the Port of Miami River subelement only relates to the fourteen commercial shipping companies that were located along the Miami River in 1989. The ALJ's finding is premised on a footnote found in the Port of Miami River subelement of the Comprehensive Plan, which states:

The "Port of Miami River" is simply a legal name used to identify some 14 independent, privately-owned small shipping companies located along the Miami River, and is not a "Port Facility" within the usual meaning of the term. The identification of these shipping concerns as the "Port of Miami River" was made in 1986 for the sole purpose of satisfying a U.S. Coast Guard regulation governing bilge pump outs.

Based upon this footnote, the ALJ found, Balbino continues to argue on appeal, and the dissenting opinion issued by the members of this Court who voted to grant en banc review ("the dissent") concludes that the policies and objectives regarding the Port of Miami River in the Comprehensive Plan only apply to those fourteen companies. This argument was, however, rejected by this Court in Payne II and by Balbino's own witness, Lourdes Slazyk, the Assistant Director of the City's Planning Department, a witness heavily relied on by the dissent. In Payne II this Court stated the following:

We find that the "Port of Miami River" subsection is not limited to 14 unidentified companies. Rather, the footnote explains that the "Port of Miami River" is not a port in the traditional sense of the word. Accordingly, appellants did not have to allege that they were one of the 14 shipping companies referenced in the footnote.

Payne, 927 So.2d at 908 (footnote omitted) (emphasis added). Ms. Slazyk, in fact, agreed with this Court's definition of the Port of Miami River in Payne II and rejected the narrow definition relied on by the ALJ and the dissent.

The ALJ's finding and Balbino's argument, that the objectives and policies contained in the Port of Miami River subelement of the Comprehensive Plan do not apply to the Balbino property because it is not located on one of the original shipping company sites, is also illogical. First, it is undisputed that many of the fourteen shipping companies that were located at various sites along the Miami River in 1989 have moved, changed hands, or no longer exist, and that instead of fourteen shipping companies along the Miami River, there are now at least twenty-eight. Second, since the Comprehensive Plan's enactment in 1989, the City adopted The Miami River Master Plan, which will be addressed more fully herein, and the City has amended and readopted the Comprehensive Plan. Third, it is also undisputed that the marine industry along the Miami River has grown substantially and has become an important economic asset to the City. The Miami River generates over $800 million in input, $427 million in income, $45 million in tax revenue per year, and provides employment to 7,500 people. The shipping industry along the Miami River is not only growing, further expansion is all but certain when the U.S. Army Corps of Engineers completes its dredging of the Miami River. It is, therefore, illogical to conclude that the City meant only to protect the original fourteen shipping companies along the Miami River when it drafted, enacted, amended and readopted the Comprehensive Plan. Thus, we reaffirm our position in Payne II, that the "Port of Miami River" referred to in the Comprehensive Plan, and as amended and adopted in 2004, is not limited to the fourteen shipping companies that existed in 1989.

Our conclusion is supported by the findings contained in the Miami River Master Plan, prepared by the City of Miami Department of Planning, Building and Zoning, and adopted by the City on January 23, 1992, by Resolution #92-61. In this document, the City recognized that, although the Miami River is a navigable waterway used extensively for commercial shipping, it is not officially regulated as a port by state or local government; these commercial shipping operations are 100% owned and operated by private enterprise and, therefore, do not enjoy the structure, authority, and advantages normally associated with ports; the name Port of Miami River was simply coined in 1986 to satisfy a U.S. Coast Guard regulation governing bilge pumpouts; and there are currently between twenty-five and thirty independent shipping companies operating on the Miami River as opposed to the fourteen companies operating in 1989. Miami River Master Plan, River Management, Port of Miami River, 2.12 (Jan. 1992). Indeed, based upon this rather unusual structure, or lack thereof, the Miami River Master Plan stresses the need for a formal organization to manage the use of these facilities, providing, in part, as follows:

RECOMMENDATIONS

Policy:

2.4.9 Create an official "port" organization with responsibility to assist with enforcement of rules and regulations applicable to commercial shipping activity.

(a) Support the private sector efforts to fulfill the role of a port through a cooperative organization.

(b) If the private port cooperative fails to effectively manage shipping activity, establish a public port agency with legal authority to enforce regulations.

Id. at 2.13.

Additionally, the Miami River Corridor Infill Plan ("Infill Plan") which will be addressed more fully in this opinion, contains a summary specifically addressing the Port of Miami River subelement. It reads as follows:

In 1988 The Port of Miami River consisted of approximately 14 independent shipping terminals, along the Miami River as shown in Figure IV-16, that were joined together in 1986 in order to comply with U.S. Coast Guard regulations regarding pumpout of bilge water.

The Infill Plan lists the fourteen original shipping terminals; discusses the services provided and the tonnage of cargo shipped; notes the estimated $1.7 billion value; and then addresses the Port of Miami River subelement as it existed in 1995:

As shown in Figure IV-19, in 1995 the Port of Miami River consists of about 28 independent shipping terminals located along navigable 5.5 miles of the Miami River that stretch from the salinity dam to the Biscayne Bay.

The Infill Plan names the twenty-eight shipping terminals that existed in 1995, which were considered the Port of Miami River at that time. While the Infill Plan does not provide a more current list of the Port of Miami River entities, its drafters make it clear that the term clearly includes the shipping terminals along the river wherever they are located and regardless of the name or ownership.

Our finding is further supported by the testimony of Jack Luft. Jack Luft, who testified for the appellants, was accepted by the ALJ as an expert in the field of comprehensive land planning. Mr. Luft was a land planner with the City for twenty-eight years; participated in the rewrite of the Comprehensive Plan in 1978; was the senior project manager for several components of the Comprehensive Plan in the 1980's; wrote master plans for various cities and areas, including Virginia Key, Dinner Key, Coconut Grove, downtown, Watson Island, Bicentennial Park, and a number of neighborhood revitalization parks; planned the Design District in the 1.990's; was a consultant for Sunny Isles Beach's Comprehensive Master Plan in 2000; and is considered an expert for last year's Comprehensive Plan. Additionally, Mr. Luft served as the Director for the Department of Development for the City and was involved in revitalization strategies for Little Havana and Little River, where he analyzed census information, income data, and housing costs and conditions to determine how to approach the revitalization of these communities.

Mr. Luft testified that the Port of Miami River is not specifically defined in the Comprehensive Plan, but rather, it is only "vaguely referred to as a collection of marine industries and nonspecific locations of an unspecific number." It is Mr. Luffs expert opinion that the Port of Miami River encompasses the marine industrial uses and properties along the Miami River, which include the shipping terminals, shipping operations, and an array of services including freight forwarders, port construction companies, repair facilities, equipment suppliers, and other entities that operate and service the vessels on the Miami River.

Dr. Francis Bohnsack, the Executive Director of the Miami River Marine Group and who serves as the Miami River Port Director for the United States Coast Guard as a liaison for the marine industry on the Miami River with local, state, and federal agencies, agrees with Mr. Luffs definition of the Port of Miami River. Dr. Bohnsack explained that the Miami River Marine Group was established because of the Port of Miami River's unconventional structure. While conventional ports have an operational infrastructure owned by the government, the Port of Miami River is composed of privately owned companies that compete with each other. The Miami River Marine Group was established as an independent entity to serve its interests and the interests of the marine industry. She further explained that the Port of Miami River is a "riverine port" with many terminal addresses running along the entire length of the Miami River in designated marine industrial sites. It is, therefore, the position of both Mr. Lutz and Dr. Bohnsack that the Port of Miami River includes the port facilities that are water-dependent, zoned SD-4, and regulated by the Coast Guard, customs, and the various federal, state and local agencies.

Based on this Court's ruling in Payne II and the testimony of the witnesses, including Balbino's own witness, the ALJ clearly erred in finding that the Port of Miami River subelement did not apply to Balbino's property because it is not the site of one of the shipping companies located on the Miami River in 1989. We also conclude that the evidence presented supports Mr. Luffs and Dr. Bohnsack's conclusions that the Port of Miami River subelement encompasses the water-dependent and water-related marine industries on the river, which includes the shipping companies, shipping terminals, and the associated supporting marine industries zoned SD-4 on the Miami River. Thus, the ALJ erred in refusing to permit the appellants to introduce evidence or to argue that Balbino's FLUM Amendment is inconsistent with the objectives and policies of the Port of Miami River subelement and by failing to consider the relevant objectives and policies contained in the Port of Miami River subelement.

Balbino and the dissent attempt to dismiss, or in the alternative, to minimize the ALJ's refusal to apply this Court's holding in Payne II during the hearing by arguing that because the ALJ ultimately "recognized" this Court's holding in Payne II in his Recommended Order, the error was cured. We reject this argument. "Recognizing" the error without providing the appellants with an opportunity to present relevant evidence and make critical arguments regarding the FLUM Amendment's impact on and inconsistency with the Port of Miami River subelement of the Comprehensive Plan does not cure the error. Furthermore, even after "recognizing" this Court's holding in Payne II, the ALJ still refused to apply the goals, policies, and objectives of this subelement. This too was error.

Some of the objectives and policies found in the Port of Miami River subelement of the Comprehensive Plan that the ALJ failed to consider when he found that the FLUM Amendment was consistent with the Comprehensive Plan are:

Objective PA-3.1: The City of Miami, through its Land development regulations, shall help protect the Port of Miami River from encroachment by non water-dependent or water-related land uses, and shall regulate its expansion and redevelopment in coordination with the City's applicable coastal management and conservation plans and policies.

Policy PA-3.1.1: The City shall use its land development regulations to encourage the establishment and maintenance of water-dependent and water-related uses along the banks of the Miami River, and to discourage encroachment by incompatible uses.

Policy PA-3.1.2: The City shall, through its land development regulations, encourage the development and expansion of the Port of Miami River consistent with the coastal management and conservation elements of the City's Comprehensive Plan.

Policy PA-3.1.3: The City shall, through its land development regulations, encourage development of compatible land uses in the vicinity of the Port of Miami River so as to mitigate potential adverse impacts arising from the Port of Miami River upon adjacent natural resources and land uses.

Policy PA-3.3.1: The City of Miami, through its Intergovernmental Coordination Policies, shall support the functions of the Port of Miami River consistent with the future goals and objectives of the Comprehensive Plan, particularly with respect to the unique characteristics of the Port of Miami River's location and its economic position and functioning within the local maritime industry, and the necessity for coordination of these characteristics and needs with the maritime industry that complements, and often competes with, the Port of Miami River.

Failure to consider these objectives and policies is material, as Balbino's proposed land use is clearly inconsistent with the Port of Miami River subelement of the Comprehensive Plan. Objective PA-3.1 requires the City to " protect the Port of Miami River from encroachment by non water-dependent or water-related land uses. . . ." (emphasis added). This subelement also provides clear policy which requires the City through its land development regulations to encourage the maintenance of water-dependent and water-related uses along the banks of the Miami River and to encourage expansion of the Port of Miami River. Contrary to these objectives and policies, the City approved Balbino's small scale FLUM Amendment to the Comprehensive Plan, changing the land use designation, which is mostly Industrial, to Restricted Commercial, and also permitted this parcel of land, located directly on the Miami River, to be rezoned from SD-4.2 Waterfront Industrial to Restricted Commercial, thereby allowing the construction of a mixed-use project that is neither water-dependent nor water-related and will limit future expansion of the Port of Miami River.

Balbino and the City argue that the Port of Miami River subelement only applies to land development regulations (zoning), and not to land use, which is what the FLUM Amendment addresses. Balbino and the City, therefore, argue that regardless of how we define the Port of Miami River, the ALJ did not err in refusing to consider whether Balbino's FLUM Amendment was consistent with the objectives and policies of the Port of Miami River subelement. The dissent agrees with this finding and further claims that the only issue before the ALJ was "the City's legislative decision to reformulate its policy . . . regarding this change. Because no land development, that is, zoning issues were involved, the ALJ properly refused to consider those parts of this sub-element." (Emphasis added).

The dissent also argues that "Planning is not zoning and changing the Plan does not automatically result in changing the zoning . . . zoning follows planning . . . planning is not affected by zoning . . . a new use designation does not mean that the rezoning request will or must be granted . . . and the fact that this parcel of property is zoned SD-4.2, is wholly irrelevant as to whether changing the land use designation of this property from Industrial to Restricted Commercial is consistent with the Port of Miami River sub-element." These arguments, however ignore the fact that Policy PA-3.3.1 does not address land development regulations and is clearly relevant when considering a land use amendment, and also disregards the record in this case.

The Balbino property was, for the most part, zoned SD-4.2 Waterfront Industrial. Therefore, its land use designation was, by necessity, identified as Industrial. The Industrial land use, coupled with the SD-4.2 land development classification, precludes any residential uses. The Industrial land use and the SD-4.2 land development classifications were placed on this property to reserve and preserve it as a water-dependent or water-related Industrial use that could not be used for residential purposes. The Port of Miami River subelement was enacted to specifically protect the shipping industry by "encourage[ing] and maintain[ing] the water-dependent and water-related uses along the banks of the Miami River, and to discourage encroachment by incompatible uses." Policy PA-3.1.1. By changing the land use designation from Industrial to Restricted Commercial, the only water-related or water-dependent use permitted in that classification would be for a marina. More importantly, the FLUM Amendment will permit residential use, a land use specifically precluded by the SD-4.2 land development classification. Thus, by changing the land use, the FLUM Amendment dramatically changes the permitted land development uses, and limits the specifically designated sites reserved by the City to support the shipping industry on the Miami River.

While we agree with the dissent that land use planning and zoning are separate issues which generally must be considered separately, even when amendments to both are presented together, we conclude that because both requests were tied together, dependent on the other, and the zoning amendment was the driving force and was essential to obtaining the land use amendment, the zoning amendment cannot be ignored in this case.

The record reflects that Balbino's applications to the City to change the Comprehensive Plan by amending the Future Land Use Map from Industrial and General Commercial to Restricted Commercial, and to change the zoning from SD-4, Waterfront Industrial to C-1 Restricted Commercial, were presented together, defendant on the other for approval, and approved together. In fact, an honest reading of the City's minutes of the hearing reflects that the land use amendment (the FLUM Amendment) and the land development amendment (the zoning amendment) were approved because the Commissioners liked the project (1,073 condominium units consisting of three highrise buildings), not because the City made a "legislative decision to reformulate its policy," as the dissent claims. In fact, the land use (FLUM Amendment) was approved for the specific purpose to allow the proposed development.

Chairman Teele: . . . I really do think . . . the whole issue of the Commission sitting in the zoning role is really to determine what the uses of land will be . . .

. . . .

Chairman Teele: . . . I'm going to support this project because I think . . . this project is a handsome project, and I am persuaded . . . that [the] community [is] crying out for residential opportunities and residential values. . . .

The transcript of the hearing before the ALJ also reveals that Lourdes Slazyk, the Assistant Director of the City's Planning Department, a witness called by Balbino and heavily relied on by the dissent, confirmed that the applications for the land use and the zoning (land development) were tied together and that the City Commission would not approve one without approving the other. She testified that Balbino submitted all of its applications together in a "book": its applications for a major use special permit, a land use amendment, and a land development amendment, and confirmed that the "zoning ordinance allows them to travel as companions." The relevant testimony by Ms. Slazyk is as follows:

[Ms. Slazyk]: . . . The ultimate recommendation is made by the planning director, but she takes into consideration the analysis prepared by the land development section. . . .

. . . .

[Ms. Slazyk]: . . . zoning ordinance allows — when a project is the scale of a major use special permit, our zoning ordinance allows all of the subordinate reviews and approvals to be considered at the same time. They can file it all together.

[Counsel for appellants]: Meaning the land use amendment, the zoning?

[Ms. Slazyk]: And any other variances, any other subordinate special permits.

[Counsel for appellants]: The whole bucket of stuff.

[Ms. Slazyk]: The major use is seen as the umbrella that covers all of the subordinate reviews and approvals. . . .

When asked if either the land use amendment or the zoning amendment could be approved without approving the other, Ms. Slazyk replied:

Our land use and our zoning at least need to be compatible. If they approve a land use change that allows something that the zoning doesn't allow the same uses as the land use, they're mutually exclusive in some cases. I don't think they can do that. I think the — our law department would advise the City Commission not to approve one without the other.

Ms. Slazyk additionally testified that "[w]hen we do an analysis of a land use and zoning classification, we don't look at it in a vacuum. We study the area." She explained that their study included a review of how the surrounding properties were zoned and what they were actually being used for.

It is thus clear that: (1) the FLUM Amendment, zoning change, and special use permit all traveled together and were decided together; (2) the City did not make a legislative decision to reformulate its policy regarding the marine industry and land use along the Miami River and in fact, the City decided to leave that decision for another day; (3) the City's decision to approve the FLUM Amendment was, instead, based on its decision to approve the proposed mixed use project which required a zoning change from SD-4.2 water dependent/water related Industrial to non-water dependent/water related Restricted Commercial, which in turn necessitated the FLUM Amendment, not the other way around.

Thus, when the dissent argues that: "[b]ecause no land development, that is zoning, issues were involved, the ALJ properly refused to consider those parts of this sub-element dealing with zoning ordinances`"; "planning is not zoning and changing the Plan does not automatically result in changing the zoning"; "zoning follows planning; planning is not affected by zoning"; "a new use designation does not mean that the rezoning request will or must be granted," and "the fact that this parcel of property is zoned SD-4.2, is wholly irrelevant as to whether changing the land use designation of this property from Industrial to Restricted Commercial is consistent with the Port of Miami River sub-element," ignores the record in this case and pretends that Balbino's land use amendment application was presented and considered in a vacuum and on its own merits. The record is the record. We cannot ignore it.

