Based on the stipulations and joint request of the parties, a further continuance was granted until December 1990. The formal hearing recommenced on December 5-7, 1990, and the record was left open until December 14, 1990, for filing of various stipulations agreed on by the parties.
FLORIDA-GEORGIA J. Doyle Tumbleson VENTURE GROUP: Attorney at Law
DEPARTMENT OF Julia Johnson, Attorney COMMUNITY AFFAIRS: David Russ, Senior Attorney
CITY OF ORMOND BEACH: Fred S. Disselkoen, Jr.
EAST CENTRAL FLORIDA Gerald S. Livingston and NORTHEAST FLORIDA Attorney at Law REGIONAL PLANNING Post Office Box 2151 COUNCILS: Orlando, Florida 32802
ANNIE JOHNSON AND Jonathan Hewett FLAGLER CITIZENS FOR Attorney at Law AFFORDABLE HOUSING: Central Florida Legal
Services, Inc.
The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
During the course of the proceedings, various settlements, agreements, and stipulation have been entered into by most of the parties, which have resolved most, but not all, of the issues originally raised in the petitions. First, the Applicant agreed to a significant downsizing and reconfiguration of the project. The current scope of the project is more fully described in the Findings of Fact. All parties agreed that standing was not an issue and that certain conditions must be applied. Those conditions are set forth in Florida-Georgia Exhibit 14. The Joint Stipulation of the Florida Audubon Society, Florida- Georgia Venture Group, Flagler County, and City of Ormond Beach, Florida-Georgia Exhibit 9, reflects all parties', except Citizens for Ormond Beach, settlement of all environmental issues. The terms of this settlement are incorporated into and made a part of this Recommended Order.
Additionally, during the course of the hearing, the issues raised by Annie Johnson and the Citizens for Affordable Housing were settled based on the contents of Florida-Georgia Exhibit 3, which was also agreed to by all other parties, except Citizens for Ormond Beach. Further, the Joint Stipulation of the Department Of Community Affairs, Florida-Georgia Venture Group, and Flagler County, dated January 7, 1991, settles all issues raised by the signatory parties.
The issues which remain for consideration in this Recommended Order are those raised by (1) the City of Ormond Beach regarding the impact on the capital facilities of the city and whether the proposed project adequately addresses those impacts and (2) the Citizens for Ormond Beach regarding (a) environmental impacts, (b) density, (c) impacts on Ormond Beach capital facilities and resources, and (d) affordable housing in the Ormond Beach portion of the project.
Finally, the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach and the Joint Stipulation of Florida-Georgia Venture Group and Flagler County were both filed on December 14, 1990. These two joint stipulations contain agreed Decisions and Orders Granting the Application for Development Approval for the Hunter's Ridge DRI, if the Recommended Order makes a recommendation that the development approval be granted. These two stipulated orders contain and are consistent with all of the agreed conditions and other stipulations of all parties made throughout the course of these proceedings.
The City of Ormond Beach is not waiving its objections to the project and is not stipulating that it should receive approval or approval without additional conditions.
The Applicant, Florida-Georgia, presented the testimony of John Thomas Beck, Gregory F. Golgowski, Michael D. Brown, Gerald E. Upson, and Richard Jacobs. Florida-Georgia Exhibits 1-15 were admitted in evidence. Flagler County presented the testimony of Kenneth E. Koch and had Flagler Exhibits 1-4 admitted in evidence. The City of Ormond Beach presented the testimony of Michael Longfellow, Michael G. Gluskin, Richard Shearer, Ronald Jacobs, Paul
Lane, and David Day. Ormond Beach Exhibits 1-8 were admitted in evidence. Finally, Citizens for Ormond Beach (Citizens) used the witnesses of the City of Ormond Beach as its own and had Citizens Exhibits 2-8 admitted in evidence.
The transcript of the December 5-7, 1990, hearing was filed on January 11, 1991. The transcript of the October 22, 1990, portion of the hearing was filed on January 22, 1991. No transcript was furnished of the motion hearings on October 23, 1990. Proposed findings of fact and conclusions of law were timely filed by Florida-Georgia, the Department of Community Affairs, the City of Ormond Beach, and Citizens for Ormond Beach. The other parties had settled all issues through stipulations and elected not to file proposed recommended orders. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner.
