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PAYNE v. CITY OF MIAMI
PER CURIAM:
Petitioner James Carey ("Carey") seeks review of a Benefits Review Board ("BRB") order denying him attorney's fees under § 28(b) of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. We GRANT the petition for review, VACATE the decision of the BRB, and REMAND for further proceedings consistent with this opinion.
The Office of Worker's Compensation Programs, United States Department of Labor, is a nominal respondent in this matter but is aligned with Carey and participated in briefing.
FACTS AND PROCEEDINGS
Carey was injured while working as a longshoreman for Respondent Ormet Primary Aluminum Corporation ("Ormet"). Ormet voluntarily paid Carey benefits under the LHWCA based upon an average weekly wage ("AWW") of $1423.92. Later, Ormet informed Carey that it believed that certain holiday, vacation, and container royalty benefits (collectively, "premium pay") were improperly included in the calculation of Carey's AWW, and Ormet sought an informal conference to resolve the controversy. See 33 U.S.C. § 928(b) (requiring that, in the event that a dispute arises as to the amount of compensation to which a claimant may be entitled, the deputy commissioner shall set the matter for an informal hearing and issue a written recommendation). At the conference, Ormet argued that Carey's AWW was properly calculated as $1,169.33, an amount that reflected the exclusion of premium pay. The district director rejected Ormet's argument and issued a written memorandum of informal conference recommending that Ormet continue to pay benefits based upon an AWW of $1423.92.
"The statutory term `deputy commissioner' and the current administrative designation `district director' are interchangeable terms." Craven v. Dir., OWCP, 604 F.3d 902, 904 n. 1 (5th Cir. 2010).
It is undisputed that Ormet contested the district director's decision by requesting a formal hearing before an Administrative Law Judge ("ALJ"). The parties also agree that Ormet continued to make payments to Carey based upon an AWW of $1423.92 through the time of the hearing before the ALJ. The parties differ, however, in their characterization of the post-informal conference payments. Carey argues that Ormet's decision to request a formal hearing before the ALJ to reargue that the AWW was properly calculated as $1,169.33 was a refusal to accept the district director's recommendation. Ormet does not contend that it accepted the recommendation, but suggests that because it voluntarily continued payments based upon the district director's recommended AWW, it did not refuse that recommendation.
The record reflects that Ormet did so pursuant to an agreement between counsel — Carey had a simultaneous lawsuit pending against the owner of the ship aboard which he was injured, and the statute provides "that an employer who has paid benefits to an employee who later recovers for his injuries from a third party shall receive a credit for the `net amount' recovered against that third party." Bourgeois v. Avondale Shipyards, 121 F.3d 219, 221 (5th Cir. 1997) (citing 33 U.S.C. § 933(f)). This court ultimately affirmed an award in Carey's favor against the shipowner, and Ormet was reimbursed over $300,000, representing the full amount of benefits paid under the LHWCA. See Carey v. Hercules Ocean Corp., 321 Fed.Appx. 402 (5th Cir. 2009).
After a formal hearing, the ALJ rejected Ormet's argument that Carey's AWW should not include premium pay. The ALJ also, however, determined that Carey's AWW was properly calculated as $1,369.15. Although the court cannot divine how the ALJ arrived at this figure, it is ultimately irrelevant. It is undisputed that the ALJ rejected Ormet's argument and that its calculation included premium pay. As explained below, in light of our disposition of this case, we need not resolve the confusion. The ALJ also gave Carey's counsel thirty days to file an application for attorney's fees. Carey filed a petition for fees, seeking to shift liability to Ormet under § 28(b) of the LHWCA. The ALJ denied the petition, finding that attorney's fees were inappropriate under § 28(b) "as no greater compensation was ever received after the informal conference." Carey moved for reconsideration, which the ALJ denied. Carey appealed to the BRB, which affirmed the ALJ's decision. Carey timely petitioned this court for review.
While the parties agree that Ormet made pre-hearing payments to Carey based on an AWW of $1,423.92, the ALJ erroneously stated that Ormet had used an AWW of $1,369.15. Carey characterizes the ALJ's calculation as a "technical reduction." The federal respondent offers no explanation, but notes that a calculation based upon Carey's earnings as stipulated to by the parties would properly be $1,400.17. Ormet offers no explanation for the ALJ's calculation, but highlights the fact that the ALJ-determined AWW is lower than the pre-hearing AWW.
Ormet did not appeal the ALJ's decision that Carey's AWW properly included premium pay.
DISCUSSION
A. Standard of Review
"This Court conducts a de novo review of the BRB's rulings of law, owing them no deference because the BRB is not a policymaking agency." Pool Co. v. Cooper, 274 F.3d 173, 177 (5th Cir. 2001) (citations omitted). "But this court does afford Skidmore deference to the Director's interpretations of the LHWCA. . . . Under this approach, the amount of deference owed the Director's interpretation will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Avondale Inds., Inc. v. Alario, 355 F.3d 848, 851 (5th Cir. 2003) (citing United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (quoting Skidmore v. Swift Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944))).