Balbino's FLUM Amendment is clearly inconsistent with the following mandates found in the previously cited objectives and policies listed in the Port of Miami River subelement of the Comprehensive Plan and which the ALJ refused to consider: Objective PA-3.1, which requires the City to "protect the Port of Miami River from encroachment by non water-dependent or water-related land uses"; Policy PA-3.1.1, which requires the City to "encourage the establishment and maintenance of water-dependent and water-related uses along the banks of the Miami River, . . . and to discourage encroachment by incompatible uses"; Policy PA-3.1.2, which requires the City to encourage the development and expansion of the Port of Miami River; Policy 3.1.3, which requires the City to encourage development of compatible land uses in the vicinity of the Port of Miami River; and Policy PA-3.3.1, which requires the City to "support the functions of the Port of Miami River consistent with future goals and objectives of the Comprehensive Plan, particularly with respect to the unique characteristics of the Port of Miami River's location and its economic position and functioning within the local maritime industry."²

2 Policy PA-3.3.1 does not involve land development. Its relevance is therefore not in dispute.

Thus, we conclude that the ALJ erred in refusing to allow the appellants to offer evidence as to Balbino's FLUM Amendment's inconsistency with the Port of Miami subelement of the Comprehensive Plan and for failing to consider this subelement in determining whether the FLUM Amendment was consistent with the Comprehensive Plan. Based on the record, we also reject the notion that the City's decision to grant the FLUM Amendment was made after legislatively reformulating its policy regarding the overall vision of the Miami River.

B. Coastal Management

The Comprehensive Plan also contains a section or subelement, titled "Coastal Management," which addresses the coastal areas located within the City. One of the goals specified in this section is to "[p]rovide an adequate supply of land for water dependent uses." Goal CM-3. In order to accomplish this goal, Objective CM-3.1 provides: "Allow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami." (emphasis added). Moreover, Policy CM-3.1.1 states: "Future land use and development regulations will encourage water dependent uses along the shoreline."

Despite the stated goals, objectives, and policies regarding the coast of the Miami River, the City approved the Balbino FLUM Amendment to the Comprehensive Plan, changing the land use designation from Industrial to Restricted Commercial and approved a change in the zoning from SD-4.2 Waterfront Industrial to Restricted Commercial. These changes will preclude the very use the Comprehensive Plan specifies should be protected and it is obviously a net loss of acreage devoted to water-dependent use, thereby conflicting with Coastal Management Goal CM-3. Instead of "[p]rovid[ing] an adequate supply of land for water dependent uses[,] . . . [a]llow[ing] no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami," and using its land use regulations to "encourage water dependent uses along the shoreline," the City approved this land use change to enable it to eliminate the special Water-front Industrial zoning and avoid the restriction against residential development. The result is an obvious net loss of acreage devoted to water-dependent use and decreases the available supply of land for water-dependent uses without conducting a study and determining whether an adequate supply of land for water-dependent uses still remains.

In addressing Goal CM-3, the ALJ concluded that because the change to a Restricted Commercial land use designation will still permit a commercial marina to operate at that location, the FLUM Amendment will result in no loss of acreage devoted to water-dependent use. This conclusion is unsupported by competent record evidence and ignores the intent of Coastal Management Goal CM-3, the record in this case, and the distinction between acreage "devoted to a water-dependent use" and acreage that "may be used for a marina" but may not be used for any other water-dependent use.

The FLUM Amendment and zoning changes, to Restricted Commercial, with the concurrent approval by the City to allow Balbino to construct over one thousand residential units that are neither water-dependent nor water-related is clearly inconsistent with the goals, objectives, and stated policies of the Coastal Management Section of the Comprehensive Plan. The FLUM Amendment, which allows residential uses and the reclassification of this property from Industrial to Restricted Commercial, has in fact resulted in the elimination of the commercial marina currently operating at that location, as well as twenty-seven of the ninety-three dry boat slips on the Miami River. The Balbino FLUM Amendment to the Comprehensive Plan, changing the land use designation, which is primarily Industrial to Restricted Commercial, and the zoning from SD-4.2 Waterfront Industrial to Restricted Commercial, will result in a net loss of acreage devoted to water-dependent use. The loss of acreage specifically reserved for water-dependent or water-related use conflicts with Coastal Management Goal CM-3. Instead of "[p]rovid[ing] an adequate supply of land for water dependent uses," . . . "[a]llow[ing] no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami," and using its land use regulations to "encourage water dependent uses along the shoreline," these changes to this property's land use [and zoning] will deplete land specifically reserved by the City for Industrial water-dependent uses in its Comprehensive Plan.

The Comprehensive Plan's goals, objectives, and policy considerations regarding coastal areas, and specifically those coastal areas along the Miami River, are in recognition of how important the shipping industry and other water-dependent uses are to the City's economy.

In view of the importance to the local economy, the limited available areas suitable for high intensity water dependent uses, and strong population pressures of the 1960's, the City created in the mid 1960's a zoning classification entitled Waterfront Industrial. This zoning classification strictly prohibits uses that are not directly related to waterfront activities.

. . . .

Since any new water dependent or related facilities would involve redevelopment of existing waterfront properties, these zoning ordinances are considered sufficient to insure that adequate land area for water-dependent or related uses is protected.

. . . .

Along the Miami River, an economic study in 1986 reported that the firms located in the study area . . . have a significant impact on the Miami economy. They employ an estimated 7,000 workers on a full time basis and over 600 part time. Total sales are estimated at $613 million, or about $87,000 for a full time worker. An additional indirect impact of $1.2 billion of business activity in the Miami area is created by firms in the study area. Many of the firms located in the study area are marine related businesses in part composed of water dependent and water related activities.

Miami Comprehensive Neighborhood Plan 1989-2000, Volume II, Data and Analysis, Coastal Management Element (emphasis added).

The ALJ, however, failed to consider the importance of the marine industry to the City's economy or to appreciate that the Industrial land use designation and Water-front Industrial SD-4 zoning classification were created to protect those uses and to ensure that there will be adequate land area for water-dependent and water related uses. Because there was no evidence presented, nor was a study performed, to evaluate the sufficiency of the remaining SD-4 zoned land along the Miami River, in light of the expected future increases in shipping and other related marine services along the river due to the dredging of the Miami River, the ALJ had insufficient evidence to conclude that the FLUM Amendment would not be inconsistent with the Coastal Management section of the Comprehensive Plan.

C. Future Land Use

As with the two preceding sections or subelements of the Comprehensive Plan, the ALJ made findings that were unsupported by competent evidence and he failed to consider important relevant goals contained in the Future Land Use section of the Comprehensive Plan.

The Future Land Use section of the Comprehensive Plan provides that one of its future land use goals is to "[maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city . . . and (6) protects and conserves the city's significant natural and coastal resources." Goal LU-1.

The ALJ found that the FLUM Amendment is consistent with Goal LU-1. He concluded that because the "FLUM Amendment will eliminate the potential for development of industrial uses that may generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact[,]" it will improve the quality of life of the surrounding neighborhoods, and it is, therefore, consistent with LU-1(1). He additionally found that because the Balbino property is located in Allapattah, a declining area, the FLUM Amendment will provide redevelopment and revitalization of the area, and is, therefore, consistent with subpart LU-1(2). There was, however, no actual evidence presented to support these conclusions, and the evidence that was presented, is contrary.

The Future Land Use section of the Comprehensive Plan, Goal LU-1(1) requires the City to "[m]aintain a land use pattern that protects and enhances the quality of life in the city's residential neighborhoods." Ms. Stetser, a resident who lives in Allapattah near the Balbino property, testified that rather than "enhancing the quality of life" in the neighborhood, the addition of over two thousand additional cars to the already congested two-lane North River Drive and to the 17th Avenue bridge, which already backs up, will cause further delays and frustration to the neighborhood's drivers. This evidence was unrefuted. In fact, as will be discussed later, no transportation studies were conducted.

Additionally, the following evidence, which the ALJ failed to consider, was presented. In 1997, the Florida Legislature created the Miami River Study Commission to assess the various issues along the Miami River and to make recommendations for improving its management; in 1998, the Legislature established the Miami River Commission to coordinate state, regional, and local activities impacting the Miami River; and in 1999, the Legislature adopted the Urban Infill and Redevelopment Act to assist local governments in implementing their local comprehensive plans. In 2000, in recognition of the importance of the Miami River and the need for a single, multi-jurisdictional plan for the entire Miami River Corridor, the City, Miami-Dade County, and the Miami River Commission executed a joint planning agreement to create an urban infill plan for the Miami River Corridor. After two years of collaborative effort, the Infill Plan was adopted by the Miami River Commission and Miami-Dade County as their Strategic Plan. While the City has not yet adopted the Infill Plan it helped create, it does periodically refer to data contained in the Infill Plan, and it was relied upon, in part, by the City, the ALJ, and Balbino during the proceedings.

The Infill Plan identifies the Allapattah area as a neighborhood stretching from N.W. 17th Avenue to N.W. 27th Avenue on the north bank of the Miami River. The Balbino property is located at approximately N.W. 18th Avenue directly on the north side of the Miami River. The Infill Plan notes that Allapattah is the home to thriving marinas, two of the largest yacht basins on the Miami River, numerous produce and flower markets, and a thriving wholesale and retail clothing district on N.W. 20th Street. In addressing the waterfront properties along the Miami River, the Infill Plan specifically states that both high density and lower density residential development may not be the most appropriate use of the neighborhood's river frontage and that "Allapattah's water-front industrial zoning should be maintained."

LU-1(2) of the Future Land Use section of the Comprehensive Plan requires the City to "[m]aintain a land use pattern that fosters redevelopment and revitalization of blighted areas." The ALJ found the FLUM Amendment was consistent with LU-1(2). This finding, however, is unsupported by the evidence. While some of the neighborhoods in Allapattah may be "declining," recent studies show that others, including some Industrial waterfront properties, are "thriving." Additionally, while it may be beneficial to encourage development in the Allapattah area as a whole, residential development along the water-front in areas designated as Industrial on the land use map and zoned Waterfront Industrial is inconsistent with various other provisions within the Comprehensive Plan. For example: LU-1(6) of the Future Land Use section of the Comprehensive Plan requires the City to "[m]aintain a land use pattern that protects and conserves the city's significant natural and coastal resources." Thus, when encouraging development in the City and the Allapattah area, the City must do so in a way that also protects and conserves the City's coastal resources, and does not violate any of the provisions of the River Plan or other elements of the Comprehensive Plan.

LU-1(3) of the Future Land Use section of the Comprehensive Plan requires the City to "[m]aintain a land use pattern that promotes and facilitates economic development and the growth of job opportunities in the city." Rather than promoting economic development and the growth of job opportunities as required in LU-1(3), the evidence establishes that the FLUM Amendment will do just the opposite. Jack Luft testified that the Miami River Master Plan; the Urban Infill Plan; the City of Miami, Miami River Market Analysis; and the 2004 Economic Impact Analysis all reflect that the Miami River and its marine industrial base are a significant source of jobs and economic enhancement to the City. This includes not only the shipping industry, but also a variety of marine industrial support services that reinforce and directly serve the industry. He noted that from 1991 to 2001, the marine industries on the river doubled in ports serving the Caribbean and in the cargo handled along the river. Jobs have tripled. The Miami River marine industry is an important economic asset to the City which provided over $4 billion in trade during the ten-year period from 1991 to 2001. Mr. Luft testified that "this amendment eliminates irreplaceable marine industrial land from the river. There is not another place to recapture it, and it completely violates the promotion and facilitation of economic development of one of the most important industries in the city. It's clear." Mr. Luft additionally stated that the FLUM Amendment not only eliminates this particular marine use on the Miami River, it threatens the viability and the very existence of the surrounding marine industrial uses and it is the Miami River maritime industry itself that provides jobs in the region. Again, this evidence was unrefuted. The only evidence Balbino offered was that his high density residential high-rise complex would be located in close proximity to the Civic Center, and could provide housing to those working within the area of the Civic Center. While it is true that there is a large number of people employed within the Civic Center area, there was no evidence presented that additional housing was needed to support the Civic Center workforce. But more importantly, the ALJ failed to recognize that even if the development of residential units in Allapattah could benefit people working in the area of the Civic Center, those units could be constructed on a number of other sites within Allapattah, and even along the banks of the Miami River, without converting one of the few remaining Industrial water-related/water-dependent parcels of land reserved for and to support the maintenance of the marine industry.

The ALJ also failed to address LU-1(6), which requires the City to "[m]aintain a land use pattern that protects and conserves the city's significant natural and coastal resources." Since 2000, fifty percent of the properties designated for marine industrial water-related and water-dependent uses along the banks of the Miami River have been lost due to the multiple small scale land use amendments passed to make way for residential high-rises. These small scale amendments do not require the scrutiny that is normally required to amend the Comprehensive Plan. Therefore, developers, with City approval, have been compromising the marine industry and, in effect, changing the Comprehensive Plan piecemeal, rather than performing a comprehensive review with appropriate public and governmental input and oversight. The Balbino FLUM Amendment is an example of this piecemeal alteration of the City's coastal resources, and when viewed in conjunction with the other small scale amendments, dramatically affects the stated goals and objectives to preserve the Miami River as a working river, which are to protect the marine industries along the river and to reserve a sufficient amount of waterfront industrial land for expansion of water-dependent and water-related uses.

Despite the FLUM Amendment's conflict with the overall goals, objectives, and policies specified in Goal LU-1 of the Future Land Use section of the Comprehensive Plan, the ALJ upheld Balbino's FLUM Amendment because he found that it was consistent with Policy LU-1.3.6, which encourages "diversification in the mix of industrial and commercial activities and tenants" in certain areas of the City, including the "River Corridor." The ALJ, however, failed to consider that while diversification and mixed-use classifications may be desirable in certain locations along the River Corridor, the Comprehensive Plan and the River Master Plan make it clear that these goals only apply to appropriately zoned areas, not to land reserved for waterfront industrial purposes:

Goal CM-3: Provide an adequate supply of land for water dependent uses.

Objective CM-3.1: Allow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami.

Miami Comprehensive Neighborhood Plan 1989-2000, Volume II, Data and Analysis, Coastal Management Element: In view of the importance to the local economy, the limited available areas suitable for high intensity water dependent uses, and strong population pressures of the 1960's, the City created in the mid 1960's a zoning classification entitled Waterfront Industrial. This zoning classification strictly prohibits uses that are not directly related to waterfront activities.

River Master Plan, 0.2: The function of the Miami River as a "working waterfront" should be preserved. Scarce waterfront land should be reserved, wherever possible, for use by businesses that are dependent on a waterfront location or are essentially related to the maritime economy of the area.

River Master Plan, Urban Design 4.20: New housing construction should be encouraged, except on lands reserved for water-dependent uses.

River Master Plan, Urban Design 4.20, Objective 4.8: Encourage residential development on appropriately zoned lands in the Mid-River area.

(Emphasis added).

While residential development may be desirable in certain areas along the Miami River, the Comprehensive Plan and the Miami River Master Plan make it clear that the very limited specially protected Industrial parcels of land on the Miami River, which have been reserved through a very lengthy comprehensive process of land use planning, must be preserved. In addition to this long-range planning strategy for the Miami River are the measures taken in support of the City's long-range plan.

Jack Luft testified that Miami and Florida have initiated an aggressive marketing campaign to strengthen its ports. The Caribbean Basin Initiative and the recent Central American Free Trade Agreement (CAFTA) are two of those initiatives. He additionally noted that Rule 9J-5 of the State Administrative Code requires the City to do an assessment of need. In compliance with Rule 9J-5, the studies performed demonstrate an enormous need to preserve waterfront industrial sites along the Miami River. The Port of Miami River handles one-third of the tonnage that serves the Caribbean basin and is one of the major ports serving the shallow draft ports of the Caribbean. Mr. Luft testified that the existing need, while great, is continuing to grow with no other location to fulfill the need. He astutely pointed out that while there are many suitable upland locations for the residential buildings planned by this developer, the marine industry has no such latitude.

We therefore find that the ALJ's finding that Balbino's FLUM Amendment is consistent with the Future Land Use section of the Comprehensive Plan is unsupported by the evidence presented. We conclude, that based on the evidence presented, it is clearly inconsistent.

MIAMI RIVER MASTER PLAN ("River Master Plan")

The River Master Plan is the result of a planning study undertaken by the City of Miami Department of Planning, Building and Zoning, to provide a long-range and a short-range vision of the Miami River as a "working waterfront." The River Master Plan provides a pattern of land use that encompasses this "vision" and was intended to offer certainty in the marine industry for potential expansion and investment. To accomplish these goals, the River Master Plan specifically provides that:

The function of the Miami River as a "working waterfront" should be preserved. Scarce waterfront land should be reserved, wherever possible, for use by businesses that are dependent on a waterfront location or are essentially related to the maritime economy of the area.

The river should grow as a shallow draft seaport — a lifeline to the Caribbean Basin — providing good-paying jobs for city residents. New shipping terminals should be located where they will not be detrimental to residential neighborhoods.

The river's role in the regional market for repair, sales and service of boats and marine equipment should be maintained and strengthened.

The marine character embodied by the fishing industry on the river should be preserved.

River Master Plan, Executive summary, at 0.2 (emphasis added).

The River Master Plan addresses the limited availability of land suitable to development and expansion of water-dependent marine businesses, stating in pertinent part:

Within Dade County, there is estimated to be only 13.7 acres of undeveloped land[³] with suitable water access and zoning to permit expansion of water-dependent marine businesses. Of that total, 8 acres are located on the Miami River. Given the economic significance of the marine industry, particularly in terms of the type and number of jobs created, it is important to prevent encroachment upon the limited amount of land available for growth of marine activities in the Miami River area.

3 The River Master Plan was adopted in 1992. Thus, the data is reflective of available water-dependent land at that time.

. . . .

RECOMMENDATIONS

Objective:

1.1 Reserve the limited amount of waterfront land available for expansion of marine industries.

Policies: 1.1.1 Retain and enforce the requirement for water-dependent and water-related uses within areas currently designated SD-4 in the City of Miami.

River Master Plan, The Working Water-front at 1.4-1.5 (emphasis added).

The River Master Plan also specifically addresses the SD-4.2 zoning designation for coastal areas along the Miami River to provide protection from intrusion by non-water-dependent or related uses.

In the City of Miami, marine industries along the Miami River and its tributaries are protected by a special zoning designation from intrusion by other uses that are not dependent on a waterfront location. This special zoning is called "SD-4, Waterfront Industrial Special District." It is intended for application in areas appropriately located for marine activities, to limit principal and accessory uses to those reasonably requiring waterfront locations, and to exclude residential, general commercial, service, office or manufacturing uses not primarily related to waterfront activities.