The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review.
The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres.
The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses.
The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement.
The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida.
The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990.
At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach.
The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42-
2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County.
The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach.
This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings.
At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14.
As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums.
As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational;
30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas.
Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies.
Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres.
Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation.
The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project.
The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan.
The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations.
The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species.
The soils on the project will support the proposed development.
During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval.
The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife.
The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources.
The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River.
The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands.
The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas.
The proposed plan of development reflects a development that provides adequate environmental protection.
The proposed project will have no adverse environmental impacts in the City of Ormond Beach.
The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date.
The proposed Conditions of Approval require that all construction within the project be protected against flooding.
The project has sufficient safeguards to prevent construction within flood prone areas.
Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project.
The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan.
The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40.
The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout.
The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts.
The proposed Conditions of Approval adequately address the transportation concerns of Flagler County.
The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach.
The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan.
If the conditions for providing public facilities are not met by the Applicant, development must cease.
The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes.
The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities.
The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services.
The Applicant will have to subsidize any deficits in providing public services.
The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project.
Solid waste is not an issue in Flagler County.
The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment.
The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County.
The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers.
The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units.
The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development.
The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance.
The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant.
The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone.
The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City.
The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach.
The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services.
The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time.
The City of Ormond Beach is capable of providing potable water service to the project.
Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project.
The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project.
The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed.
The City of Ormond Beach does not lose money on water and sewer fees.
If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach.
The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach.
The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach.
Future growth in the City of Ormond Beach will pay for itself in terms of capital needs.
The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state.
Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run.
The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets.
The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions.
The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities.
The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas.
The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails.
The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services.
The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach.
The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works.
The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach.
The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan.
The Hunter's Ridge DRI meets all regional requirements.
The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl."
The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes.
Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept.
The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils.
As to the portions within Flagler County, the Hunter's Ridge DRI:
Is consistent with the provisions of Chapter 380, Florida Statutes;
Is beneficial to Flagler County;
Is consistent with the Flagler County Comprehensive Plan;
Is consistent with the NEFRPC report and recommendations;
Is superior to existing zoning;
Provides better development and more planning opportunities than non- DRI approaches to development; and,
Provides adequate controls for the development of Hunter's Ridge.
The Ormond Beach portion of the project:
Is consistent with the provisions of Chapter 380, Florida Statutes;
Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations;
Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order.
To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Sections 120.57(1) and 380.07(3), Florida Statutes.
In DRI proceedings, the developer or applicant has the burden of persuasion and the burden of going forward. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 3rd DCA 1990).
The development of Hunter's Ridge pursuant to the conditions and stipulations of the parties is consistent with the provisions of Section 380.06(14) and (15), Florida Statutes, and Rule 9J-2.025, Florida Administrative Code. The development will not interfere with the achievement of the objectives of an adopted state land development plan applicable to the area. The overall development will be rendered consistent with the local comprehensive plans and local land development regulations. Further, the development is consistent with the State Comprehensive Plan.
The development orders, as modified by the stipulations and conditions, adequately describe the development which is being approved, specifying and describing acreage attributable to each use. These development orders, subject to the appropriate conditions, are those contained in the Joint Stipulations between Florida-Georgia and the City of Ormond Beach and Flagler County. Copies are attached to the original of this Recommended Order for ease of reference, but are not attached to the copies since all parties already have copies of same.
The development consistent with the referenced development orders adequately mitigates the adverse impacts of the DRI upon the environmental and natural resources of the region. The project ensures that the development will efficiently use and will not unduly burden water, sewer, solid waste disposal, or other necessary public facilities, including public transportation facilities. The development will adequately mitigate any adverse impacts of the DRI upon the ability of people to find adequate housing reasonably accessible to their places of employment. Further, the Hunter's Ridge development is consistent with the State Comprehensive Plan and with the State Land Development Plan. Finally, the development complies with all criteria established by the Regional Planning Councils having jurisdiction over the project.
