PAYNE v. CITY OF MIAMI LLC (2007)

Riverside 22 Investments, LLC (“Riverside”) owns a 4.3-acre parcel located on the south side of the Miami River at 2215 N.W. 14th Street, Miami, Florida. Riverside applied for and obtained from the City of Miami (“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 to Restricted Commercial. Riverside 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 the construction of a multi-family development project on the property. The ordinance approving the FLUM Amendment was adopted by the City Commission on January 26, 2006, and was signed by the Mayor on January 31, 2006.¹ The City approved the rezoning of the property and the MUSP on the same day. The approved development on this 4.3-acre waterfront parcel is for two twelve-story residential condominiums consisting of 633 dwelling units. The MUSP and the rezoning have not been challenged in this appeal.

The following parties filed a petition with the Division of Administrative Hearing (“DOAH”), challenging the ordinance that approved the FLUM Amendment: Captain 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; The Durham Park Neighborhood Association, Inc. (“Durham Park”), a non-profit neighborhood association comprised of approximately ninety homeowners and businesses located in the Durham Park area, which is located on the south side of the Miami River and to the east of the Riverside property; and The Miami River Marine Group, Inc. (“Marine Group”), a trade association representing marine and industrial businesses along the Miami River (collectively referred to as “the appellants”). After a hearing, the administrative law judge (“ALJ”) issued a Recommended Order, which was subsequently adopted by the 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 (citing with approval City of Jacksonville Beach v. Coastal Dev. of N. Fla., Inc., 730 So.2d 792, 794 (Fla. 1st DCA 1999)(emphasis added)).

In applying these standards, we conclude that because the ALJ (1) refused to apply the findings of this court in Payne v. City of Miami, 927 So.2d 904 (Fla. 3d DCA 2005) (“Payne II ”), preferring, instead, to rely on the Department's contrary definition of the term “Port of Miami River” in Monkus v. City of Miami, DOAH Case No. 04-1080GM (Department of Community Affairs, Final Order, Oct. 28, 2004) (“Monkus ”), a definition rejected by this court in Payne II; (2) failed to examine the FLUM Amendment's impact upon, and consistency with, fundamental policy decisions contained in both the Comprehensive Plan and the Miami River Master Plan; and (3) made material findings that are unsupported by competent, substantial evidence, we must reverse. We additionally conclude that had the correct law been applied to facts supported by competent, substantial evidence, it would compel a finding that the Riverside FLUM Amendment is inconsistent with both the Comprehensive Plan and the Miami River Master Plan.

STATUTORY REQUIREMENTS

Section 163.3161, Florida Statutes (2005), which is referred to 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.

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(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 include, without limitation, regulatory incentives and criteria that encourage the preservation of recreational and commercial working waterfronts 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. (2005). The Riverside FLUM Amendment was sought and was granted as a small scale development pursuant to section 163.3187(1)(c).

On July 1, 2005, prior to the City's first reading of the proposed ordinance to amend the future land use designation of Riverside's property,² section 163.3187(1)(c), Florida Statutes (2004), was amended to provide an exception to the time limitation for amendments to the Comprehensive Plan for a small scale amendment if:

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

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e. The property that is the subject of the proposed amendment is not located within an area of critical state concern, unless the project subject to the proposed amendment involves the construction of affordable housing units meeting the criteria of s. 420.0004(3), and is located within an area of critical state concern designated by s. 380.0552 or by the Administration Commission pursuant to s. 380.05(1)․

f. If the proposed amendment involves a residential land use, the residential land use has a density of 10 units or less per acre or the proposed future land use category allows a maximum residential density of the same or less than the maximum residential density allowable under the existing future land use category, except that this limitation does not apply to small scale amendments involving the construction of affordable housing units meeting the criteria of s. 420.0004(3)․

§ 163.3187(1)(C)(1)(e)-(f), Fla. Stat. (2005).³

Thus, before a small scale FLUM Amendment may be approved without complying with the requirements normally imposed, the applicant must demonstrate that the amendment involves property that is ten acres or less and (1) the property is not located in an area of critical state concern unless the amendment involves the construction of affordable housing units meeting the criteria of section 420.0004(3) and other factors, or (2) the proposed amendment involves a residential use with a density of ten units or less per acre or the maximum density is equal to or less than the density allowable under the existing future land use category, unless the small scale amendment involves the construction of affordable housing pursuant to section 420.0004(3), or the property is designated in the Comprehensive Plan as urban infill, urban development, or downtown revitalization.