B. Shifting Attorney's Fees Under § 28(b) of the LHWCA
Sections 28(a)-(b) of the LHWCA are codified as 33 U.S.C. §§ 928(a)-(b) and provide two bases for awarding attorney's fees upon successful prosecution of a LHWCA claim. The parties agree that § 28(a) is not at issue. In relevant part, § 28(b) provides:
If the employer or carrier pays or tenders payment of compensation without an award pursuant to section 14(a) and (b) of this Act [ 33 U.S.C. § 914(a) and (b)], and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the deputy commissioner or Board shall set the matter for an informal conference and following such conference the deputy commissioner or Board shall recommend in writing a disposition of the controversy. If the employer or carrier refuse to accept such written recommendation, within fourteen days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled. If the employee refuses to accept such payment or tender of compensation, and thereafter utilizes the services of an attorney at law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation. . . . In all other cases any claim for legal services shall not be assessed against the employer or carrier33 U.S.C. § 928(b). "From this comprehensive scheme regulating attorney's fees we discern a Congressional intent that when an employer contests its liability for compensation in whole or in part and the claimant is ultimately successful, the employer and not the claimant must pay the claimant's attorney's fees for services necessary to that success regardless of how close a case might be which is litigated but finally lost by (the employer)." Hole v. Miami Shipyards Corp., 640 F.2d 769, 774 (5th Cir. Unit B 1981) (discussing § 928).
"[S]ection 928(b) requires all of the following: (1) an informal conference, (2) a written recommendation from the deputy or Board, (3) the employer's refusal to adopt the written recommendation, and (4) the employee's procuring of the services of a lawyer to achieve a greater award than what the employer was willing to pay after the written recommendation." Va. Int'l Terminals, Inc. v. Edwards, 398 F.3d 313, 318 (4th Cir. 2005) (Luttig, J.) ( quoted in Andrepont v. Murphy Exploration Prod. Co., 566 F.3d 415, 421 (5th Cir. 2009)).
Here, it is undisputed that the first two requirements are met. We have little difficulty concluding that third requirement is also satisfied. Although Ormet suggests its voluntary continuation of payments after the informal conference is not a refusal to adopt the director's written recommendation, the director's recommendation was that "the proper AWW in this case is $1,423.92," a figure that reflected the inclusion of Carey's premium pay. The record reflects that Ormet sought a formal hearing on the issue of "whether [the premium pay] received by Mr. Carey . . . should be included in AWW calculations?" Irrespective of any voluntary continuation of payment, Ormet sought to overturn the director's recommendation through litigation. Ormet's attempt to avoid characterization of its actions as a refusal of the director's recommendation borders on frivolous.
This dispute arises out of § 28(b)'s fourth requirement. We are confronted with the following situation: an employer actively argues it owes an employee one amount, but voluntarily pays the employee a second, higher, director-recommended amount. The ALJ then rules against the employer, but awards a third, middle amount — greater than the amount the employer concedes it owes, but lower than the amount recommended by the director. Ormet argues that because the ALJ-determined final award did not exceed the amount it voluntarily paid to Carey following the director's informal conference, the plain language of § 28(b) precludes any shifting of attorney's fees. It reasons that the statute provides for attorney's fees only ". . . if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier. . . ." Id. Carey and the federal respondent counter that Ormet's, and the BRB's, reading of the statute omits a critical qualifier — that the sentence preceding "the amount paid or tendered by the employer" makes it clear that this amount means "the additional compensation, if any, to which they [the employer] believe the employee is entitled." Id.
The employer agreed to make higher payments pending the outcome of the case. See supra note 3.
We have previously confronted a similar situation. In Savannah Machine Shipyard Co. v. Director, Office of Workers' Compensation Programs, an employee submitted a claim for compensation under the LHWCA. 642 F.2d 887, 888 (5th Cir. Unit B 1981). The employer commenced paying benefits, but later questioned "whether and to what the extent [the employee] was disabled by his injury." Id. The employer sought a hearing to resolve the controversy but continued to pay compensation. The ALJ ruled in the employee's favor, finding he was totally and permanently disabled, but also found that the employee's total disability was due in part to a prior disability. Id. As a result, the employer was due a reimbursement. Id. The ALJ awarded attorney's fees under § 28(b) and the BRB affirmed, "[f]inding that the [employer's] resistance of Mr. Floyd's claim necessitated the efforts of his attorney, the Benefits Review Board held that the [employer] was liable for the fees." Id.