River Master Plan, The Working Water-front, at 1.12 (emphasis added). The River Master Plan divides the SD-4.2 zoning classification into two categories: SD-4.1, Waterfront Commercial and SD-4.2, Waterfront Industrial. Waterfront Commercial, SD-4.1 includes marinas, boatyards, fisheries, boat sales and service, mixed use, and limited restaurant or residential with water dependent use. Waterfront Industrial, SD-4.2 includes shipping terminals, marine contractors, commercial ship-yards, towing, and salvage, and all SD-4.1 uses, except residential.

This waterfront zoning classification was recommended by City planners in 1956, was adopted by the City in 1961, and generally remained intact until recent years when the City began approving small scale amendments to the Comprehensive Plan and the concurrent zoning changes. Most of Balbino's property is zoned SD-4.2, Waterfront Industrial property, and therefore, is reserved for water-front industrial purposes and specifically excludes any residential uses.

The City, Balbino, the ALJ, and the dissent all contend that, because the subject property is located in the "Mid-River" section where most of the existing housing is located along the Miami River, a change from an Industrial land use, zoned SD-4.2, Waterfront Industrial, to a mixed-use residential Restricted Commercial designation is consistent with the area's land use. We disagree, as the River Master Plan, which recognizes the importance of housing opportunities in the Mid-River area, specifically limits housing to land not reserved for water-dependent uses.

Residential Development

. . . .

A number of opportunities remain for development of new housing by building on vacant lots or by increasing the density of existing developed lots. New housing construction should be encouraged, except on lands reserved for water-dependent uses. In the proposed SD-4.1 Waterfront Commercial zoning district (see page 1.14) residential development could be permitted as an accessory use to a marina.

. . . .

Objective: 4.8 Encourage residential development on appropriately zoned lands in the Mid-River area.

River Master Plan, Mid-River, at 4.20 (emphasis added). Balbino's property, which is zoned SD-4.2, Waterfront Industrial, therefore, is specifically excluded from the City's stated residential development goals along the Mid-River. Even SD-4.1, Waterfront Commercial zoned land may only include residential development as an accessory use to a marina.

Lastly, the River Master Plan recognizes that higher land values and the concomitant increase in property taxes would result in the displacement of marine businesses and that the SD, Waterfront Industrial zoning was created, in part, to protect the maritime industry along the Miami River from being priced out of the location. It, therefore, provides for specific objectives and policies to protect these marine businesses from displacement by higher land values.

Land Values

One issue which directly affects the continued viability of marinas and small boatyards, as well as other businesses along the Miami River, is that of increasing land values and the concomitant increase in property taxes. Clearly this has been the case in the Downtown portion of the river and has resulted in the displacement of marine businesses with office buildings. . . .

RECOMMENDATIONS

Objective:

1.3 Preserve the marine repair, service, equipment and related industries along the Miami River that are vital to the shipping industry or the recreational boating industry.

Policies:

1.3.1 Protect boatyards and related marine businesses from displacement by higher land value uses by adopting separate "marine industrial" and "marine commercial" zoning district classifications.

River Master Plan, Marinas and Boatyards, at 1.9. Balbino's FLUM Amendment, changing the land use designation from Industrial to Restricted Commercial, is clearly inconsistent with the objectives and policy considerations relating to property values. Balbino's 1,073-unit residential towers would most likely raise nearby property values and taxes, not protect them, thereby creating a financial strain on smaller marine businesses critical to the working waterfront. The ALJ erred in failing to consider this issue in finding that the FLUM Amendment was consistent with the River Master Plan.

Inexplicably, the dissent and the ALJ completely ignore the River Master Plan despite its adoption by the City in 1992 and the fact that the ALJ and the parties referenced its provisions throughout the proceedings. Perhaps this oversight is due to the clear language contained in the River Master Plan which requires the City to protect the "working waterfront," preserve the waterfront locations reserved for the maritime industry, and to prevent encroachment upon the limited amount of land available along the Miami River for growth of maritime activities on and along the River.

MISCELLANEOUS

(1) Concurrency:

Section 163.3180(1)(a) provides that concurrency requirements regarding sanitary sewer, solid waste, drainage, potable water, and transportation facilities be met. Additionally, Florida Administrative Code Rule 9J-5.005(2)(a) provides that "[a]ll goals, objectives, policies, standards, findings and conclusions . . . within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element." While Rule 9J-5.005 does not require the City or Planning Department to personally compile the original data and perform its own original analysis, it does require review of the applicable data and that it be provided by acceptable existing sources. Rule 9J-5(2)(a) further specifies that "[a]ll tables, charts, graphs, maps, figures and data sources, and their limitations, shall be clearly described where such data occur in the above documents," and that the Department must determine whether the data was "collected and applied in a professionally acceptable manner."

Although Ms. Slazyk testified that Balbino's FLUM Amendment met the concurrency requirements of section 163.3180(1)(a), there is no competent evidence in this record to support her conclusory statement. In fact, the only record evidence relating to concurrency is a one-page "analysis" submitted by the Department addressing the impact of the Balbino FLUM Amendment on recreation and open space, potable water, sanitary sewer transmission, storm sewer capacity, solid waste collection, and traffic. This one-page document, however, performs no analysis and reflects that the conclusions reached were, instead, based on "assumptions." The recreation/open space concurrency, by the Department's own admission, was assumed. Sanitary sewer transmission, by the Department's own admission, was assumed, and the Department admits that the capacity to service 2,877 new residents is "currently not known." As to the collection of solid waste, the "analysis" shows that the excess capacity prior to the proposed Amendment was eight hundred and with the addition of 2,877 residents, a deficit would exist. The availability of potable water was not even analyzed. The conclusions reached regarding these elements are not supported by any data, and the Department lists no sources for the data it allegedly relied on.

Jack Luft specifically addressed the Department's failure to comply with Rule 9J-5. As to the Department's assumptions regarding the City's ability to meet transportation requirements, he stated the following:

This site is particularly problematic. . . . I am — I'm supportive of high density, but the Master Plan specifically says that high densities shall be located in proximity to, convenient to, accessible to, concentrations of employment, mass transit facilities, and services. And, indeed, the river plan speaks specifically to the question of the lack of services. We're talking about basic services along the river. At his location, we have marine industrial to the west. We have an already built multi-family structure to the east, and we have no immediate services at this location. None.

Mr. Luft additionally demonstrated the need for concrete data, as opposed to mere assumptions. For example, the City made an assumption that twenty percent of the trips in and out of this site would be by something other than an automobile (bike, walking, bus). However, Mr. Luft noted that bus service is several blocks away; there is no direct bus service to the Civic Center, which Balbino claims will benefit from the "affordable" housing he intends to provide; and the Metrorail, which is a mile away and is located within the Civic Center, will not provide transportation from Allapattah to the Civic Center or visa-versa. Mr. Luft, drawing on his experience as a mixed use and transit land planner, explained that the best mixed-use environments such as Brickell Avenue may support a fifteen percent ratio, which he explained is a very high split, but such an assumption for the Allapattah area is totally unrealistic.

[T]his project has one glaring problem, . . . if you read the MUSP very carefully, and that is the impacts of traffic on critical north/south arterial intersections, and the project has just managed to bring those impacts into the level of Service "E" category to avoid collapsing the intersection, and do you know how they manage to do that by the numbers? They said, this location is essentially the same as the Omni and Brickell, in terms of mass transit access, in terms of pedestrian movements, and in terms of bicycles, and by saying that, they can magically transform 17 percent of the trips from automobiles to bicycles and pedestrians, and busses, but you'd have to buy into the argument that this location at 19th Avenue and the river, with no direct bus access from there to the Civic Center, is going to engender the same kind of pedestrian traffic as the People Mover system and the transit system in downtown and the Omni. As a planner for your transit system and your station area plan for 10 years in the City, I will tell you, it will not, and as a member of the Governor's Planning Council for six years on bicycle planning in the State of Florida, I will tell you, you will not get more than one percent, and that's my expert opinion. In other words, those assumptions are incorrect and if you use the proper numbers, those intersections fail, and when they fail, you have an adverse impact that Section 1308 says you must mitigate, and there is no way to do it with this number of units. It fails to meet the standards of protecting adverse impacts against neighborhoods.

Mr. Luft opined that the reason the City assumed a twenty percent ratio was because the traffic consultants for this project noted that the level of service for 17th Avenue was right at the margin of Service E, which is as low as the City is permitted to go, and that any additional traffic beyond the City's "assumptions," even a small increase, would put the level of service at Service D, which according to the Comprehensive Plan, is not acceptable.

Lastly, Mr. Luft testified that the purpose of the Future Land Use Map in the Comprehensive Plan is to direct the market to areas where infrastructure is already in place, that a guiding principle of Florida's Growth Management is to allow market demand to drive the planning process, and this project violates these principles.

(2) Support for the project:

The dissent documents individual support for the project. There was not, however, overwhelming support for the project. Tucker Gibbs, representing the Durham Park Neighborhood Association (a plaintiff in this litigation), which is located directly across the Miami River from the proposed project and is composed of approximately ninety affected homeowners, testified that his clients objected to the proposed land use and zoning amendments and the Special Use permit granted by the City to Balbino. He expressed his concern on behalf of his clients that in the preceding three-and-a-half years, the City approved Comprehensive Plan amendments to 27.4 acres of the remaining 79.8 acres of the designated Marine Industrial sites along the Miami River — almost one-third of the Industrial property on the Miami River. He noted that the City wanted a mega yacht marina but that it was reducing the available sites to service these yachts and it was destroying the marine industry on the River. He noted that these three residential buildings — in excess of twenty stories each — were incompatible with the industry along the Miami River and single family and low density condominium residential units in the area. He concluded by reminding the City that its Comprehensive Plan is its constitution regarding land use and by systematically turning its back on its constitution, the City was turning its back on a very valuable resource that once destroyed cannot be recaptured.

Horacio Aguirre, who lives across the Miami River from the Balbino property, testified that the Miami River is not the property of the Allapattah neighborhood and that it is a valuable resource to the City of Miami and Miami-Dade County. Mr. Aguirre testified that the City advertises itself as a boating capital and eliminating the property currently being used as a recreational marine boatyard will strike a serious blow to the boating community. He also testified that the recreational marine industry in Greater Miami is at a peril to the condominium developers.

Dr. Francis Bohnsack, the Executive Director of the Miami River Marine Group and the Port Director of the Port of Miami River, testified on behalf of the Miami River Marine Group, a trade association consisting of approximately sixty members who own businesses on the Miami River and who object to the FLUM Amendment. Although the ALJ did not permit Dr. Bohnsack to render any opinions regarding the impact the Balbino FLUM Amendment would have on the marine industry, she did testify that the marine industry on the Miami River is a growing industry which will grow further after the dredging is completed. She testified that the loss of marine industrial land on the Miami River jeopardizes business on the Miami River.

Ann Freemont, a resident across the Miami River in Durham Park only five hundred feet from the project, also testified regarding her objections to the Balbino FLUM Amendment. She stated that: she is a "pleasure boater," she depends on the boatyard at that location, the City has seven hundred boaters in marinas that need to be serviced, and there are over four thousand vessels in the water in her area which need to be serviced and depend on the marine industry on the Miami River. Ms. Freemont strongly objected.

Ann Stetser who lives in Allapattah testified that she and her husband are "very opposed" to the project, as did Deborah Trujillo-Carpenter, who also lives in Allapattah. Ms. Trujillo-Carpenter testified that, these 28-story buildings would dwarf everything in the neighborhood, block the sun, block the wind, block their views, and if the City eliminates self-help boatyards like this one, people will resort to fixing their boats in their yards. She additionally noted that mega yachts go past her home all day and they need some place to "be fixed as well."

Mr. Payne, who owns a towing and transportation tug company and two properties on the Miami River, also objected to the Balbino FLUM Amendment, noting that the jobs produced by the marine industry on the River are important to the people of Allapattah. He testified: "I think that instead of building on the river and killing this resource we have, I think we need to embrace this resource," and he noted that the City was running out of property along the Miami River to do that.

Brett Bibeaux, the Managing Direct of the Miami River Commission, who appeared at the request of the City Commission to provide an advisory recommendation on behalf of the Miami River Commission, informed the City that the Miami River Commission found the Balbino proposal to be inconsistent with the Miami River Corridor Urban Infill Plan, "our adopted plan of Miami River Corridor improvement initiatives."

And lastly, the record reflects that the City's Planning Advisory Board also did not approve the proposed FLUM Amendment.

CONCLUSION

While we recognize that agency action enjoys great deference, findings of fact must be supported by competent, substantial evidence. Furthermore, when the agency incorrectly interprets the law or fails to apply the law, the decision rendered is subject to reversal. We conclude that the ALJ erred in: precluding the appellants from introducing evidence and in making argument regarding the FLUM Amendment's inconsistency with the Port of Miami River subelement of the Comprehensive Plan; failing to consider the Port of Miami River subelement of the Comprehensive Plan and critical areas of the Coastal Management and Future Land Use sections of the Comprehensive Plan; failing to consider critical sections of the River Master Plan; and making findings that were unsupported by the evidence. We find that had the ALJ considered these areas of the Comprehensive Plan and the River Master Plan, he could not have concluded that Balbino's FLUM Amendment was consistent with either. We therefore reverse.

We further note that these "small scale" amendments, when viewed together as a whole, are changing the character of the Miami River waterfront without proper long range planning or input from appropriate agencies, departments, and citizen groups. Because the Miami River is such an important asset to the City, County, and State, such piecemeal, haphazard changes are not only ill-advised, they are contrary to the goals and objectives of those who worked together, debated, and determined how the Miami River water-front should be developed. If the City's vision for the Miami River has changed, then that change should be clearly reflected in its Comprehensive Plan to provide industries and land owners along the Miami River with fair notice.

Reversed.

CORTINAS, J., concurs.

GERSTEN, J., dissents and concurs with Judge Wells' dissent on rehearing en banc. See Payne v. City of Miami 3D06-1799 (2010XGERSTEN, J., concurring dissent).

Before RAMIREZ, C.J., and GERSTEN, WELLS, SHEPHERD, SUAREZ, CORTINAS, ROTHENBERG, LAGOA and SALTER, JJ.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

The motion for rehearing en banc is denied.

RAMIREZ, C.J., and CORTINAS, ROTHENBERG, LAGOA, and SALTER, JJ., concur.

GERSTEN, J. specially concurring with Judge WELLS's dissent from the denial of Rehearing En Banc.

I concur with Judge Wells's dissent, would grant rehearing en banc, withdraw the panel opinion, and affirm the Department of Community Affairs' ("Department") order. I write separately to explain my reasoning for respectfully disagreeing with the majority's analysis in this case. First, I will discuss why a proper analysis requires separating land use planning from zoning matters. Then, I will review the findings of fact and legal conclusions which support the City's land use planning decision in this case.

Factual Background

Balbino Investments, LLC ("Balbino") requested a small scale amendment to the Future Land Use Map ("FLUM Amendment") of the Miami Comprehensive Neighborhood Plan ("Comprehensive Plan"). The City of Miami ("City") approved the FLUM Amendment, changing the land use designation of Balbino's property on the Miami River from Industrial to Restricted Commercial.⁴

4 The City also approved a zoning change from SD 4.2 Waterfront Industrial to C-1 Restricted Commercial, and a major use special permit to allow Balbino to build two 12-story residential buildings, marina, river walk promenade, and commercial office space.

Herbert Payne, Ann Stetser, The Durham Park Neighborhood Association, Inc., and the Miami River Marine Group, Inc. (collectively "petitioners") petitioned the Division of Administrative Hearing ("DOAH"), challenging the ordinance that approved the FLUM Amendment. After an evidentiary hearing, the ALJ issued a recommended order. The order concluded that it was fairly debatable that: (1) the amendment was internally consistent with other provisions of the plan; and (2) the plan amendment analysis was supported by professionally acceptable data. Subsequently, the Department adopted the ALJ's order.

The petitioners appealed the ALJ's order, and this Court reversed. Balbino moved for rehearing and rehearing en banc. This Court denied the rehearing, but substituted a revised opinion, and denied the rehearing en banc outright.

On motions for rehearing, the petitioners contend that: (1) the ALJ erred in striking certain provisions of the Comprehensive Plan; (2) the FLUM Amendment is inconsistent with the Comprehensive Plan; and (3) the City did not perform the necessary concurrency analysis. Balbino asserts that: (1) the ALJ did not err because the stricken provisions are irrelevant, relating to zoning only; (2) the FLUM Amendment is consistent with the Comprehensive Plan; and (3) the City relied on professionally accepted sources on concurrency. I agree with Balbino and would affirm the ALJ's order.

Standard of Review

Our review of this case is limited by section 120.68, Florida Statutes (2004). The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when it finds that, among other things: "the agency's action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to sections 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact." See § 120.68(7)(b), Fla. Stat. (2004).

Here, there was competent, substantial evidence to support the ALJ's findings. The majority's overbroad analysis improperly reweighs the evidence on the Comprehensive Plan and concurrency in direct violation of section 120.68(7)(b).

Land Use Planning versus Zoning

A comprehensive plan is a statutorily mandated legislative plan to control and direct the use and development of property within a county or municipality. See § 163.3167(1), Fla. Stat. (2004). A comprehensive plan acts as a constitution for all future development within the governmental boundary. Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987). Zoning, on the other hand, is the means by which a comprehensive plan is implemented. 519 So.2d at 632. "The present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan." Bd. of County Comm'rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993).

Land use planning and zoning are different exercises of sovereign power, and a proper analysis requires that courts consider them separately. Machado, 519 So.2d at 631. Moreover, a joint analysis is unnecessary when the new land use designation is not wholly inconsistent with the current zoning. Snyder, 627 So.2d at 469.

Here, the record shows that zoning follows planning in the City's practices. The assistant director to the Miami Planning Department ("the AD") testified that the City Commission "vote[s] separately on the Comp Plan Amendment, the zoning change, and the major use special permit. They don't take one vote. They have to consider them separately because they have separate criteria." She also testified that in the City's procedure for considering planning and zoning changes, the City Commission is "scheduled [to vote on] the land use amendment . . . first, because you can't change the zoning if the Comp Plan has not been changed."

