Payne v. Miami

• Decision Date: 08 December 2010
• Docket Number: No. 3D06-1799.,3D06-1799.
• Citation: 52 So.3d 707
• Parties: Herbert PAYNE; Ann Stetser; The Durham Park Neighborhood Association, a Florida not-for-profit corporation; and The Miami River Marine Group, Inc., a Florida not-for-profit corporation, Appellants, v. CITY OF MIAMI, a Florida municipal corporation; and Balbino Investments, LLC, Appellees.
• Court: Florida District Court of Appeals

52 So.3d 707

Herbert PAYNE; Ann Stetser; The Durham Park Neighborhood Association, a Florida not-for-profit corporation; and The Miami River Marine Group, Inc., a Florida not-for-profit corporation, Appellants,

v.CITY OF MIAMI, a Florida municipal corporation; and Balbino Investments, LLC, Appellees.

No. 3D06-1799.

District Court of Appeal of Florida,

Third District.

Dec. 8, 2010.

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 adoptedby 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 waterfront 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 Amendmentis 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

...