We note that there was no evidence presented demonstrating that this small scale FLUM Amendment falls into any of these exceptions or that it qualifies for any of the exceptions provided for in section 163.3187, Florida Statutes (2005). There was no evidence presented demonstrating that this small scale FLUM Amendment was sought to build affordable housing. The evidence in the record, in fact, suggests a contrary conclusion. The picture of the proposed development reflects that the Riverside project is for something on a much grander scale, and it is on the water, which generally increases the value and, thus, the cost of a residential unit. The density for the proposed development is over ten units per acre, and as the current Industrial classification permits no residential uses, the density exception clearly does not apply. The only exception the Riverside FLUM Amendment could conceivably be relying on is that the subject property is in an urban infill zone. However, the City, after paying for and participating in the creation of the Miami River Corridor Urban Infill Plan, failed to adopt the Plan, and takes the position that the entire City is an urban infill site. We find this argument hard to accept.

Because the appellants have not challenged the FLUM Amendment on the basis that it fails to comply with section 163.3187 or that the FLUM Amendment does not fall within any of the exceptions contained in the statute, we merely note our concern but do not base our analysis or reversal on this issue.

In addition to the statutes regulating land development, 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. 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;

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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 of 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 as 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 Riverside a small scale FLUM Amendment for its property located within this specially protected district, thereby allowing the construction of residential units that are totally unrelated to waterfront activities. As will be addressed in depth herein, Riverside's FLUM Amendment is contrary to these provisions and 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 was, however, completely flawed because he failed to consider two of the most critical sections of the Comprehensive Plan, the Port of Miami River Subelement and portions of the Coastal Management section, in reaching this conclusion. Additionally, the ALJ's confusion as to where this property is located seriously calls into question his understanding of the evidence and his ability to evaluate the evidence with respect to the Comprehensive Plan.

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.” Unfortunately, the definition of the “Port of Miami River” has occupied a prominent position of contention among the parties in their pleadings and arguments before the ALJ and this court, despite our ruling in Payne II. Because the ALJ who heard the appellants' petition in this case refused to apply this court's findings in Payne II, precluded the appellants from presenting evidence and argument in reliance upon this court's holding in Payne II, and, instead, relied upon the Department's definition of the term “Port of Miami River” in Monkus, a definition clearly rejected by this court in Payne II, we must address the issue again.

Riverside and the City cite to a footnote in the Comprehensive Plan and argue that when the Comprehensive Plan refers to the “Port of Miami River,” it is referring to the fourteen commercial shipping companies that were located along the Miami River in 1989. The footnote Riverside and the City are referring to 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, they argue that the policies and objectives regarding the Port of Miami River in the Comprehensive Plan only apply to those fourteen companies. Not only is this argument illogical, it was rejected by this court in Payne II:

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).

Some of the objectives and policies found in the “Port of Miami River” subelement of the Comprehensive Plan, which 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.

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.

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 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 maritime industry that complements, and often competes with, the Port of Miami River.

The City and Riverside's argument is illogical as 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. 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. 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, 7,500 jobs, and $45 million in tax revenue per year. The shipping industry along the Miami River is not only growing, but further expansion is all but certain when the U.S. Army Corps of Engineers completes its dredging of the Miami River. It, therefore, is illogical to conclude that the City meant only to protect the original fourteen shipping companies along the Miami River. Thus, we reaffirm our position in Payne II, that the “Port of Miami River” referred to in the Comprehensive Plan, 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; that the name “Port of Miami River” was simply coined in 1986 to satisfy a U.S. Coast Guard regulation governing bilge pumpouts; and that there are currently between twenty-five and thirty independent shipping companies operating on the Miami River as opposed to the fourteen companies operating in 1986. 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 stressed 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, included in Riverside's January 26, 2006 FLUM submittal is 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 submittal lists the fourteen 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 currently exists:

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.