Additionally, both the present zoning, "SD 4.2 Waterfront," and requested land use, "Commercial Industrial," include commercial marinas and living quarters on vessels. Thus, because the proposed land use designation is not wholly inconsistent with the present zoning, there is no need to consider zoning matters in deciding on the FLUM amendment. The Commission, therefore, was free to approve the FLUM Amendment without approving any subsequent zoning change. Accordingly, the ALJ properly excluded consideration of any provisions that dealt solely with zoning as irrelevant.

Land Use Planning Analysis

Accordingly, I review the ALJ's conclusions as to those provisions in the Comprehensive Plan which apply to land use, and not to those that apply to zoning. I also focus solely on the evidence relating to the land use goals, objectives, and policies:

Land Use Goal LU-1

This goal requires that the city

"[m]aintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and growth of job opportunities in the city; . . . (5) promotes the efficient use of land and minimizes land use conflicts; and (6) protects and conserves the city's significant natural and coastal resources."

I will discuss separately the ALJ's finding as to each of these land use pattern goals.

A. Residential Neighborhood Quality of Life

The ALJ found that the property was surrounded by residential neighborhoods and eliminated the potential for industrial development that may generate noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact. It also found that the property would enhance the quality of life for the residents of Allapattah. There was witness testimony from the ALJ and City Commission hearings to support a finding that the property is surrounded by residential neighborhoods. The industrial classification in the Comprehensive Plan specifies that industrial land may be used for the aforementioned nuisances. The majority substitutes this finding with the assertion from a non-expert witness that the proposed project (not the land use change) may create traffic. This assertion is improper.

B. Revitalization of Blighted Areas

The ALJ found that the property is located in Allapattah, which, according to expert testimony, "has been a neighborhood development zone, a community development target area, [which means] it's generally one of the poorer neighborhoods in the city." The majority substitutes this finding with its finding that while some of the neighborhoods in Allapattah are declining, "studies show that [other neighborhoods in Allapattah] are `thriving.'" Thus, the majority improperly re-weighed another piece of evidence.

C. Economic Development and Job Growth

The ALJ found that there was no persuasive evidence to support that the change in land use would negatively impact economic development and job growth. Perhaps this was because the property could continue operating as a commercial marina after the land use change became effective.

The majority argues that protecting the potential for marine industry jobs is more important than providing housing close to an established major employment center. This argument is contingent upon rezoning and approval of the proposed project, which as mentioned above, is not relevant here.

D. Efficient Land Use

The ALJ found that there is no evidence that the FLUM Amendment is inconsistent with the concept of promotion of efficient use of land. The AD testified:

[t]he restricted commercial classification is more appropriate for this particular piece of property than the industrial classification for which it was comp planned because of its proximity to the residential neighborhoods.

This is not a segment — it's not a piece of property that was currently being used for heavy industrial use. It wasn't being used for shipping or anything that was loud or smoke or fumes. It's got [single family residential property] right across the way from it. It's got two other residential properties next to it. The residential areas around it would be more detrimentally impacted by a heavy industrial use than by a restricted commercial use.

The majority does not contest this finding.

E. Conservation of Natural and Coastal Resources

The ALJ found that there was no evidence that the FLUM Amendment is inconsistent with subpart (6). The finding is bolstered by witness testimony that "the land use change in and of itself is not inconsistent with [subpart (6)]. It's how the property is developed and how they actually build on it where the City will have to enforce if it's not [consistent]." Thus, the majority mistakenly reads subsection (6) as protecting and conserving natural and coastal resources so that only marine industry may use them.

Land Use Objective LU 1.2

This objective requires that the City "[p]romote the redevelopment and revitalization of blighted, declining or threatened residential, commercial, and industrial areas."

The ALJ stated that because Allapattah is a declining residential neighborhood, the FLUM Amendment will promote redevelopment. This finding is somewhat misleading, but not wholly incorrect. The FLUM Amendment does not affect this objective. It does not promote any specific redevelopment or revitalization, but it does not discourage redevelopment or revitalization either. It simply allows for a different form of redevelopment. Therefore, this finding was proper.

Land Use Objective LU 1.3

This objective requires that:

The city will continue to encourage commercial, office and industrial development within existing commercial office and industrial areas, increase the utilization and enhance the physical character and appearance of existing buildings; and concentrate new commercial and industrial activity in areas where the capacity of existing public facilities can meet or exceed the minimum standards for Level of Service adopted in the Capital Improvement Element.

The ALJ found that the FLUM Amendment is consistent with this objective because the new land use designation, by definition, allows commercial office use. The ALJ also found that the concurrency analysis the City performed shows approval of the FLUM Amendment alone will not result in a failure of existing public facilities to meet or exceed applicable level of service standards. Thus, these findings are supported by the Comprehensive Plan itself and the City's concurrency analysis.

Coastal Management Objectives and Policy

Coastal Management Element Objective 3.1 requires that the City "[a]llow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami." Coastal Management Policy 3.1.1 states that, "Future land use and development regulations will encourage water dependent uses along the shore line."

It is a definitional impossibility that a land use amendment can come into conflict with this objective or its policy. As explained at the ALJ hearing, "[n]either the industrial category nor the restricted commercial category are water-dependent categories . . . whether it's restricted commercial or industrial land use is irrelevant for this objective, because neither one is a water-dependent classification." Further, there is no land use classification that permits water dependent uses.

The majority substitutes the ALJ's finding with the testimony of the petitioners' witness that "the use of this parcel under industrial must be water dependent and the use under the change need not be." The Comprehensive Plan refutes this assertion because it does not define the industrial classification or the restricted commercial classification as "water-dependent." Therefore, the majority's assertion improperly relies on a zoning analysis and not a planning analysis.

Port of Miami River Objective ⁵

5 I concur with Judge Wells's dissent that the ALJ not only officially recognized this Court's decision in Payne II, but considered and applied the broad definition of the Port of Miami River from Payne II. The ALJ did not consider most of the provisions because they were applicable to zoning only.

Port of Miami River Objective 3.3 states "The City of Miami shall coordinate its Port of Miami River planning activities with those of port facilities and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County's Port of Miami."

The ALJ found that the petitioners failed to present any evidence concerning a lack of coordination relative to the FLUM Amendment. There was competent evidence in the record that the Planning Department coordinated with the Miami River Commission, and then recommended accordingly to the City Commission.

Thus, the ALJ properly considered only those provisions of the Comprehensive Plan relating to planning issues. Further, the ALJ had competent substantial evidence that the FLUM Amendment was not inconsistent with the relevant portions of the Comprehensive Plan. Testimony from the record shows that the FLUM Amendment advanced the majority of relevant Comprehensive Plan goals, policies, and objectives. Accordingly, I would affirm the ALJ's conclusion that the FLUM Amendment was consistent with the Comprehensive Plan.

Concurrency Analysis

I also disagree with the majority's analysis of the concurrency requirements relating to this FLUM amendment. Again, the majority fails to distinguish between the land use planning decision and any future zoning decision.

Florida's Local Government Comprehensive Planning and Land Development Regulation Act requires that comprehensive plans consider the water supply sources necessary to meet and achieve existing and projected water use demands. § 163.3167(13), Fla. Stat. (2004). Further, section 163.3180, Florida Statutes (2004), provides that concurrency requirements regarding sanitary sewer, solid waste, drainage, potable water facilities be met prior to any development.

As related to sanitary sewer, solid waste, drainage, and potable water, the statute states that appropriate facilities "shall be in place and available to serve new development no later than the issuance by the local government of a certificate of occupancy or its functional equivalent." § 163.3180(2)(a).

This statute clearly indicates that concurrency must be met on a time frame that relates to development of a property. Not surprisingly, the specific development data the majority asks for is not part of the record in this land use decision.

Florida Administrative Code Rule 9J-5.005(2)(a) states, "[a]ll goals, objectives, policies, standards, findings and conclusions . . . within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element." The rule further states that the Planning Department will determine whether the data was collected and applied in a professionally accepted manner. Therefore, the rule requires that any assertion in the Comprehensive Plan or amendment be based on data which the Planning Department determines to be from a professionally acceptable source. Here, the AD, a Planning Department employee, testified that the data used was professionally acceptable. The majority finds that the testimony of the petitioners' witness carries more weight on the issue. However, the petitioners' witness is not a Planning Department employee. This substitution deprives the Planning Department of an express statutory responsibility to determine whether data is professionally acceptable.

Additionally, the FLUM Amendment support documents did not mislead the City Commission by making unfounded assertions. In fact, the FLUM Amendments support documents explicitly stated when data was not known or was unavailable. The FLUM Amendments supporting documents met the requirement of only relying on data from professional sources. Therefore, concurrency requirements for the FLUM Amendment were clearly satisfied.

Conclusion

After a careful review of the record, I agree with Judge Wells's dissent from the denial of rehearing en banc. The ALJ properly considered only those provisions of the Comprehensive Plan relevant to land use planning. There is competent, substantial evidence to support the ALJ's findings that the FLUM Amendment is consistent with the Comprehensive Plan. Further, the City relied on appropriate data to make its concurrency determination. Accordingly, I would affirm the Department's order.

SHEPHERD, J., concurs.

WELLS, Judge, dissenting from denial of Rehearing En Banc.

I would grant rehearing en banc, withdraw the panel opinion, and affirm the order of the Department of Community Affairs which adopted the recommended order of the administrative law judge (ALJ) finding the small scale amendment at issue consistent with the Miami Comprehensive Neighborhood Plan. I would do so for the following reasons.

First, the opinion improperly reweighs the evidence in direct contravention of section 120.68(7)(b) of the Florida Statutes which, as pertinent here, expressly provides that although a court may set aside agency action when it finds that "agency action depends on any finding of fact that is not supported by competent, substantial evidence in the record," the court may not "substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact."

Second, the opinion ignores controlling precedent which establishes that land use planning and zoning are two distinct exercises of sovereign power which must be considered separately. That is, in reversing the underlying order, the opinion improperly considers zoning in this land use planning determination to come to a conclusion that land use planning must be consistent with zoning, in contravention of:

• Machado v. Musgrove, 519 So.2d 629, 631 (Fla. 3d DCA 1987):

Land use planning and zoning are different exercises of sovereign power, . . . therefore, a proper analysis, for review purposes, requires that they be considered separately.

(Citations omitted);

• Martin County v. Yusem, 690 So.2d 1288, 1293, 1294 (Fla. 1997), holding that an amendment to a comprehensive plan even though combined with a rezoning application, must be considered separate and apart from the rezoning request:

[W]e expressly conclude that amendments to comprehensive land use plans are legislative decisions. This conclusion is not affected by the fact that the amendments to comprehensive land use plans are being sought as part of a rezoning application in respect to only one piece of property.

(Footnote omitted);

• Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 475 (Fla. 1993), confirming that zoning follows planning, not the other way around:

[A] comprehensive plan only establishes a long-range maximum limit on the possible intensity of land use; a plan does not simultaneously establish an immediate minimum limit on the possible intensity of land use. The present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan.

(quoting Marracci v. City of Scappoose, 26 Or.App. 131, 552 P.2d 552, 553 (1976)).

Reviewing what occurred here, a land-owner applied for a section 163.3187 small scale development amendment to a future land use map (FLUM).^{6 i} § 163.3187(1)(c), Fla. Stat. (2004).⁷ As in Coastal Development of North Florida, Inc. v. City of Jacksonville Beach, 788 So.2d 204 (Fla. 2001), the landowner also sought to have the property rezoned. There the Florida Supreme Court confirmed that "small-scale development amendments . . . are legislative decisions." Id. at 210. Moreover, "[b]y its very nature, a proposed amendment to the FLUM, as an element of the comprehensive plan, requires policy reformulation because the amendment seeks a change to the FLUM." Id. at 209.

6 The opinion which follows contains both footnotes, as indicated by Arabic numerals (1, etc.), and endnotes, as indicated by Roman numerals (i, etc.).

7 This section, in pertinent part, provides:

(1) Amendments to comprehensive plans adopted pursuant to this part may be made not more than two times during any calendar year, except:

. . . .

(c) Any local government plan amendments directly related to proposed small scale development activities. . . . A small scale development amendment may be adopted only under the following conditions:

1. The proposed amendment involves a use of 10 acres or fewer and:

a. The cumulative annual effect of the acreage for all small scale development amendments adopted by the local government shall not exceed:

(I) A maximum of 120 acres in a local government that contains areas specifically designated in the local comprehensive plan for urban infill, urban redevelopment, or downtown revitalization. . . .

(II) A maximum of 80 acres in a local government that does not contain any of the designated areas set forth in sub-sub-subparagraph (I).

(III) A maximum of 120 acres in a county established pursuant to s. 9, Art. VIII of the State Constitution.

b. The proposed amendment does not involve the same property granted a change within the prior 12 months.

c. The proposed amendment does not involve the same owner's property within 200 feet of property granted a change within the prior 12 months.

d. The proposed amendment does not involve a text change to the goals, policies, and objectives of the local government's comprehensive plan, but only proposes a land use change to the future land use map for a site-specific small scale development activity.

e. The property that is the subject of the proposed amendment is not located within an area of critical state concern, unless the project . . . involves the construction of affordable housing units

. . . .

f. If the proposed amendment involves a residential land use, the residential land use has a density of 10 units or less per acre, except that this limitation does not apply to small scale amendments . . . that are designated in the local comprehensive plan for urban infill. . . .

§ 163.3187(1)(c)1.a-f, Fla. Stat. (2004).

The City of Miami, as was authorized by section 163.3187 of the Florida Statutes, decided to reformulate its policy regarding the property at issue. The City decided to change the property's designation on the FLUM from Industrial to Restricted Commercial, based, in significant part, on the analysis of the City's professional staff.

Petitioners sought administrative review of this legislative decision claiming that this amendment was inconsistent with virtually the entire Plan. Following an evidentiary hearing, during which City officials as well as neighboring property owners testified, an ALJ concluded that the City's decision was "fairly debatable."⁸ The ALJ recommended to the Department of Community Affairs (herein, Department) that the City's reformulation of its Plan for this property be approved. The Department, the state agency charged with oversight of all municipal comprehensive plans, agreed with the ALJ's conclusions and found the amendment to be "in compliance." See § 163.3164(20), Fla. Stat. (2004) (defining the term "state land planning agency" as the Department of Community Affairs); Coastal Dev., 788 So.2d at 207 (confirming the Department's state-wide oversight of plan amendments).⁹

8 The fairly debatable standard of review that is to be applied to the instant section 163.3187 small scale amendment is a "highly v deferential" standard which mandates approval of a FLUM amendment where, for any reason, it can be said that such a legislative decision is open to dispute on grounds that make sense:

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. In other words, an 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.

Yusem, 690 So.2d at 1295 (citations and initial quotation marks removed); Coastal Dev., 788 So.2d at 205 n. 1 (applying the fairly debatable standard to section 163. 3187(1)(c) small scale FLUM amendments).

9 See § 163.3187(3)(b)1-2, Fla. Stat. (2004) ("If the administrative law judge recommends that the small scale development amendment be found in compliance, the administrative law judge shall submit the recommended order to the state land planning agency. . . . If the state land planning agency determines that the plan amendment is in compliance, the agency shall enter a final order.").

With competent substantial evidence supporting the Department's decision and the City's legislative reformulation of its Plan being fairly debatable, and with Petitioners having failed to demonstrate any inconsistency between that reformulation and the remainder of the Plan, the Department's determination should have been affirmed by this court.

FACTS

Balbino Investments, LLC is the owner of a parcel of land located at 18th Avenue and Northwest North River Drive in Allapattah. This parcel of property is located on the northern side of the Miami River and is bounded on the south by the river, on the north by Northwest North River Drive, on the east by a condominium development, and on the west by a privately owned marina. A residential neighborhood, Durham Park, comprised primarily of single family homes, lies across the Miami River to the south.

This property, previously used as a commercial marina that accommodated self-help boat repairs, is in a deteriorating neighborhood located directly west of the Jackson Memorial Hospital/University of Miami Medical School complex, the Cedars Medical Center, a Veterans Administration Hospital complex, and the Metropolitan Justice Center where a jail, the State Attorney's office, Miami-Dade County's criminal courts, and other government offices are located. Literally thousands of people work in this inner-city complex.

UNDERLYING PROCEEDINGS Proceedings before the City Commission

In December 2003, Balbino filed a section 163.3187(1)(c) application with the City of Miami seeking a small scale amendment to the FLUM to change the land use designation of this property from Industrial and General Commercial to Restricted Commercial. Balbino also sought to rezone the property to permit a 1075 unit, affordable housing¹⁰ condominium complex with a riverfront restaurant, grade level townhouses lining the riverfront, 100 slip-marina, and public "river-walk" promenade connecting the development to a nearby public park.

10 The proposed starting price for one of these units is $167,000.

Balbino's applications were approved by the City of Miami Commission following a public hearing during which the Commission heard testimony from a number of witnesses both for and against the project. Those in favor of the applications included the City's Assistant Planning Director, on behalf of the Planning Director — the individual expressly charged in the Plan with "making all determinations of concurrency as defined in state statutes, and . . . interpre[ing] the [future land use] map based on all applicable state laws and administrative regulations and on consistency between the proposed change or changes and the goals, objectives, and policies expressed in the [Plan]." See Miami Comprehensive Neighborhood Plan, Vol. I, Interpretation of the Future Land Use Map, p. 13, paragraph 2.¹¹

11 The parties relied on the August 2004 version of the Miami Comprehensive Neighborhood Plan, which is quoted extensively herein, with emphasis as in the original.

The Assistant Planning Director confirmed that the requested FLUM amendment met all applicable concurrency requirements related to recreation and open space, potable water transmission," storm sewer transmission, solid waste collection, and traffic circulation, and that the requested amendment was consistent with the Plan. A number of residents of the condominium complex immediately to the east of the proposed project also testified about the positive impact the project would have on their property and neighborhood. Residents of Allapattah testified their support for the project citing the revitalizing impact it would have on their deteriorating neighborhood.