On appeal, the employer in Savannah Machine contended that it was not liable for attorney's fees under § 28(b) on two grounds: 1) the employee "accepted payment from the [employer]"; and 2) the employer "was not found to be liable to [the employee] for any greater amount than it had already paid." Id. The court rejected the employer's first argument, observing "that Section 28(b) contains the requirement that `the employee refus(e) to accept such payment or tender of compensation.' But we do not accept the [employer's] underlying premise that a deserving claimant who accepts some compensation is later precluded from collecting attorney's fees incurred in an action to recover adequate compensation under the Act." Id. at 889. The court additionally rejected the employer's second argument, finding that "the [employer] disputed the existence as well as the extent of [the employee's] disability. Due to the [employer's] actions [the employee] was forced to retain counsel to protect his interest. [The employee] was ultimately awarded compensation exceeding that which the [the employer] admitted was due." Id. at 890; see also Pool Co. v. Cooper, 274 F.3d 173, 186 (5th Cir. 2001) (discussing § 28(b)'s requirements and noting the employee "subsequently did obtain a compensation award in excess of what [the employer] was willing to pay") (emphasis added); Day v. James Marine, Inc., 518 F.3d 411, 415 (6th Cir. 2008) (section 28(b) "requires . . . the claimant's use of an attorney to obtain more compensation than the employer was willing to pay.") (emphasis added); Newport News Shipbuilding Dry Dock Co. v. Dir., OWCP, 477 F.3d 123, 126 (4th Cir. 2007) (a "threshold requirement[]" of § 28(b) is "the employee's procuring of the services of a lawyer to achieve a greater award than what the employer was willing to pay after the written recommendation.").
This case is nearly indistinguishable from Savannah Machine. Like the employee in Savannah Machine, Carey was temporarily paid an amount higher than the amount "to which [Ormet] believe[d] the employee is entitled." 338 U.S.C. § 928(b). Ormet sought a formal hearing before an ALJ to argue for a reduction in the benefit amount it was paying — a reduction to the amount "to which [the employer] believe[d] the employee is entitled." Id. Although Carey accepted some compensation, he is not "precluded from collecting attorney's fees incurred in an action to recover adequate compensation under the Act." See Savannah Machine, 642 F.2d at 889. Carey "thereafter utilize[d] the services of an attorney at law" to obtain an award "greater than the amount" to which Ormet believed he was entitled. 33 U.S.C. § 928(b); see also Savannah Machine, 642 F.2d at 890.
Ormet suggests that Savannah Machine is not binding authority because it is a per curiam opinion. We note that, although as Judge Nygaard has facetiously pointed out, "Judge Per Curiam is statistically less windy than its named colleagues," a per curiam opinion is just as binding as a signed opinion if it is published. See Richard Lowell Nygaard, The Maligned Per Curiam: A Fresh Look at an Old Colleague, 5 SCRIBES J. LEG. WRITING 41, 47 (1994-95).
Ormet contends that Savannah Machine can be distinguished on grounds that the employer in that case contested the claimant's entitlement to any benefits. There is no basis for such a distinction. First, the employer in Savannah Machine contested both "the existence as well as the extent of the [employee's] disability" before the ALJ, prevailing on the latter. Second, "Section 28(b) speaks of the difference between the amount ultimately awarded the employee and the amount previously tendered or paid by the employer; obviously, the section contemplates coverage in cases in which the employer has paid, and hence the employee has accepted, partial compensation." Savannah Machine, 642 F.2d at 890 n. 7.
Ormet also argues that its payments to Carey "were voluntary and unconditional." The record reflects that Ormet sought not only to reduce the amount of Carey's benefit going forward, but to recover "overpayments of benefits" it believed it had made to Carey. While Ormet's advance compensation payments may have been voluntary, they were certainly not unconditional. See BLACK'S LAW DICTIONARY 1663 (9th ed. 2009) (defining "unconditional" as "absolute").
Andrepont does not compel a different result. 566 F.3d 415. In that case, this court determined that an unfavorable recommendation from the district director on the issue of additional compensation, even if the claimant was later successful on that issue before the ALJ, would preclude the claimant's recovery of attorney's fees pursuant to § 28(b) of the LHWCA. Id. at 423. In so doing, we noted that § 28(b) "does not literally provide for fee-shifting when employers accept the BRB's recommendation after an informal conference" and recognized that although the result in Andrepont "seems to be adverse to the purpose of the statute . . . We are required to construe the plain meaning of the statute." Id. at 420-21. The BRB suggests, and Ormet argues, that Savannah Machine is no longer controlling precedent in light of Andrepont's recognition that we cannot "elevate the purposes of the statute above the plain text reading." Id. at 421. This reasoning is erroneous on three grounds: 1) unlike Andrepont, a plain text reading of the relevant statutory provision here makes it clear that "the amount paid or tendered by the employer" is "the additional compensation, if any, to which they [the employer] believe the employee is entitled"; 2) Andrepont did not purport to overrule Savannah Machine, but instead approvingly cited the case; and 3) "[i]t is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court." Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
Accordingly, consistent with Savannah Machine, we hold that Carey has met the requirements of § 28(b) and the ALJ and the BRB erred in denying him attorney's fees.
CONCLUSION
Carey's petition for review is GRANTED. The decision of the BRB is VACATED and this case is REMANDED for further proceedings consistent with this opinion.
Section 928(b) provides that "a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation." 33 U.S.C. § 928(b). As discussed above, significant confusion exists as to the proper calculation of Carey's AWW, a figure that is necessary to determine the reasonable attorney's fee. On remand, the BRB or the ALJ may determine Carey's AWW anew. This is not, however, an invitation to renew the inquiry into whether Carey's AWW properly includes the premium pay.
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, 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.
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).").
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.
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