This document names the twenty-eight shipping terminals that existed in 1995 and which were considered the “Port of Miami River” at that time. While the document does not provide a more current list of the Port of Miami River entities, it is clear that the term includes the shipping terminals along the river wherever they are located and regardless of the name or ownership.

Jack Luft, who testified for the appellants and was accepted by the ALJ as an expert land planner based upon a stipulation by the parties, views the Port of Miami River more expansively. 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, and Bicentennial Park, and for a number of neighborhood revitalization parks; planned the Design District in the 1990'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 Miami River Master Plan was adopted in 1992, and as a result of this plan, the Port of Miami River Subelement was introduced into the Comprehensive Plan to further the specific objectives of the Miami River Master Plan. He noted that the Miami River Master Plan was a “holistic view of the river,” designating different land uses along the river and creating a balance between the uses, while identifying the core of the sustainable marine river industries that must be protected and preserved as marine industrial. He testified that the Miami River Master Plan specifically mentions the Comprehensive Plan, which has the force of law behind it, lays the foundation for subsequent amendments to the Comprehensive Plan, and recommends the establishment of a “Port of Miami River.” In reliance of this background, Mr. Luft defines the “Port of Miami River” as:

[A] collection of shipping industries ․ supported by a variety of marine water-related activities including tugboats, construction firms, repair, vessel maintenance, parts distribution, freight forwarders that are all part of the network that makes the port operate. There [are] literally the container ships and the offloading and unloading and there is a subsidiary of groups that are essential and critical to provide that as an operation.

The port element speaks to maintaining and supporting those other dimensions of the port industry. It's all a part, and therefore it is within the industrial area of the river, it is not confined to just a specific number of terminals that actually are supposed to expand and may expand in different locations within the industrial zone. So literally in my opinion the industrial zone and its associated industries that are all interconnected and interrelated are the port. That's the way the port works. Without that support industry the port is not functional and not sustainable.

(Emphasis added).

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. Luft's definition of the Port of Miami River. She testified 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.

The evidence supports Mr. Luft's and Dr. Bohnsack's definition of the Port of Miami River. We, therefore, conclude that the Port of Miami River encompasses the water-dependent marine activity on the river, which includes the shipping companies and terminals and the associated supporting marine industries zoned SD-4 on the Miami River.

This conclusion, however, is not dispositive. Whether we view the Port of Miami River as the ever-changing shipping terminals along the river or as the SD-4 water-dependent and water-related marine industries on the river, the ALJ erred in failing to consider the objectives and policies of the Port of Miami River Subelement, because in Payne II we specifically found that the Port of Miami River Subelement was not limited to the original fourteen shipping terminals. The ALJ, therefore, was not free to conclude otherwise.

This error is material, as the proposed Riverside 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. 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 Riverside's small scale FLUM Amendment to the Comprehensive Plan, changing the land use designation from Industrial to Restricted Commercial, and permitted this parcel of land located on the Miami River to be rezoned from SD4-2 Waterfront Industrial to Restricted Commercial, thereby allowing a mixed-use project, which is neither water-dependent nor water-related, to be built on the site, thereby limiting future expansion of the Port of Miami River.

Riverside and the City additionally argue that the Port of Miami River Subelement applies to land development regulations (zoning), not to land use, which is what the FLUM Amendment addresses. Riverside 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 Riverside's FLUM Amendment was consistent with the objectives and policies of the Port of Miami River Subelement. We disagree.

The Riverside property was zoned SD-4.2 Waterfront Industrial. Therefore, its land use designation was, by necessity, identified as Industrial. The SD-4.2 classification precludes any residential uses. The SD-4.2 land development regulation was 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 Miami River from encroachment by non-water-dependent or non-water-related uses that have no relevance to and do not support the shipping industry. By changing the land use 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 land development classification. Thus, by changing the land use, the FLUM Amendment by exclusion, dramatically changes the land development uses.

We are also unwilling to pretend ignorance or engage in willful blindness. The City agreed to amend the land use from Industrial to Restricted Commercial, granted Riverside's petition to change the land development classification from SD-4.2 Waterfront Industrial to Restricted Commercial, and granted Riverside's MUSP, thus permitting Riverside to build two multi-family residential twelve-story buildings, which are in no way related to the shipping industry and which are completely inconsistent with the Comprehensive Plan.