The owner of the then-derelict marina located immediately to the west of the proposed project also supported the project for the positive impact it would have on marine businesses on the river:

Ms. Wiseheart-Joyce: Right now, [our 88 boat slips] are empty and I'll tell you how that came to be. Our dad bought the property in the early 1940s and leased it to the Hardy's, who ran it as Hardy's Boatyard . . . for the past 60 years. Last year, the Hardy's moved out and gave the property back to us empty, so we put the property on the market to sell it, but when we heard about . . . [Balbino's] project . . . and the bright future that [it] was going to bring to Allapattah and to the river, we took it off the market. We decided to fix it up. It was our motivation to put money into the project. We're going to build a dock master's house and run it as a marina, and I think that's why [the project] is going to be good for the river. It's going to bring people to live on the river, people who are going to have boats, and if they don't already have boats, when they get there and see how nice it is, they're going to want to have boats, and we hope they're going to keep them at our marina. I know [the project] is going to have over 100 slips of their own; they're going to have a big marina, but we hope there's going to be a lot of people that want to keep their boats with us. Now they're going to also want to have their boats repaired at places nearby, so other businesses are going to benefit. [This project] is going to bring jobs and life to the river.

The owner of the Miami Yacht and Engine Works (the Cummins engine dealer and a Port of Miami River "member") also welcomed the project for the increased vitality and business — Port of Miami River business — that it would generate.

The project was opposed by the residents of Durham Park, the single-family neighborhood across the river from the proposed project, who did not want multistory buildings across the river from their single family homes. The Port of Miami River Group, Inc., an entity representing marine and industrial business owners along the Miami River, also objected to the project. It claimed that this and two other pending projects would leave only 39 of the 79 acres of marine industrial property that existed in 2000 for industrial and commercial uses in the "Port of Miami River," a reduction that would, according to its expert, create an inconsistency between the FLUM and the text of the Plan, with its goals and policies designed to encourage and expand the Port of Miami River.

Finding that the project met section 163.3187 requirements, the City approved Balbino's application for a small scale amendment to the Plan, concluding:

Section 3. It is found that this Comprehensive Plan designation change:

(a) is necessary due to changed or changing conditions;

(b) involves a residential land use of 10 acres or less and a density of less than 10 units per acre or involves other land use categories, singularly or in combination with residential use, of 10 acres or less and does not, in combination with other changes during the last year, produce a cumulative effect of having changed more than 60 acres through the use of "Small Scale development" procedures;

(c) is one which involves property that has not been the specific subject of a Comprehensive Plan change within the prior twelve months;

(d) is one which does not involve the same owner's property within 200 feet of property that has been granted a Comprehensive Plan change within the prior twelve months;

(e) the proposed amendment does not involve a text change to goals, policies, and objectives of the local government's comprehensive plan, but proposes a land use change to the future land use map for a site-specific development; and

(f) is one which is not located within an area of critical state concern.

This small scale amendment is the only order under review here.

Proceedings before the Administrative Law Judge

Herbert Payne, the operator of a tug-boat and towing business on the Miami River, Ann Stetser, a resident in a neigh-boring condominium complex, the Miami River Marine Group, and the Durham Park Neighborhood Association, Inc., petitioned for administrative review of the City Commission's decision."ⁱⁱⁱ

Their amended petition made three claims: first, it claimed that the gross lot area of Balbino's parcel exceeded the 10 acre limit for a small scale amendment; second, it claimed that there is no data or analytical support for the Commission's determination that Balbino's application met concurrency requirements (that is, that it satisfied sanitary and storm sewers, potable water, solid waste collection, transportation, parks, recreation and open space, coastal management, natural resources, capital improvements, and inter-governmental coordination requirements); and, third, it claimed that the FLUM amendment was inconsistent with virtually every portion of the Plan. The petition did not claim that the amendment "produced a cumulative effect of having changed more than 60 acres."

The testimony presented at the administrative hearing which followed was generally the same as that presented to the City Commission. The assistant director of the City's Planning Department, Lourdes Slazyk,^iv testified that for the past twenty two years, the City had used net lot area, not gross lot area, for calculating lot size for comprehensive planning purposes and that the net lot area of this parcel is 7.91 acres. Ms. Slazyk also testified that data and information supporting this application were submitted, gathered, investigated, and considered by the City's various departments, committees, and independent consultants which determined that this application satisfied all applicable concurrency requirements (that is, it satisfied the requirements governing sanitary and storm sewers, potable water, solid waste collection, transportation, parks, recreation and open space, coastal management, natural resources, capital improvements, and intergovernmental coordination requirements).

The testimony also was: (1) that the property is located in one of Miami's poorest neighborhoods, which has been designated as a community redevelopment zone; (2) that the property is located only a few blocks from the Civic Center and the Jackson Memorial/University of Miami/Veterans' Administration/Cedars Medical Center Complex, which is the second highest employment center in the City with many thousands of employees; (3) that the property is located in a neighborhood with virtually no affordable housing for these employees; and (4) that the property is located in close proximity to public transportation (Metrorail), all of which makes changing the designation of this property from Industrial and General Commercial to Restricted Commercial consistent with the multiple goals of revitalizing a struggling residential neighborhood, reducing urban sprawl, decreasing traffic and stress on infrastructure, and conserving resources.

Based on this testimony, the ALJ hearing the matter found that Balbino's project did not exceed the 10 acre limit for a small scale amendment, that it was supported by professionally acceptable data and analysis and that it was "fairly debatable that . . . the City reacted to that data and analysis in an appropriate manner."^v

The ALJ also found that Petitioners had failed to adduce any evidence whatsoever, and had, therefore, failed to satisfy their (Petitioners') burden of proving, that the FLUM amendment was inconsistent with some fifteen provisions of the Plan as Petitioners claimed.^vi See Miami Comprehensive Neighborhood Plan, Volume I, Policy LU-1.2.3, ^vii Policy LU-1.3.1,^viii Objective HO-1.1,^ix Objective HO-1.2,^x Objective SS-1.4,^xi Objective SS-2.1,^xii Objective SS-2.2,^xiii Objective SS-2.5,^xiv Objective SW-1.1,"^xv Objective PE-1.1,^xvi Objective PR-1.4,^xvii Objective CM-1.1.,^xviii Objective CM-2.1,^xix Objective CM-4.2,^XX Objective NR-1.1,^xxi Objective NR-1.2,^xxii Objective NR-3.2,^xxiii Objective CI-1.3.^xxiv

The ALJ also found that Petitioners had failed to carry their burden of proof with regard to ten remaining claims. Specifically, the ALJ rejected Petitioners' claim that the requested change was inconsistent with Plan Goal LU-1 and Objective LU-1.2.

Goal LU-1 sets a goal for the City to:

Maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city; (4) fosters the growth and development of downtown as a regional center of domestic and international commerce, culture and entertainment; (5) promotes the efficient use of land and minimizes land use conflicts; and (6) protects and conserves the city's natural and coastal resources.

Miami Comprehensive Neighborhood Plan, Volume I, Goal LU-1. Objective LU-1.2 states one of the objectives of this goal is to "[p]romote the redevelopment and revitalization of blighted, declining or threatened residential, commercial and industrial areas." Miami Comprehensive Neighborhood Plan, Volume I, Objective LU-1.2.

Based on testimony that this property is located near other residential properties, including a multi-story condominium next door; that this property is located in Allapattah, a poor neighborhood designated for redevelopment and revitalization; that this property is located near the City's hospital and civic centers where thousands of people are employed; that there is a lack of affordable housing in the City available for these employees; and that this Plan amendment will bring people back to the City thereby reducing urban sprawl and pressure on infrastructure and resources, the ALJ concluded that this Plan amendment was consistent with this land use goal and objective. The ALJ also concluded that changing the designation of this property to Restricted Commercial, and thereby eliminating the "excessive . . . noise, smoke, fumes, illumination, traffic, hazardous wastes, [and] negative visual impacts]" permitted in industrial areas, was not inconsistent with the criteria stated in Goal LU-1 and the objective stated in Objective LU-1.2 of the Plan.

The ALJ also found no testimony to support a conclusion that this small scale amendment is inconsistent with the criteria stated in Objective LU-1.3:

The City will continue to encourage commercial, office and industrial development within existing commercial, office and industrial areas; increase the utilization and enhance the physical character and appearance of existing buildings; and concentrate new commercial and industrial activity in areas where the capacity of existing public facilities can meet or exceed the minimum standards for Level of Service (LOS) adopted in the Capital Improvement Element (CIE).

Miami Comprehensive Neighborhood Plan, Volume I, Objective LU-1.3.

The testimony was that this property had no structures on it to enhance and that it had never been used for industrial purposes. While the FLUM amendment in this case does eliminate future industrial uses on this particular parcel of property, the new designation will continue to permit commercial and office uses. As the ALJ found, the City's concurrency analysis, which was not rebutted, confirms that the amendment meets LOS minimum standards.

The ALJ similarly found that Petitioners had failed to demonstrate any inconsistency between the amendment and the policy stated in Policy LU-1.3.6 of continuing "to encourage a diversification in the mix of industrial and commercial activities and tenants through strategic and comprehensive marketing and promotion efforts so that the local economy is buffered from national and international cycles," with particular emphasis on the "River Corridor," among other areas. Miami Comprehensive Neighborhood Plan, Volume I, Policy 1.3.6 (emphasis added). Other than the fact that no testimony was adduced regarding the City's marketing and promotional efforts, the ALJ noted that the amendment permitted greater flexibility in developing this property thereby complying with this policy.

The ALJ found Objective LU-1.6, the stated objective of which is to "[r]egulate the development and redevelopment of real property within the city," Miami Comprehensive Neighborhood Plan, Volume I, Objective LU-1.6, to be irrelevant because this objective, along with its underlying policies, relate to land development — zoning — not planning. The ALJ also found no proof of inconsistency between this objective and the amendment.

The ALJ also found no evidence to show-that the amendment was inconsistent with the objective stated in Objective PW-1.2: to "[e]nsure adequate levels of safe potable water are available to meet the needs of the city." Miami Comprehensive Neighborhood Plan, Volume I, Objective PW-1.2. The unrebutted testimony was that potable water is provided to the City by Miami-Dade County and that the City relies on the County to determine whether sufficient potable water is available. The City, according to expert testimony, enforces compliance with the County's determination at the permitting stage so that "not a single brick may go into the ground" unless the County has confirmed that potable water is available. Because there was no testimony that this amendment will result in a shortage of potable water or that this objective does not permit the City to rely on the County's analysis regarding this criterion, ¹² the ALJ concluded that no inconsistency had been demonstrated.

12 Section 163.3180(2)(a) of the Florida Statutes, governing concurrency, expressly authorizes local governments to "consult with the applicable water supplier to determine whether adequate water supplies" will be available and has until issuance of "a certificate of occupancy or its functional equivalent" to do so.

Because Petitioners' expert witness conceded that he had no expertise in traffic analysis and that the person who performed this analysis for the City had the appropriate expertise, the ALJ concluded that there was no evidence to demonstrate an inconsistency between this amendment and Objective TR-1.1 relating to roadways and traffic.^xxv

The ALJ also found no inconsistency between the amendment and Objective CM-3.1, which stated objective is to "[a]llow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami." Miami Comprehensive Neighborhood Plan, Volume I, Objective CM-3.1. As the ALJ recognized, a water-dependent use is defined as a use which can "be carried out only on, in or adjacent to water areas because the use requires access to the water body for: water-borne transportation. . . ." Fla. Admin. Code R. 9J-5.003(137). Because this parcel of property was in an area designated Industrial and General Commercial, which carry no requirement that property be used for any water-related or water-dependent purpose, the ALJ recognized that changing its designation to Restricted Commercial, which like the Industrial and General Commercial designations permit water-related and water-dependent uses, created no inconsistency.

The ALJ also found that the testimony that this property had previously been used as a destination for boats seeking shelter from hurricanes created no inconsistency with Objective CM-3.1, because this objective imposes no obligation on any water-front property owner, whether or not that owner uses that property for water-related or water-dependent purposes, to provide hurricane boat-shelters to members of the public.

While the parties agreed that manatees could be found in the Miami River, the ALJ found that there was no evidence that this amendment would adversely impact them so as to create an inconsistency with Objective NR-1.3 providing for maintenance and enhancement of native species of fauna and flora. See Miami Comprehensive Neighborhood Plan, Volume I, Objective NR-1.3. Rather, the ALJ found that "[i]t is fair to conclude that by eliminating the potential for development that might include such uses that involve noise, fumes, smoke, and hazardous wastes [which are permitted in industrial areas], this [amendment from Industrial and General Commercial to Restricted Commercial] will enhance the status of native species of flora and fauna."

The ALJ rejected the claim of an inconsistency between the amendment and Objective CI-1.4, which states the objective of "[e]nsur[ing] that public capital expenditure within the coastal zone does not encourage private development that is subject to significant risk of storm damage", observing in part that "[t]he amendment does not trigger the expenditure of public funds for capital improvements."

Finally, the ALJ found no evidence of an inconsistency between the Port of Miami River sub-element and this amendment. Concluding that only Objective PA-3.3 applied to this amendment, the ALJ found that there was no evidence that the City failed to coordinate Port of Miami River planning with other port facilities and regulators including the U.S. Corps of Engineers, the U.S. Coast Guard, and Miami-Dade County's Port of Miami. The evidence with regard to this objective was that pursuant to state law and City ordinance, the City submitted this amendment to the Miami River Commission, which took testimony, considered the application, and made a recommendation to the City Commission. While the River Commission recommended against this amendment, there is no requirement in this objective that the City follow the Commission's recommendation.

Based on this evidence and these findings, the ALJ recommended that the Department of Community Affairs approve the small scale amendment granted by the City.

Proceedings before the Department of Community Affairs

Petitioners filed extensive exceptions to the ALJ's recommendations with the Department of Community Affairs rearguing their entire case. As pertinent here, Petitioners claimed that:

(1) although the ALJ considered claims that the instant small scale amendment was inconsistent with 25 Goals, Objectives, and Policies stated in the comprehensive plan, the ALJ erred in striking their claims with regard to an additional 28 Goals, Objectives, and Policies because consideration of these Goals, Objectives, and Policies was necessary "to understand the planning framework . . . [and to review] the plan as a whole";^XXVi

(2) the ALJ improperly refused to recognize Payne v. City of Miami 927 So.2d 904 (Fla. 3d DCA 2006) (" Payne II"), and in doing so improperly excluded evidence relating to "the meaning and application of the goals, objectives and policies in the subpart of the comprehensive plan called the `Port of Miami River`";

(3) the ALJ focused too narrowly on what portions of the comprehensive plan were relevant and "failed to consider all the goals objectives and policies under goal PA-3 which collectively are intended to maintain a water-dependent/water-related marine industrial character within the river corridor";

(4) the ALJ erroneously relied on the Miami River Master Plan for delineating the location of the lower, middle, and upper river districts and making his recommendations and then ignored the zoning designation that same plan imposes on this property;

(5) the ALJ erred in relying on data contained in the Miami River Master Plan rather than that contained in the Miami River Corridor Urban In-fill Plan" "^XXVii to support the conclusion that the small scale amendment was appropriate for redevelopment of the Allapattah are

(6) the size of the parcel exceeds ten acres taking it outside the provisions governing small scale plan amendments;

(7) the ALJ erred in applying a "fairly debatable" standard of review rather than determining whether Petitioners' claims were supported by a preponderance of the evidence and consequently: (1) disregarded their evidence that the amendment was inconsistent with Goal LU-1 and its subparts; (2) overlooked their evidence that the amendment will generate excessive traffic and be out of scale with the single family neighborhood across the river; (3) overlooked their evidence that the amendment will hamper redevelopment and revitalization of the marine industries on the river; (4) ignored their evidence that converting water-dependent uses will negatively impact marine uses on the Miami River; (5) ignored their evidence that high density multifamily residential developments miles from the City center hinders development of the downtown area and results in urban sprawl; (6) ignored their evidence that the amendment is inconsistent with the marine industrial uses on the River; and (7) ignored their evidence "regarding conservation of the water-dependent uses on the Miami River, which by definition is part of the city's coastal resources";

(8) the amendment is not supported by professionally acceptable data and analysis because the ALJ relied on data from the Miami River Master Plan rather than data from the Miami River Corridor Urban Infill Plan and in doing so ignored data (1) from the United States Coast Guard; (2) about manatee protection; (3) about potable water and sanitary sewers; and (4) about conditions in Allapattah; and,

(9) the Port of Miami River Sub-Element is not an optional part of the comprehensive plan and that by so defining it the ALJ improperly excluded from consideration all but Objective PA-3.3 and failed to consider any input from the Coast Guard or the Miami River Marine Group in making its determination.

Following a review of the entire record, the Secretary of the Department of Community Affairs agreed that the ALJ had improperly applied the "fairly debatable" standard in making two findings and, noting that these findings did not change the ultimate outcome, eliminated them from the recommended order. Other than making a few other minor corrections to the order, the Department rejected the remainder of Petitioners' exceptions primarily because they either improperly argued that the ALJ erred in accepting the evidence adduced by Balbino over that adduced by Petitioners or they reargued positions "repeatedly asserted before the ALJ." See Prysi v. Dep't of Health, 823 So.2d 823, 825 (Fla. 1st DCA 2002) (confirming that agencies cannot reweigh evidence or make supplemental fact findings not made by ALJ's); Lawnwood Med. Ctr. Inc. v. Agency for Health Care Admin., 678 So.2d 421, 425 (Fla. 1st DCA 1996) (same); Britt v. Dep't of Prof I Regulation, 492 So.2d 697, 700 (Fla. 1st DCA 1986), disapproved on other grounds, Dep't of Prof'l Regulation v. Bernal, 531 So.2d 967 (Fla. 1988) (confirming that the agency need not address issues raised and addressed before an ALJ).

The Department also rejected Petitioners' argument that its claims regarding the City's land development ( zoning ) goals, objectives and policies were improperly stricken because "[s]uch goals, objectives, and policies provide direction for later decisions which implement the plan. A plan amendment, such as the subject of this case, does not implement the comprehensive plan, it changes the comprehensive plan . . . [and such land development goal, objectives, and policies] are not appropriate subjects of a compliance proceeding under Chapter 163, Fla. Stat." Payne v. City of Miami, DCA Case No. 06-GM-132, DOAH Case No. 04-2754 (Fla. Dep't of Cmty. Affairs June 21, 2006). It also rejected the claims that the ALJ ignored the decision in Payne II, and that this property was too large to be considered as a small scale amendment. With minor corrections, the remainder of the ALJ's recommendations were accepted, and the "small-scale comprehensive plan amendment adopted by [the City was] determined to be in compliance as defined in § 163.3184(1)(b) (2005)." Id.

OUR REVIEW Proceedings in This Court

Petitioners appealed from the final order entered by the Department of Community Affairs finding the small scale amendment adopted by the City to be "in compliance." Here, Petitioners, now the Appellants, argued, as they had before the Department, that: (1) the Durham Park Neighborhood Association has standing to bring this action; (2) the City may not rely on Miami-Dade County's assessment regarding availability of potable water in determining concurrency; (3) the ALJ erred in striking "certain sections of [their] amended petition"; and, (4) the ALJ improperly ignored this court's decision in Payne II to erroneously prevent them from presenting testimony relating to the Port of Miami River sub-element of the Plan.

Not one of these claims supports reversal of the Department's order.

1. Standing:

First, while I agree that the ALJ erred in concluding that the Durham Park Neighborhood Association did not have standing to prosecute this matter, see Sw. Ranches Homeowners Ass'n v. Broward County, 502 So.2d 931, 934 (Fla. 4th DCA 1987), I find this error to be neither dispositive nor relevant in light of the fact that: (1) there is no dispute that the other Appellants who prosecuted this matter had standing; (2) Durham Park and the remaining parties were all represented by the same counsel; (3) Durham Park's president testified; and (4) Durham Park did not proffer any evidence that it would have adduced but was not adduced as a consequence of this error.

2. Concurrency:

Second, the record confirms that concurrency requirements regarding potable water were met. Section 163.3180(2)(a) governing concurrency expressly authorizes local governments to "consult with the applicable water supplier to determine whether adequate water supplies" will be available and has until issuance of "a certificate of occupancy or its functional equivalent" to confirm availability. § 163.3180(2)(a), Fla. Stat. (2006). The City may, therefore, by law rely on Miami-Dade County's assessment regarding availability of potable water in determining concurrency and has a substantial amount of time beyond the date of the enactment of a Plan amendment to obtain such an assessment. That is precisely what the testimony shows that the City is doing in this case.

3. Application of the City's zoning ordinances to this Plan amendment:

Third, Appellants argue that the ALJ erred in failing to consider those elements of the City's Plan addressing "land development regulations" or "development orders" because, according to Appellants, a zoning change will by necessity immediately follow the Plan amendment without these elements ever having been considered:

If Appellants are not permitted to seek enforcement of FLUM amendments on the River pertaining to the POMR sub-element, the City is capable of altering its land development regulations [zoning ordinances] and issuing development orders [zoning orders] on the River with little or no consideration of the [the Plan].

By definition, land development regulations and orders relate to zoning , not planning. See Bd. of County Commr's of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993) (stating that "an order granting or denying rezoning constitutes a development order"); § 163.3164(7), Fla. Stat. (2006) (defining a development order as "any order granting, denying or granting with conditions an application for a development permit"); § 163.3164(8), Fla. Stat. (2006) (defining a development permit as including "any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land"); § 163.3164(23), Fla. Stat. (2006) (defining land development regulations as "ordinances enacted by governing bodies for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land").

Zoning regulations and orders implement a Plan. They do not control it. See Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987). As this court made clear in Machado, because planning and zoning are two distinct exercises of sovereign power, each must be considered separately. Id. at 631. The fact that rezoning may follow a plan amendment is not, therefore, relevant to a plan amendment determination:

[L]and development regulations are not relevant to a plan or plan amendment compliance determination. Land development regulations must be consistent with the adopted comprehensive plan, not the other way around. The comprehensive plan is implemented by appropriate land development regulations.

Robbins v. Dep't of Cmty. Affairs City of Miami Beach, DCA Case No. 98-051-FOF-GM, DOAH Case No. 97-0754GM, 1997 WL 1432207, at *7 (Dep't of Cmty. Affairs Dec. 9, 1997) (citations omitted); see also Smith v. City of Panama City, Case No. 04-4364GM, 2005 Fla. Div. Adm. Hear. LEXIS 1272, at *54 (DOAH Oct. 6, 2005) ("`[C]onsistency with land development regulations is not a compliance criterion,' because it is not required by the definition of `in compliance' with Subsection 163.3184(1)(b)." (quoting Brevard County v. Dep't of Cmty. Affairs City of Palm Bay, Case Nos. 00-1956GM and 02-0391GM, 2002 WL 31846455, at *11 (DOAH Dec. 16, 2002; DCA Feb. 25, 2003))).

As Snyder, 627 So.2d at 475-76, makes clear, a plan amendment does not make an immediate change in zoning a fait accompli:

[T]he comprehensive plan is intended to provide for the future use of land, which contemplates a gradual and ordered growth. See City of Jacksonville Beach, 461 So.2d at 163, in which the following statement from Marracci v. City of Scappoose, 26 Or.App. 131, 552 P.2d 552, 553 (1976), was approved:

[A] comprehensive plan only establishes a long-range maximum limit on the possible intensity of land use; a plan does not simultaneously establish an immediate minimum limit on the possible intensity of land use. The present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan.

. . . .

[T]he fact that a proposed use is consistent with the plan means that the planners contemplated that that use would be acceptable at some point in the future. We do not believe the Growth Management Act was intended to preclude development but only to insure that it proceed in an orderly manner.

Upon consideration, we hold that a landowner seeking to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all procedural requirements of the zoning ordinance. At this point, the burden shifts to the governmental board to demonstrate that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose. In effect, the landowners' traditional remedies will be subsumed within this rule, and the board will now have the burden of showing that the refusal to rezone the property is not arbitrary, discriminatory, or unreasonable. If the board carries its burden, the application should be denied.

Because a Plan amendment is a legislative re formulation of existing policy, it is not dependent on the zoning regulations that implement the policy being changed. Yusem, 690 So.2d at 1293-94. The ALJ was, therefore, correct in striking Appellants' arguments asserting that this plan amendment was inconsistent with those portions of the Plan relating to land development — zoning — regulations and orders.

4. The Port of Miami River sub-element:

Fourth, the ALJ did not, as Appellants' claim, ignore this court's decision in Payne II so as to disregard this sub-element. Although the ALJ initially refused to take notice of that decision because rehearing was pending in this court, the recommended order confirms that the ALJ did take notice of the decision once that decision became final:

On March 3, 2006, Petitioners filed a Notice of Filing Additional Case Law and requested that the undersigned take official recognition of the case of Herbert Payne et al. v. City of Miami et al., 927 So.2d 904, (Fla. 3d DCA, 2005) ( Payne II), which involved an appeal from a circuit court decision which dismissed for lack of standing two of four petitioners (Payne and the Marine Group) who had filed a challenge under Section 163.3215, Florida Statutes, alleging that the City's decision to rezone the property in question and to issue a major use special permit to Intervenor was inconsistent with the Plan. The Court, by a 2-1 vote, reversed the lower court's determination. However, because the decision was not yet final at the time of hearing, as a Motion for Rehearing and Rehearing En Banc had been pending before that Court since November 28, 2005, the Request for Official Recognition was denied. On May 10, 2006, the Court denied the Motion for Rehearing and Rehearing En Banc, and the decision is now final. Accordingly, the earlier ruling is vacated, and the request for official recognition is granted.

(Emphasis added).

The ALJ also did not improperly ignore the purported mandate of Payne II to consider the Port of Miami River sub-element when deciding the validity of the instant Plan amendment, primarily because Payne II imposes no such mandate. Payne II deals exclusively with the standing of Herbert Payne and the Miami River Marine Group to bring suit in circuit court to challenge the City's decision to rezone Balbino's property; it has nothing to do with whether the Port of Miami River sub-element should or must be considered when granting the instant small scale amendment.

Even if such a mandate were imposed by Payne II, there would be no basis for reversal because the ALJ took substantial testimony regarding the meaning of the term "Port of Miami River" and application of this sub-element to this amendment. Horatio Aguirre, the president of the Durham Park Homeowners Association testified about this sub-element. So did Herbert Payne (the owner of a tug boat company doing business on the River) who testified as to the definition of the term "Port of Miami River." Fran Bonn-sack, a representative of the Miami River Group, also testified extensively about this sub-element, as did both the City's and the Appellants' experts.

The ALJ's recommended order also confirms that the ALJ actually considered this sub-element:

83. . . . Because [Balbino's] property is not included within the definition of the Port of Miami River, in reviewing the application, the City adhered to its long-standing interpretation that the Sub-Element was not applicable or relevant to the analysis of the amendment's consistency with the Plan.

84. Under the majority opinion in Payne II, however, the Sub-Element appears to be relevant and is "intended to apply to the `uses along the banks of the Miami River[`]", and not just to specific companies named in the definition. Even so, only Objective PA-3.3 would require consideration.

(Citation omitted) (footnotes omitted).

Addressing that objective, the ALJ observed:

85. Petitioners failed to present any evidence concerning a lack of coordination activities relative to the FLUM amendment. Coordination does not mean that adjacent local governments or other interested persons have veto power over the City's ability to enact plan amendments. . . . Rather the City needs only take into consideration input from interested persons.

(Citations omitted).

A review of this sub-element demonstrates why the ALJ's treatment of it was correct.

This sub-element, in pertinent part, provides:

PORTS, AVIATION AND RELATED FACILITIES

. . . .

Port of Miami River ¹

^{1 [The "Port of Miami River" is simply a legal name used to identify some 14 independent, privately-owned small shipping companies located along the Miami River, and is not a "Port Facility" within the usual meaning of the term. The identification of these shipping concerns as the "Port of Miami River" was made in 1986 for the sole purpose of satisfying a U.S. Coast Guard regulation governing bilge pump outs.]}

Goal PA-3: The Port of Miami River, a group of privately owned and operated commercial shipping companies located at specific sites along the Miami River, shall be encouraged to continue operation as a valued and economically viable component of the city's maritime industrial base.

Objective PA-3.1: The City of Miami, through its Land development regulations, [zoning ordinances] shall help protect the Port of Miami River from encroachment by non water-dependent or water-related land uses, and shall regulate its expansion and redevelopment in coordination with the City's applicable coastal management and conservation plans and policies. Objective PA-3.2: The City of Miami shall coordinate the surface transportation access to the Port of Miami River with the traffic and mass transit system shown on the traffic circulation map series.

Objective PA-3.3: The City of Miami shall coordinate its Port of Miami River planning activities with those of ports facilities providers and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County's Port of Miami.

Miami Comprehensive Neighborhood Plan, Volume I, Goal PA-3, Objective PA-3.1, Objective PA-3.2, Objective PA-3.3. (Some emphasis added).

The stated purpose of this entire sub-element is to "encourage[] . . . continued operation" of the commercial marine entities which operate on the Miami River. This purpose is to be achieved in three ways: first, by adoption and application of the City's "Land development regulations" — that is, by its zoning ordinances; second, by coordinating surface transportation; and third, by coordinating Port of Miami River planning activities with those of other ports and regulators. Of these three, only the first, relating to enactment of zoning regulations to help protect the Port of Miami River from encroachment by non water-dependent or water-related land uses, arguably has any application. However, as both Machado and Yusem make clear, consideration of the City's zoning ordinances in this Plan amendment request is wholly inappropriate.

The ALJ did not, therefore, err in either failing to consider this element or in the consideration given to it. The only matter before the ALJ was Balbino's application to change this property's current Industrial and General Commercial designations to something else and the City's legislative decision to reformulate its policy — as expressly provided by section 163.3187 — regarding this change. Because no land development, that is, zoning , issues were involved, the ALJ properly refused to consider those parts of this sub-element dealing with zoning ordinances, and based on the record and evidence before him, the ALJ properly concluded that the City's legislative determination to reformulate its policy regarding this property was supported by the record and fairly debatable. That determination, approved as it was by the Department of Community Affairs, should have been affirmed.

This Court's Opinion and Reconsideration on Rehearing en Banc

Although the claims actually raised by Appellants have no merit, this court concluded that the ALJ erred: (1) in either failing to permit Appellants to introduce evidence concerning, or in failing to consider, inconsistencies between the requested amendment and (a) the Port of Miami River sub-element and (b) the Future Land Use and Coastal Management elements of the City's Plan; and (2) in making findings unsupported by the evidence. The opinion also "note[s]" that "these `small scale' amendments, when viewed together as a whole, are changing the character of the Miami River waterfront without proper long range planning or input from appropriate agencies, departments, and citizen groups." These determinations ignore both controlling law and the record.

1. No consideration of the cumulative effect of other small scale amendments is appropriate in this case.

There can be no doubt that the driving force behind the instant opinion is the conclusion, stated in the last paragraph, that the instant small scale amendment, when viewed with other pending amendments, improperly changes the character of the Miami River waterfront:

We further note that these `small scale' amendments, when viewed together as a whole, are changing the character of the Miami River waterfront without proper long range planning or input from appropriate agencies, departments, and citizen groups. Because the Miami River is such an important asset to the City, County, and State, such piecemeal, haphazard changes are not only ill-advised, they are contrary to the goals and objectives of those who worked together, debated, and determined how the Miami River waterfront should be developed. If the City's vision for the Miami River has changed, then that change should be clearly reflected in its Comprehensive Plan to provide industries and land owners along the Miami River with fair notice.

Payne, 06-1799, substituted opinion.

This conclusion stems from the faulty determination, made many paragraphs earlier, that section 163.3187(1)(c), which governs this action, does no more that provide "an exception to the time limitation for small scale amendments to the comprehensive plan if . . . [t]he proposed amendment involves the use of 10 acres or fewer and . . . the proposed amendment involves a residential land use . . . [that] has a density of 10 units or less per acre." Id.

Section 163.3187(1)(c), is not, however, so limited. This provision also expressly authorizes an unlimited number of such amendments so long as they do not exceed a stated cumulative annual' acreage limit:

a. The cumulative annual effect of the acreage for all small scale development amendments adopted by the local government shall not exceed:

(I) A maximum of 120 acres in a local government that contains areas specifically designated in the local comprehensive plan for urban infill, urban redevelopment, or downtown revitalization as defined in s. 163.3164, urban infill and redevelopment areas designated under s. 163.2517, transportation concurrency exception areas approved pursuant to s. 163.3180(5), or regional activity centers and urban central business districts approved pursuant to s. 380.06(2)(e); however, amendments under this paragraph may be applied to no more than 60 acres annually of property outside the designated areas listed in this sub-sub-sub-paragraph. Amendments adopted pursuant to paragraph (k) shall not be counted toward the acreage limitations for small scale amendments under this paragraph.

(II) A maximum of 80 acres in a local government that does not contain any of the designated areas set forth in sub-sub-sub-paragraph (I).

(III) A maximum of 120 acres in a county established pursuant to s. 9, Art. VIII of the State Constitution.

§ 163.3187(1)(c)1.a.(I)-(III), Fla. Stat. (2006) (emphasis added); Coastal Dev., 788 So.2d at 207 (confirming that under section 163.3187(1)(c)1.a. "[a] local government is limited to a cumulative acre limit per year of total area within that government's boundaries that may be subject to small-scale amendments") (footnote omitted).

By virtue of these provisions, the Florida Legislature has determined (and the Florida Supreme Court in Coastal Development has confirmed) that "piecemeal" changes to a Plan such as the change at issue here, which do not individually or collectively exceed the cumulative annual acreage identified in the statute, do not change the character of an area or neighborhood so as to require any "long range planning," or input from any agencies, departments, or groups as the opinion suggests. Thus, notwithstanding this court's broad statement that such changes are "ill-advised" or "haphazard," they are nonetheless expressly authorized by law.

The record in this case reflects that whether considered alone or in combination with any others this amendment does not exceed the cumulative acreage limitations set by section 163.3187. This perhaps explains why Appellants did not challenge below the City's express determination that the cumulative effect of this amendment did not exceed that authorized by section 163.3187(1)(c)1.a.(I)-(III).

Because the instant small scale amendment met all of the requirements imposed by section 163.3187, the City's legislative decision to change the designation for this parcel should have been reviewed solely to determine whether that decision was supported by competent, substantial evidence and was internally consistent with the remainder of the Plan — not whether it met criteria outside the requirements of section 163.3187(1)(c).

2. There is no inconsistency between the Port of Miami River sub-element and this small scale amendment.

The ALJ did not err in either failing to consider, or in considering, the Port of Miami River sub-element because no inconsistency between that sub-element and the instant small scale amendment exists.

Section 163.3187 provides that comprehensive plans may only be amended in such a way as to preserve the "internal consistency" of a Plan. § 163.3187(2), Fla. Stat. (2004); Coastal Dev., 788 So.2d at 208 (stating that the "FLUM must be internally consistent with the other elements of the comprehensive plan") (footnote omitted). Balbino sought to amend the future land use map element of the City's plan to change only the Industrial and General Commercial designations of this particular property to Restricted Commercial. This change created no inconsistency with the Port of Miami River sub-element of the Plan.

First, and no matter how the term "Port of Miami River" is defined (that is, as either "a legal name used to identify some 14 independent privately owned small shipping companies located along the Miami River," as expressly stated in the footnote to this element, or as any other "use" on the banks of the river as stated in Payne II), this sub-element mandates no particular land use designation for this "port." See Payne II, 927 So.2d at 908. Thus, this change to the land use map , on its face, creates no internal inconsistency with this sub-element.

Second, the limited change requested by Balbino is not in any manner inconsistent with either the stated goals, objectives or policies of this sub-element. The single stated goal of this sub-element is to "encourage" continued operation of the Port of Miami River, not to ensure its existence at the expense of other property owners on the Miami River:

Goal PA-3: The Port of Miami River, a group of privately owned and operated commercial shipping companies located at specific sites along the Miami River, shall be encouraged to continue operation as a valued and economically viable component of the city's maritime industrial base.

Miami Comprehensive Neighborhood Plan, Volume I, Goal PA-3. (emphasis added).

The manner in which this goal is to be achieved is not through designations on the future land use map, but by enactment of land development regulations, that is, by enactment of zoning ordinances:

Objective PA-3.1: The City of Miami, through its Land development regulations [zoning regulations ], shall help protect the Port of Miami River from encroachment by non water-dependent or water-related land uses, and shall regulate its expansion and redevelopment in coordination with the City's applicable coastal management and conservation plans and policies.

Policy PA-3.1.1: The City shall use its land development regulations [zoning regulations] to encourage the establishment and maintenance of water-dependent and water-related uses along the banks of the Miami River, and to discourage encroachment by incompatible uses.