This parcel of land has always been used for marine industrial purposes. Prior to Riverside's purchase of the land, it was owned and used by Coastal Tug and Barge. Riverside's purchase of the land was contingent upon a successful change in its land use and zoning, and in obtaining a MUSP. Therefore, the land use change is clearly tied to the zoning change and MUSP.

We, therefore, conclude that the ALJ erred in refusing to consider the Port of Miami River Subelement, and find that had he done so, the inescapable legal conclusion would have been that the FLUM Amendment is inconsistent with the Comprehensive Plan.

Coastal Management

The Comprehensive Plan also contains a section, 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). 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 Riverside FLUM Amendment to the Comprehensive Plan, changing the land use designation from Industrial to Restricted Commercial and approved a change in the zoning from SD4-2 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 a land use change from Industrial to Restricted Commercial of a specifically zoned parcel of land on the banks of the Miami River, zoned SD-4.2, Waterfront Industrial, a designation reserved for shipping terminals, marine contractors, commercial shipyards, towing, and salvage, and which specifically excludes residential use.

The FLUM Amendment and zoning changes to Restricted Commercial, with the concurrent approval by the City to allow Riverside to construct two twelve-story multi-family residential buildings with 633 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 ALJ, however, failed to address or even consider Coastal Management Goal CM-3 in its Recommended Order, focusing solely upon Goal CM-4, which relates to safety issues regarding hurricanes. Had the ALJ properly considered Goal CM-3, the inescapable conclusion would have been that the FLUM Amendment is inconsistent with the 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.

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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.

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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 Waterfront Industrial SD-4 zoning classification was created to protect those uses and to ensure that there will be adequate land area for water-dependent and 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 recent and 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 for this parcel of land is consistent with the Comprehensive Plan and would be beneficial to the community.

Future Land Use

The Future Land Use section of the Comprehensive Plan also provides that a future land use goal is to “[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; ․ and (6) protects and conserves the city's significant natural and coastal resources.” Goal LU-1.

The ALJ found 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, such as Durham Park, and, therefore, is consistent with the Comprehensive Plan. What the ALJ failed to consider, however, is that Riverside's property is zoned SD-4.2, Waterfront Industrial, it is located within four contiguous Waterfront Industrial uses, and that collectively, these four properties are the single greatest concentration of SD-4 land along the Miami River in the City. The bulkhead shoreline of these properties constitutes over 3,000 linear feet of marine industrial shoreline. Directly to the west of the Riverside property is Detroit Diesel, a repair facility for private and commercial vessels, and to the east of the Riverside property is Brisas, which previously operated as a repair and storage facility for private and commercial vessels, and River Marine Services, a shipping operation. Additionally, to the west of Detroit Diesel is the Florida Yacht Basin, which was used to store ships during the hurricane season and is currently being used to paint and repair ships and yachts. Thus, a 633-unit residential facility located in the middle of these marine operations is hardly consistent. Additionally, Durham Park is a single-family marine oriented community located several hundred feet east of the Riverside property.

Durham Park objects to the proposed FLUM Amendment, which depletes marine uses along the river and a land use designation which permits a density of 150 dwelling units per acre with no height limitation, thereby allowing the construction of 633 dwelling units on this 4.3-acre site, which will be occupied by approximately 1,600 new residents. These residents will substantially strain the N.W. 22nd Avenue crossing over the Miami River which is already plagued by troublesome delays. We, therefore, find that the ALJ's conclusory finding, that the proposed land use would protect and enhance the quality of life in that neighborhood, is unsupported by the evidence.

The ALJ's finding that “the Allapattah neighborhood, in which the subject property is located, is an area in decline and mixed-use projects that include work forces and affordable housing will help stabilize the area by providing housing opportunities for employees at the Civic Center and in downtown who want to live near where they work,” is not only unsupported by the record, it is based upon a false premise that undermines all of the ALJ's findings. The Riverside property is not located in Allapattah. It is not even located on the same side of the Miami River as is the Allapattah neighborhood. Riverside's property is located in Grapeland Heights, which is in a stable middle-income area, not a blighted area or an area that is in decline. It is located within a working waterfront quadrant, near a shipping company and next to a marine-related business and Durham Park, a single-family residential neighborhood.