Policy PA-3.1.2: The City shall, through its land development regulations [zoning regulations ], encourage the development and expansion of the Port of Miami River consistent with the coastal management and conservation elements of the City's Comprehensive Plan.

Policy PA-3.1.3: The City shall, through its land development regulations [zoning regulations ], encourage development of compatible land uses in the vicinity of the Port of Miami River so as to mitigate potential adverse impacts arising from the Port of Miami River upon adjacent natural resources and land uses.

Miami Comprehensive Neighborhood Plan, Volume I, Objective PA-3.1, Policy PA-3.1.1, Policy PA-3.1.2, Policy PA-3.1.3 (emphasis added).

The instant land use designation change on the FLUM from Industrial to Restricted Commercial cannot, therefore, be incompatible with this objective and its policies for the simple reason that planning is not zoning and changing the Plan does not automatically result in changing the zoning. Snyder, 627 So.2d at 475 (observing "[t]he present use of land may, by zoning ordinance, continue to be more limited than the future use contemplated by the comprehensive plan").

Third, this change in designation gives rise to no inconsistency with the remainder of the sub-element. The second Objective to this sub-element, Objective PA-3.2 and its single Policy deal with coordinating surface transportation access to the Port of Miami River with the mass transit system shown on the traffic circulation map:

Objective PA-3.2: The City of Miami shall coordinate the surface transportation access to the Port of Miami River with the traffic and mass transit system shown on the traffic circulation map series.

Policy PA-3.2.1: The City of Miami shall, through the Transportation Element of the Comprehensive Plan, coordinate intermodal surface and water transportation access serving the Port of Miami River.

Miami Comprehensive Neighborhood Plan, Volume I, Objective PA-3.2, Policy PA-3.2.1.

There is no evidence whatsoever that this Objective and its Policy apply to the instant amendment much less that the amendment is inconsistent with them.

The third Objective, PA-3.3, states only that the City of Miami will " coordinate its Port of Miami River planning activities with those of ports facilities providers and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County's Port of Miami." Its single Policy, PA-3.3.1, states that the City, "through its Intergovernmental Coordination Policies," will support the functions of the Port of Miami River. See Miami Comprehensive Neighborhood Plan, Volume I, Objective PA-3.3, Policy PA-3.3.1. As to this Objective and Policy, the testimony was that this application was submitted to the Miami River Commission, the clearinghouse for all interests on the Miami River and that the Commission made a recommendation against it. This element requires only coordination with such an entity; it does not bind the City to its recommendations. The requirements of this Objective and Policy were met.

In sum, this small scale amendment to the FLUM to redesignate Balbino's property as Restricted Commercial is not, as a matter of law, inconsistent with this sub-element.

Despite the fact that no inconsistency could be nor was demonstrated to exist between the Port of Miami River sub-element and the FLUM as a consequence of this small scale amendment, the opinion focuses on Objective PA-3.1 of this sub-element and its policy regarding land development regulations — that is zoning ordinances — to conclude that the FLUM amendment is inconsistent with the Comprehensive Plan.

The majority opinion buttresses its conclusion with Ms. Slazyk's testimony that land use and zoning "need to be compatible." However it is the land use designation that is determinative. The opinion itself quotes Ms. Slazyk's acknowledgement that "The major use is seen as the umbrella that covers all of the subordinate reviews and approvals. . . ." Supporting its decision, the majority puts the cart before the horse.

Thus, the majority's conclusion and the analysis by which it is reached directly conflict with the determination made by both the Florida Supreme Court and this court that zoning ordinances must be consistent with a comprehensive plan, not the other way around. Specifically, the conclusion that because "[t]he Balbino property was, for the most part, zoned SD-4.2 Waterfront Industrial . . . its land use designation was by necessity, identified as Industrial," is directly contrary to the determination in Snyder that "[t]he local plan must be implemented through the adoption of land development regulations [zoning ordinances] that are consistent with the plan." Snyder, 627 So.2d at 473, 474 (citation omitted) ("Because an order granting or denying rezoning constitutes a development order and development orders must be consistent with the comprehensive plan, it is clear that orders on rezoning applications must be consistent with the comprehensive plan."); see also Coastal Den, 788 So.2d at 209 (stating that "a proposed zoning change . . . must be consistent with the FLUM"); Machado, 519 So.2d at 632 ("local comprehensive plans . . . are not zoning laws. [Chapter 163] require[s] that all zoning action conform to [the] approved land use plan"). As these decisions confirm, zoning follows planning; planning is not affected by zoning. Thus, the statement that because this property was zoned SD-4.2 it necessarily had to be designated as Industrial is wholly inimical to controlling law.

So too is the suggestion that because "the FLUM Amendment will permit residential use, a land use specifically precluded by the SD-4.2 land development classification . . . by changing the land use, the FLUM Amendment [will] dramatically change[] the permitted land development [zoning] uses." Payne, 06-1799, substituted opinion. As the Supreme Court in Snyder confirmed, the fact that a rezoning request is consistent with a new use designation does not mean that the rezoning request will or must be granted:

Further, we cannot accept the proposition that once the landowner demonstrates that the proposed use is consistent with the comprehensive plan, he is presumptively entitled to the use. . . . We do not believe that a property owner is necessarily entitled to relief by proving consistency when the board action is also consistent with the plan.

Snyder, 627 So.2d at 475.

A change in a land use designation does not, therefore, equate with a change in zoning.

In short, the fact that this parcel of property is zoned SD-4.2, is wholly irrelevant as to whether changing the land use designation of this property from Industrial to Restricted Commercial is consistent with the Port of Miami River sub-element. Moreover, because the Port of Miami River sub-element, as pertinent here, relates to land development orders — that is zoning — it too is wholly irrelevant and can give rise to no conflict with the instant amendment. Thus, I find that this court's conclusion that the Department's final order approving the ALJ's determination had to be reversed because the ALJ failed to take into consideration "the goal, objectives, and policies of the Port of Miami River sub-element [which relates to zoning]," is contrary to both the record and controlling law.

3. There is no inconsistency between this amendment and the Future Land Use element of the Plan.

The Future Land Use element sets forth broad goals for the City's Plan as a whole:

FUTURE LAND USE

Goal LU-1: Maintain a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods; (2) fosters redevelopment and revitalization of blighted or declining areas; (3) promotes and facilitates economic development and the growth of job opportunities in the city; (4) fosters the growth and development of downtown as a regional center of domestic and international commerce, culture and entertainment; (5) promotes the efficient use of land and minimizes land use conflicts; and (6) protects and conserves the city's significant natural and coastal resources.

Objective LU-1.2: Promote the redevelopment and revitalization of blighted, declining or threatened residential, commercial and industrial areas.

Objective LU-1.5: Land development regulations [zoning ordinances] will protect the city's unique natural and coastal resources, and its historic and cultural heritage.

Objective LU-1.6: Regulate the development or redevelopment of real property within the city to insure consistency with the goals, objectives and policies of the Comprehensive Plan.

Miami Comprehensive Neighborhood Plan, Volume I, Goal LU-1, Objective LU-1.2, Objective LU-1.5, Objective LU-1.6.

Changing the designation for this particular property on the FLUM creates no inconsistency with this element internally or otherwise.

The testimony from Lourdes Slazyk, the assistant director of Planning for the City, ¹³ was that this amendment will permit construction of affordable housing, a riverwalk to a nearby park, and a 100 slip marina where a derelict boat repair facility now sits. According to this expert witness, this change in designation will foster redevelopment and revitalization in, and enhance the quality of life of, neighboring Allapattah, a poor residential neighborhood already designated as a community redevelopment zone. This witness also confirmed that this amendment will facilitate economic development and the growth of job opportunities in the City by providing much needed affordable housing to thousands of individuals employed in the immediate vicinity, and will bring them and their families back to the City from outlying areas. This witness further confirmed that bringing employees and their families from outlying areas back to the City where they work will (1) result in more efficient land use by reducing urban sprawl; (2) reduce traffic and stress on infrastructure; (3) reduce stress on the Everglades thereby conserving natural resources; and (4) foster economic growth and development in the City itself (as opposed to outlying suburbs somewhere else). This testimony confirms that this amendment is consistent with this element and its objectives.

13 This testimony from this individual who is charged in the Plan with determining concurrency and consistency with the Plan, is competent substantial evidence. See City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857 So.2d 202, 205 (Fla. 3d DCA 2003) (confirming that the testimony of professional staff, when based on "professional experiences and personal observations, as well as [information contained in an] application, site plan, and traffic study" constitutes competent substantial evidence); Palm Beach County v. Allen Morris Co. 547 So.2d 690, 694 (Fla. 4th DCA 1989) (confirming that professional staff reports analyzing a proposed use constituted competent substantial evidence); Metro. Dade County v. Fuller, 515 So.2d 1312, 1314 (Fla. 3d DCA 1987) (stating that staff recommendations constituted evidence); Dade County v. United Res., Inc., 374 So.2d 1046, 1050 (Fla. 3d DCA 1979) (confirming that the recommendation of professional staff "is probative").

Rather than focusing on this testimony, the opinion reweighs the evidence to focus on the rejected testimony of two of Appellants' witnesses. The first, Ann Stetser, a neighborhood resident, testified that traffic will increase as a consequence of the instant development. This is not competent, substantial evidence on this issue. See DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957) (stating that competent substantial evidence is that which a reasonable mind would accept as adequate to support a conclusion); City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857 So.2d 202, 204 (Fla. 3d DCA 2003) (observing that "generalized statements in opposition to a land use proposal, even those from an expert, should be disregarded"). It also was contradicted by the second witness, Jack Luft, Appellants' expert, who after admitting that he lacked the requisite expertise to opine on this subject, confirmed that this subject is not relevant to a small scale amendment. And, although Mr. Luft did, as the opinion notes, testify that the Miami River and its marine industrial base provide significant jobs and economic enhancement to the City, this court is not free to accept this testimony over that accepted by the ALJ and which fully supports this amendment. See § 120.68(7)(b), Fla. Stat. (2004) (stating that "the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact"); Roche Sur. Cas. Co. v. Dep't of Fin. Servs., Office of Ins. Regulation, 895 So.2d 1139, 1141 (Fla. 2d DCA 2005) ("On appellate review of the agency order, the issue for the appellate court is whether the record contains evidence sufficient to support the original finding of fact by the ALJ."); Yaeger v. Fla. Unemployment Appeals Comm'n, 786 So.2d 48, 51 (Fla. 3d DCA 2001) ("Generally speaking, neither the UAC or this court may reweigh the evidence and substitute its findings for those of the referee. See Grossman v. Jewish Community Center of Greater Fort Lauderdale, Inc., 704 So.2d 714, 716 (Fla. 4th DCA 1998); Studor, Inc. v. Duren, 635 So.2d 141, 142 (Fla. 2d DCA 1994); Verner v. Unemployment Appeals Comm'n, 474 So.2d 909 (Fla. 2d DCA 1985) . . . section 120.57, Fla. Stat. (1999).").¹⁴

14 See also Graham v. Estuary Props., Inc., 399 So.2d 1374, 1380 n. 10 (Fla. 1981) ("The reviewing court cannot substitute its judgment for that of the agency on a finding of fact or the weight thereof."); Lenard v. A.L.P.H.A. "A Beginning" Inc., 945 So.2d 618, 623 (Fla. 2d DCA 2006) (observing that "[w]hen reviewing the findings and conclusions of a government agency, this court is not permitted to substitute its judgment for that of the agency if competent, substantial evidence supports the agency's factual findings and the agency correctly applied the applicable statutory criteria. § 120.68(7), (8), Fla. Stat. (2005)"); Young v. Dep't of Educ., Div. of Vocational Rehab., 943 So.2d 901, 902 (Fla. 1st DCA 2006) ("[I]t is the responsibility of the administrative law judge to evaluate and weigh the testimony and other evidence submitted at the hearing to resolve factual conflicts, and to arrive at findings of fact. It is not the role of the appellate court to reweigh the evidence anew."); Mullins v. Dep't of Law Enforcement, 942 So.2d 998, 1000 (Fla. 5th DCA 2006) ("This Courts review of the Commission's final order accepting and adopting the ALJ's findings of fact and conclusions of law is governed by section 120.68, Florida Statutes (2005). See Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982, 986 (Fla. 1996). A reviewing court may set aside agency action only when it finds that the action is dependent on findings of fact that are not supported by substantial competent evidence in the record, material errors in procedure, incorrect interpretations of law, or an abuse of discretion. § 120.68(7), Fla. Stat. (2005). When factual findings are reviewed, the court must not substitute its judgment for that of the agency in assessing the weight of the evidence or resolving disputed issues of fact. See § 120.68(10), Fla. Stat. (2005); Malave v. Dep't of Health, Bd. of Med., 881 So.2d 682, 684 (Fla. 5th DCA 2004); Gross v. Dep't of Health, 819 So.2d 997, 1002 (Fla. 5th DCA 2002)."); Knight v. Winn, 910 So.2d 310, 312 (Fla. 4th DCA 2005) ("[T]his court may not `substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. `"(quoting § 120.68(7)(b), Fla. Stat.)); Quevedo v. S. Fla. Water Mgmt. Dist., 762 So.2d 982, 988 (Fla. 4th DCA 2000) ("This court is `prohibited from substituting [its] judgment for that of the agency in assessing the weight of the evidence resolving disputed factual issues. `"(quoting Perdue v. TJ Palm Assocs., Ltd., 755 So.2d 660, 666 (Fla. 4th DCA 1999))); Schrimsher v. Sch. Bd. of Palm Beach County, 694 So.2d 856, 861 (Fla. 4th DCA 1997) ("[W]e are prohibited from substituting our judgment for that of the agency in assessing the weight of the evidence or resolving disputed factual issues. § 120.68(10), Fla. Stat. (Supp. 1996). The School Board's action may be set aside only after a determination that the agency's findings are not supported by competent substantial evidence in the record. § 120.68(10), Fla. Stat. (Supp. 1996)."); Gershanik v. Dep't of Prof I Regulation, Bd. of Med. Exam'rs, 458 So.2d 302, 304 (Fla. 3d DCA 1984) ("[T]his court may not substitute its judgment for that of the agency as to disputed findings of fact or as to weight of the evidence."); Pasco County Sch. Bd. v. Fla. Pub. Employees Relations Comm'n, 353 So.2d 108, 116 (Fla. 1st DCA 1977) ("We may only set aside such action or remand the case to the agency if we find the agency's order depends upon any finding of fact which is not supported by competent substantial evidence in the record. It is not appropriate for us to resolve conflicts in the testimony adduced before an administrative tribunal. . . . [N]or is it our province to displace an agency's choice between two conflicting views even if we would be justified in deciding the issue differently were it before us in the first instance."); Bd. of Regents v. Budjan, 242 So.2d 163, 165 (Fla. 1st DCA 1970) ("It is well settled that the Commission is a fact-finding body and that this Court will not substitute its judgment for that of the trier of fact."); Pauline v. Lee, 147 So.2d 359, 363 (Fla. 2d DCA 1962) (A reviewing court should not "substitute its judgment for that of the administrative fact finder who heard the testimony and was in a position to evaluate the credibility of witnesses.").

Changing the designation of this parcel of property on the FLUM from Industrial and General Commercial to Restricted Commercial created no internal or other inconsistency with the Future Land Use element of the Plan. To the contrary, the evidence that was accepted by the ALJ was that it advanced the goals of the land use element. This determination should have been affirmed.

4. There is no inconsistency between this amendment and the Coastal Management element of the Plan.

The instant change to the FLUM also created no inconsistency with the Coastal Management element of the Plan. This element states that the City will provide an "adequate" supply of land for water dependent uses with the objective of allowing no "net loss" of acreage devoted to water dependent uses in the coastal area of the entire City , not just along the Miami River:

Goal CM-3: Provide an adequate supply of land for water dependent uses. Objective CM-3.1: Allow no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami.

Miami Comprehensive Neighborhood Plan, Volume I, Goal CM-3, Objective CM-3.1.

Appellants presented no testimony whatsoever as to the "net" number of acres devoted to "water dependent" uses in the coastal area of the City. Nor did they present evidence as to whether this amendment will result in a "net" loss of acreage devoted to such uses. More to the point, changing the FLUM designation of this property from Industrial and General Commercial to Restricted Commercial — the change of which is all that is involved in this amendment — implicates no water use, dependent or otherwise, at all:

Industrial: The areas designated as "industrial" allow manufacturing, assembly and storage activities. The "Industrial" designation generally includes activities that would otherwise generate excessive amounts of noise, smoke, fumes, illumination, traffic, hazardous wastes, or negative visual impact unless properly controlled. Stockyards, rendering works, smelting and refining plants and similar activities are excluded. Residential uses are not permitted in the "industrial" designation, except for rescue missions, and live-aboards in commercial marinas.

. . . .

General Commercial: Areas designated as "General Commercial" allow all activities included in the "Office" and the "Restricted Commercial" designations, as well as wholesaling and distribution activities that generally serve the needs of other businesses; generally require on and off loading facilities; and benefit from close proximity to industrial areas. These commercial activities include retailing of second hand items, automotive repair services, new and used vehicle sales, parking lots and garages, heavy equipment sales and service, building material sales and storage, wholesaling, warehousing, distribution and transport related services, light manufacturing and assembly and other activities whose scale of operation and land use impacts arc similar to those uses described above. Multifamily residential structures of a density equal to R-3 or higher, but not to exceed a maximum of 150 units per acre, are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents. This category also allows commercial marinas and living quarters on vessels for transients.

Miami Comprehensive Neighborhood Plan, Vol. I, Interpretation of the Future Land Use Map, p. 18, paragraph 3-p. 19, paragraph 2.

Changing these designations to a Restricted Commercial designation, which like the Industrial and General Commercial designations neither mandates water dependent uses nor precludes them, cannot, therefore, create an internal inconsistency with this element of the Plan.

To get around this, the opinion relies on zoning regulations and a 1986 economic study cited in Volume II of the Plan:

The Balbino FLUM Amendment to the Comprehensive Plan, changing the land use designation, which is primarily Industrial to Restricted Commercial, and the zoning from SD-4.2 Waterfront Industrial to Restricted Commercial, will result in a net loss of acreage devoted to water-dependent use. The loss of acreage specifically reserved for water-dependent or water-related use conflicts with Coastal Management Goal CM-3. Instead of "[p]rovid[ing] an adequate supply of land for water dependent uses," . . . "[a]llow[ing] no net loss of acreage devoted to water dependent uses in the coastal area of the City of Miami," and using its land use regulations to "encourage water dependent uses along the shoreline," these changes to this property's land use [and zoning] will deplete land specifically reserved by the City for Industrial water-dependent uses in its Comprehensive Plan.

The Comprehensive Plan's goals, objectives, and policy considerations regarding coastal areas, and specifically those coastal areas along the Miami River, are in recognition of how important the shipping industry and other water-dependent uses are to the City's economy.

In view of the importance to the local economy, the limited available areas suitable for high intensity water dependent uses, and strong population pressures of the 1960's, the City created in the mid 1960's a zoning classification entitled Waterfront Industrial. This zoning classification strictly prohibits uses that are not directly related to waterfront activities.

. . . .

Since any new water dependent or related facilities would involve redevelopment of existing waterfront properties, these zoning ordinances are considered sufficient to insure that adequate land area for water-dependent or related uses is protected.

. . . .

Along the Miami River, an economic study in 1986 reported that the firms located in the study area . . . have a significant impact on the Miami economy. They employ an estimated 7,000 workers on a full time basis and over 600 part time. Total sales are estimated at $613 million, or about $87,000 for a full time worker. An additional indirect impact of $1.2 billion of business activity in the Miami area is created by firms in the study area. Many of the firms located in the study area are marine related businesses in part composed of water dependent and water related activities.

Miami Comprehensive Neighborhood Plan 1989-2000, Volume II, Data and Analysis, Coastal Management Element (emphasis added).

Payne, 06-1799, substituted opinion (some emphasis added).

Zoning is not, as already stated, planning and consideration of zoning ordinances in a planning consistency determination simply is not appropriate. Robbing v. Dept. of Cmty. Affairs, 1997 WL 1432207, at *7 ("[L]and development regulations are not relevant to a plan or plan amendment compliance determination. Land development regulations must be consistent with the adopted comprehensive plan, not the other way around. The comprehensive plan is implemented by appropriate land development regulations.") (citations omitted); see Smith v. Panama City, 2005 WL 2484796 at *20 ("`[C]onsistency with land development regulations is not a compliance criterion,' because it is not required by the definition of `in compliance' under Subsection 163.3184(1)(b)." (quoting Brevard County v. Dep't of Cmty. Affairs City of Palm Bay, Case Nos. 00-1956GM and 02-0391GM, 2002 WL 31846455 at *11)); see also Machado, 519 So.2d at 632. The fact that the two matters went before the Commission at the same time does not change that result.

And, in 1992, six years after the economic study cited above, the City adopted in principle the Miami River Master Plan. This report or plan has never become, by amendment or otherwise, part of the City's Comprehensive Plan and cannot, therefore, give rise to any inconsistency with the instant amendment. This plan confirms that contrary to the rosy picture painted in 1986, a majority of the water dependent uses on the Miami River (such as commercial shipping, marinas, fisheries, boat yards and some boat sales) were in decline:

Problems Facing Small Boatyards and Marinas

While there are a number of boat repair facilities that have a growing business, many of the marinas and small boatyards (under 10 employees) on the Miami River have experienced a contraction in business activity since 1985. In fact, four of the 26 small boatyards and marinas identified in 1985 by the draft Biscayne Bay Aquatic Preserve Management Plan, are no longer in business nor have they been replaced by a marine business.

One factor affecting this decline has been the rapid expansion of competing facilities in Broward County. . . . The problems for marinas and small boatyards have been deepened by the recessionary climate. . . . Further, the reputation of the river as a hurricane sanctuary was undermined as a result of statements by the South Florida Water Management District (later retracted) regarding the potential of a wall of flood water being released into the Miami River from the Everglades. . . .

. . . .

[The Seafood Industry]

There have been significant changes in the character of the fishing industry during the last several decades resulting from the level of catch available domestically, competitiveness of U.S. fishing vessels, and the economics of the processing and distribution end of the business.

. . . .

The current level of direct employment in both processing and wholesale activity by Miami River fisheries is 150. In the survey of businesses on the river, comments from the owners of these fish establishments indicated that much of the seafood arrived by truck, and that the Keys and the airport were important sources. Although for many, location on the waterfront is no longer critical to their operation, the Miami River area does provide good access to major arterials and the proximity to the air and sea ports.

Miami River Master Plan at 1.8, 1.10.

In short, there is no evidence that changing the land use designation of for this small parcel of property from Industrial and General Commercial to Restricted Commercial will have any effect whatsoever on the supply of land for water dependent uses or that it will result in a net loss of acreage devoted to water dependent uses in the coastal area of the entire City. Because neither the evidence nor applicable law supports the majority's conclusion that this small scale amendment is inconsistent with the Coastal Management Element of the City's Plan, the Department's order should have been affirmed.

CONCLUSION

The City of Miami made a legislative decision to grant a property owner's application for a small scale amendment to the future land use element of the City's Comprehensive Plan. When challenged, on administrative review, the ALJ hearing the matter found the City's decision to be supported by the evidence and professionally acceptable data and concluded that the decision was "in compliance." The Department of Community Affairs agreed with that determination and also found the amendment to be "in compliance." Because this decision is fully supported by both the evidence and applicable controlling law, it should have been affirmed. Accordingly, and for the reasons stated herein, I would grant rehearing en banc, withdraw the current opinion and affirm.

GERSTEN, SHEPHERD, and SUAREZ, JJ., concur.

Endnotes

ⁱ By law a local comprehensive land use plan must include a number of elements, one of which is a future land use element. The future land use map (FLUM) is a component of the future land use element of the comprehensive plan. See § 163.3177(6)(a), Fla. Stat. (2006).

A comprehensive plan is composed of several elements. One element of the comprehensive plan is the future land use element. The future land use element designates "proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and privates uses of land." The future land use map (FLUM) is a component of the future land use element of the comprehensive plan. See Yusem, 690 So.2d at 1292. The FLUM is a pictorial depiction of the future land use element and is supplemented by written "goals, policies, and measurable objectives."

Coastal Dev. of N. Fla., Inc. v. City of Jacskonville Beach, 788 So.2d at 207-08 (footnotes omitted); see also § 163.3177, Fla. Stat. (2006) (delineating the mandatory and optional elements of comprehensive plans).

ⁱⁱ The Planning and Zoning Department's analysis noted that the sanitary sewer concurrency requirement had to be met by obtaining a permit from the Metro-Dade Water and Sewer Authority Department (WASA).

ⁱⁱⁱ Section 163.3187(3)(a), Florida Statutes (2006), sets out the initial step in the procedure to challenge the compliance of a small scale development amendment:

The state land planning agency shall not review or issue a notice of intent for small scale development amendments which satisfy the requirements of paragraph (1)(c). Any affected person may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57 to request a hearing to challenge the compliance of a small scale development amendment with this act within 30 days following the local government's adoption of the amendment, shall serve a copy of the petition on the local government, and shall furnish a copy to the state land planning agency. An administrative law judge shall hold a hearing in the affected jurisdiction not less than 30 days nor more than 60 days following the filing of a petition and the assignment of an administrative law judge. The parties to a hearing held pursuant to this subsection shall be the petitioner, the local government, and any intervenor. In the proceeding, the local government's determination that the small scale development amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the amendment is not in compliance with the requirements of this act. In any proceeding initiated pursuant to this subsection, the state land planning agency may intervene.

^iv Ms. Slazyk, who holds a Bachelor of Arts degree in Architecture from the University of Miami, has been employed in the City's Planning Department for over 22 years.

^v The testimony was that the data and information regarding compliance with these requirements, while not spread on the record as part of the Planning Department's formal recommendation, exists and is available to the public on request. As the Planning Department's report to the City Commission notes, because water is supplied to City occupants by Miami-Dade County, compliance with this criterion is determined by the County, not the City, and thus addressed by the City at the permitting stage. With regard to traffic, the ALJ correctly noted what petitioners' expert stated, that traffic concurrency requirements do not apply to small scale amendments.

^vi The parties rely upon the August 2004 version of the Comprehensive Plan, which has been quoted extensively herein.

^vii Policy LU-1.2.3: The City's residential, commercial and industrial revitalization programs will continue to place highest priority on protecting neighborhoods threatened with declining conditions, second priority to reversing trends in declining areas, and third priority to removing blighted conditions, and the City will continue its efforts to secure federal and state aid in developing comprehensive redevelopment programs.

^viii Policy LU-1.3.1: The City will continue to provide incentives for commercial redevelopment and new construction in the Edison Center, Latin Quarter, Little Haiti, Little River Industrial District, River Corridor, Design District, Grand Avenue, Flagler Street, the River Quadrant, the Omni Area Redevelopment District, and Southeast Overtown/Park West (N.W. 3 Avenue) and other areas where such redevelopment will contribute to the improvement in the built environment. Such incentives may be offered through the building fagade treatment program, Community Development Block Grant (CDBG) funds, and other redevelopment assistance programs.

^ix Objective HO-1.1: Provide a local regulatory, investment, and neighborhood environment that will assist the private sector in increasing the stock of affordable housing within the city at least 10 percent by 2005. ^x Objective HO-1.2: Conserve the present stock of low and moderate-income housing within the city and reduce the number of substandard units through rehabilitation, reduce the number of unsafe structures through demolition, and insure the preservation of historically significant housing through identification and designation. ^xi Objective SS-1.4: The City of Miami's sanitary sewer collection system is a valuable and costly element of the urban infrastructure, and its use is to be maximized in the most efficient manner. ^xii Objective SS-2.1: In accordance with the 1986 Storm Drainage Master Plan and subsequent updates, the City will address the most critical drainage problems. The City's goals for retrofitting subcatchment areas within the city will meet or exceed the 5-year frequency, 24-hour duration standard while utilizing water quality design criteria. The City will confer with local agencies, namely the Miami-Dade County Department of Environmental Resources Management (DERM) when retrofitting City projects to incorporate design criteria and best management practices (BMPs). ^xiii Objective SS-2.2: The practice of stormwater management within the city will be designed to reduce pollutant-loading rates to surface waters. ^xiv Objective SS-2.5: The City of Miami's storm drainage system is a valuable and costly element of the urban infrastructure, and its use is to be maximized in the most efficient manner to serve this fully developed community. ^xv Objective SW-1.1: The City will continue to provide solid waste collection services to city residents and businesses in a manner that ensures public health and safety, and a clean urban environment. ^xvi Objective PR-1.1: Increase public access to all identified recreation sites, facilities and open spaces including the Miami River and beaches and enhance the quality of recreational and educational opportunities for all age groups and handicapped persons within the city's neighborhoods. ^xvii Objective PR-1.4: Ensure that future development and redevelopment pay an equitable, proportional share of the cost of public open space and recreational facilities required to maintain adopted LOS standards. ^xviii Objective CM-1.1: Preserve and protect the existing natural systems including wetlands and beach/dune systems within Virginia Key and those portions of Biscayne Bay that lie within the City's boundaries; and improve water quality within the Miami River, its tributaries and the Little River. ^xix Objective CM-2.1: Prevent the net loss of, and, where feasible, increase, physical and visual public access to Biscayne Bay and the city's shoreline. ^xx Objective CM-4.2: The City will adhere to and cooperate with the County in executing evacuation procedures as well as annually update information and procedural brochures for the public; these brochures will contain information on evacuation procedures and routes, and will be distributed to city residents at local businesses and government agencies. ^xxi Objective NR-1.1: Preserve and protect the existing natural systems within Virginia Key, the Dinner Key spoil islands, and those portions of Biscayne Bay that lie within the City's boundaries. ^xxii Objective NR-1.2: Improve the water quality of, and ensure health safety within, the Miami River, its tributaries and the Little River. ^xxiii Objective NR-3.2: Prevent the degradation of ambient air quality within the city. ^xxiv Objective CI-1.3: Ensure that future development and redevelopment pay an equitable, proportional share of the cost of public facilities required to maintain adopted LOS standards. ^xxv Objective TR-1.1: All arterial and collector roadways under County and State jurisdiction that lie within the City's boundaries will operate at levels of service established by the respective agency. All other City streets will operate at levels of service that are consistent with an urban center possessing an extensive urban public transit system and characterized by compact development and moderate-to-high residential densities and land use intensities, and within a transportation concurrency exception area (TCEA). The City will monitor the levels of service of all arterial and collector roadways to continue to develop and enhance transportation strategies that promote transit and minimize the impacts of the TCEA. ^xxvi Eleven of these items deal solely with zoning: Objective LU-1.1 and its Policies LU-1.1.1 and LU-1.1.3 require (1) development regulations and orders — that is zoning regulations and orders — that meet minimum level of service standards as adopted in the Capital Improvements Element of the comprehensive plan, and (2) a "zoning ordinance" that protects against encroachment of incompatible land uses, adverse impacts that degrade public health and safety, and transportation policies that fragment established neighborhoods. Miami Comprehensive Neighborhood Plan, Volume I, Objective LU-1.1, Policy LU-1.1.1, Policy LU-1.1.3.

Objective LU-1.5 states that land development regulations — that is, zoning regulations — will protect the City's natural and coastal resources. Miami Comprehensive Neighborhood Plan, Volume I, Objective LU-1.5. Policy LU-1.5.1 mandates development orders — zoning orders — that are "consistent with the goals, objectives and policies of the Natural Resource Conservation and Coastal Management elements of the Miami Comprehensive Neighborhood Plan." Miami Comprehensive Neighborhood Plan, Volume I, Policy LU-1.5.1.

Policy LU-1.6.5 states that special district designations will be used as "a land development regulation [zoning ] instrument." Miami Comprehensive Neighborhood Plan, Volume I, Policy LU-1.6.5. Policy LU-1.6.9 states that land development regulations — that is, " zoning regulations — will mitigate adverse impacts of future development." Miami Comprehensive Neighborhood Plan, Volume I, Policy LU-1.6.9.

There is no "LU-1.10" as suggested by Petitioners' exceptions.

Policies HO-1.1.5, HO-1.1.7, and HO-1.1.8 are policies that implement an objective to " assist the private sector in increasing the stock of affordable housing within the city by at least 10 percent by 2005." Miami Comprehensive Neighborhood Plan, Volume I, Objective HO-1.1. These policies require the City to enforce and strengthen zoning regulations that will preserve and enhance the appearance and character of the City's neighborhoods; to use zoning regulations to restrict development that may negatively impact residential neighborhoods; and to use the City's zoning ordinance to retain residential zoning where suitable. Miami Comprehensive Neighborhood Plan, Volume I, Policy HO-1.1.5, Policy HO-1.1.7, Policy HO-1.1.8.

Two of the items stricken relate to general procedures involved in plan amendments and rezoning: Objective 3-1 requires prompt review and action on petitions for land use plan amendments and rezoning in infill and redevelopment areas; Objective 3.2 requires creation of "formal procedures" for coordinating City planning and operating functions that are directly related to the City's comprehensive plan with various federal, state, and local agencies and organizations. Miami Comprehensive Neighborhood Plan, Volume I, Objective 3.1, Objective 3.2.

Objective HO-2.1 states that the City will " [a]chieve a livable downtown with a variety of urban housing types for persons of all income levels." Miami Comprehensive Neighborhood Plan, Volume I, Objective HO-2.1.

Objectives CI-1.1 and CI-1.2 relate to capital improvements and fiscal planning to provide the capital facilities required to maintain adopted LOS standards and are two of four objectives to assure that adequate resources are secured either from public or private sources " to maintain existing public infrastructure, that meet the need for public facilities resulting from future development and redevelopment. . . ." Miami Comprehensive Neighborhood Plan, Volume I, Goal CI-1.

There is no "IC-1.2" as suggested by Petitioners' exceptions. Objective IC-2.1 requires only the adoption of " a planning coordination mechanism" to ensure that consideration is given to the impacts of land development and transportation policies within Miami on areas outside the City and the impacts of development outside the City on the City. Miami Comprehensive Neighborhood Plan, Volume I, Objective IC-2.1.

Objective TR-1.5 states its objective to be to " support Miami-Dade County, which is the sole authorized operator of public transit in Miami-Dade County, in the provision of . . . essential public transit services." Miami Comprehensive Neighborhood Plan, Volume I, Objective TR-1.5. Objective TR-1.9 deals solely with the Port of Miami and Miami International Airport and states that the " City shall seek to achieve consistency and coordination" between the two entities and the comprehensive plan. Miami Comprehensive Neighborhood Plan, Volume I, Objective TR-1.9.

Objectives SS-1.3 and PW-1.1 deal with concurrency and state that the City's land use regulations — that is, zoning ordinances — will ensure that redevelopment will not occur unless adequate waste and potable water transportation exists to serve that development. Miami Comprehensive Neighborhood Plan, Volume I, Objective SS-1.3, Objective PW-1.1.

Objective PA-1.1 deals solely with the Port of Miami and states that the City " through its land development regulations," that is, zoning regulations, will co-ordinate land use in those areas of the City located adjacent to the port with transportation related activities to ensure compatibility. Miami Comprehensive Neighborhood Plan, Volume I, Objective PA-1.1. The remaining items deal with the Port of Miami River. Objective PA-3.1 and Policy PA-3.1.3 require the City " through land development regulations," that is zoning regulations, to " help protect the Port of Miami River from encroachment by non water-dependent or water-related land uses," and to "mitigate potential adverse impacts arising from the Port of Miami River upon adjacent natural resources and land uses." Miami Comprehensive Neighborhood Plan, Volume I, Objective PA-3.1, Policy PA-3.1.3. Objective PA-3.2 requires the City to coordinate surface transportation access to the Port of Miami River with the system shown on the traffic circulation map. Miami Comprehensive Neighborhood Plan, Volume I, Objective PA-3.2. Policy PA-3.3.1 requires the City "through its Intergovernmental Coordination Policies," to support the functions of the Port of Miami River. Miami Comprehensive Neighborhood Plan, Volume I, Policy PA-3.3.1. There is no "PA-3.12" as suggested by Petitioners' exceptions.

xxvii Petitioners stipulated in the administrative proceeding that this plan had never been adopted by the City and thus was not binding on it.