The ALJ also failed to consider the Miami River Corridor Urban Infill Plan, which specifically notes the “troubled land use situation” in the Durham Park/West Little Havana quadrant, the net loss of Waterfront Industrial property, and the “circulation impediments related to the south fork of the River.” The Miami River Corridor Urban Infill plan strongly recommends that a study be conducted and that the City work with the property owners and residents in the area.

The ALJ also failed to address LU-1(6), which requires the City to protect and conserve its “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 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 Riverside 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, 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 the Comprehensive Plan and the River Master Plan, the ALJ upheld Riverside's FLUM Amendment because it was not inconsistent with the City's position to encourage “diversification in the mix of industrial and commercial activities and tenants” in certain areas, including the “River Corridor.” Policy LU-1.3.6. The ALJ, however, precluded testimony by the appellants regarding this issue. Additionally, while diversification and mixed-use classifications may be desirable in certain locations along the Miami River, 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).

Additionally, there was no evidence presented to support the ALJ's finding that the Riverside project will provide affordable housing opportunities for employees at the Civic Center and the downtown area. No evidence was presented that there is a need for such housing, or that these units will be “affordable.” In fact, the evidence presented is just the opposite. Lourdes Slazyk, the Assistant Director for the City of Miami's Planning Department, admitted that there are currently between 300,000 and 400,000 people living in the City and that there are currently 95,000 new units being built or to be built in the City. The City calculates that each unit will house between 2.6 and 4.0 residents, thus providing for a population increase of 229,000 to 380,000. Riverside's FLUM Amendment would increase the projected population by at least another 1,658 people. There was no evidence presented, however, that the City is expecting to nearly double its population or that the 95,000 units already being built would not sufficiently provide the housing needs of the Civic Center and downtown areas.

MIAMI RIVER MASTER PLAN

(“River Master Plan”)

The River Master Plan is as a 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.” It 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, 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 [4] 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.

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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 Waterfront 1.4-1.5 (emphasis added).

The River Master Plan also specifically addresses the SD-4 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 Waterfront, Waterfront Industrial Zoning 1.12 (emphasis added). The River Master Plan further divides the SD-4 zoning classification into 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 shipyards, 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 resultant zoning changes. Riverside's property is zoned SD-4.2 Waterfront Industrial property, and therefore, is reserved for waterfront industrial purposes and specifically excludes any residential use.

The City, Riverside, and the ALJ 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 its application 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.

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Objective:

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

River Master Plan, Mid-River, Urban Design, 4.20. (emphasis added). Riverside'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 result in the displacement of marine businesses and that the SD-4.2 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․

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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 values uses by adopting separate “marine industrial” and “marine commercial” zoning district classifications.

River Master Plan, Marinas and Boatyards, Land Values 1.9. Riverside's FLUM Amendment, changing the land use designation from Industrial to Restricted Commercial, clearly is inconsistent with the objectives and policy considerations relating to property values. Riverside's 633-unit residential towers will most likely raise the 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.

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. Because we conclude that the ALJ erred by refusing to apply this court's definition of the Port of Miami River, failed to consider the Port of Miami River Subelement and critical areas of the Coastal Management and Future Land Use sections of the Comprehensive Plan, failed to consider critical sections of the River Master Plan, and made findings that were unsupported by the evidence, we reverse. We find that had the ALJ considered these areas of the Comprehensive Plan and the River Master Plan, he could not have concluded that Riverside's FLUM Amendment was consistent with either.

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.

Reversed.

FOOTNOTES

1.  Ordinance Number 12761.

2.  The first reading was on July 28, 2005, and the ordinance was ultimately passed by the City on January 26, 2006. Thus, the 2005 version of the statute would most likely apply.

3.  The previous version of this section of the statute also required that the proposed residential land use have a density of ten units or less per acre unless the amendment is to a designated urban infill site. This version of the statute does not provide the further exception found in the July 1, 2005 statute where the proposed future land use category allows a maximum residential density under the future land use category. Regardless of whether the July 1, 2005 version of the statute or the previous version is applied, the analysis and result would be the same.

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

ROTHENBERG, Judge.