STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE CITIZEN'S POLITICAL COMMITTEE, ) INC. and JAMES K. KESSLER, )
)
Petitioners, )
)
vs. ) CASE NO. 90-8101GM
) COLLIER COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents. )
) DEPARTMENT OF COMMUNITY AFFAIRS ) and SEWELL H. CORKRAN, )
)
Petitioners, )
)
and )
) THE CITIZEN'S POLITICAL COMMITTEE, )
INC. and JAMES K. KESSLER, ) CASE NO. 91-0858GM
)
Intervenors, )
)
vs. )
)
COLLIER COUNTY, )
)
Respondent. )
) SEWELL H. CORKRAN, )
)
Petitioner, )
)
and )
) THE CITIZEN'S POLITICAL COMMITTEE, ) INC. and JAMES K. KESSLER, )
) CASE NO. 91-0994GM
Intervenors, )
)
vs. )
) COLLIER COUNTY and DEPARTMENT OF ) COMMUNITY AFFAIRS, )
)
Respondents. )
)
FINAL ORDER
Pursuant to notice, final hearing in the above-styled cases was held in Naples, Florida, on July 22-26, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioners/Intervenors: The Citizen's Political
Committee, Inc. and James K. Kessler:
Robert C. Apgar
Haben, Culpepper, et al. Post Office Box 10095 Tallahassee, FL 32301
For Petitioner Sewell H. Corkran: Sewell H. Corkran, pro se
213 Ninth Avenue South Naples, FL 33940
For Respondent Collier County:
Marjorie M. Student Assistant County Attorney Collier County Courthouse 3301 East Tamiami Trail Naples, FL 33962
William W. Merrill, III Icard, Merrill, et al. Postal Drawer 4195
Sarasota, FL 34230
For Petitioner/Respondent Department of Community Affairs:
Stephanie M. Callahan Michael P. Donaldson Assistant General Counsel
Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
STATEMENT OF THE ISSUE
The issue in this case is whether land development regulations of Collier County are consistent with the Collier County Growth Management Plan.
PRELIMINARY STATEMENT
The three above-styled cases represent challenges by the petitioners and intervenors to land development regulations adopted by Collier County. These three cases were consolidated for purposes of final hearing with a fourth case, The Citizens Political Committee, Inc. and James K. Kessler v. Collier County and Department of Community Affairs, DOAH Case No. 90-4545GM.
The recommended order in DOAH Case No. 90-4545GM, which was issued April 13, 1992, determined that Capital Improvement Element Policy 1.5.1.E and F was not in compliance with applicable law. On August 20, 1992, the Department of Community Affairs issued a final order in DOAH Case No. 90-4545GM determining that the challenged plan amendments are in compliance with applicable law.
On July 30, 1990, The Citizens Political Committee, Inc. and James K. Kessler filed a petition with Collier County alleging that the County's Adequate Public Facilities Ordinance was inconsistent with the County's Growth Management Plan. Following the service of a response by Collier County, Citizens and Kessler filed a petition with the Department of Community Affairs on September 7, 1990. On November 26, 1990, the Department of Community Affairs conducted an informal hearing.
On December 6, 1990, the Department issued a Determination of Consistency concerning the land development regulations challenged by Citizens and Kessler. On December 20, 1990, Citizens and Kessler served a Petition for Formal Administrative Hearing to commence DOAH Case No. 90-8101GM.
On October 15, 1990, Sewell H. Corkran filed a petition with Collier County alleging that the County's Adequate Public Facilities Ordinance was inconsistent with the County's Growth Management Plan. Following the service of a response by Collier County, Mr. Corkran filed a petition with the Department of Community Affairs on November 21, 1990. On January 4, 1991, the Department of Community Affairs conducted an informal hearing. On January 22, 1991, the Department issued a Determination of Consistency approving the challenged land development regulations except in one respect.
On February 5, 1991, Mr. Corkran served a document styled, "Petitioner Requests a Hearing by the Department of Administrative Hearings." This petition commenced DOAH Case No. 91-0994GM.
On February 6, 1991, the Department of Community Affairs served a Request for Hearing concerning the land development regulations challenged by Mr.
Corkran and determined by the Department not to be in compliance. This petition commenced DOAH Case No. 91-0858GM.
On March 22, 1991, Citizens and Kessler filed a Petition for Leave to Intervene to support the positions taken by Mr. Corkran and the Department of Community Affairs. On April 2, 1991, Collier County filed a Response in Opposition. In the absence of any explicit indication in the record that the petition was granted, it is hereby granted.
The issues are set forth below. For DOAH Case No. 91-0858GM, which Mr.
Corkran and the Department of Community Affairs initiated, the issue is set forth in the Joint Prehearing Stipulation filed July 24, 1991. For DOAH Case No. 91-0994GM, which Mr. Corkran initiated, the issue is set forth in the Joint Prehearing Stipulation filed July 24, 1991. 1/ The issues raised in DOAH Case Nos. 91-0858GM and 91-0994GM involve Capital Improvement Element Policy 1.5.3.E.
For DOAH Case No. 90-8101GM, which Citizens and Mr. Kessler initiated, the issues are set forth in the Second Amended Petition for Formal Administrative Hearing filed July 23, 1992. The issues raised in DOAH Case No. 90-8101GM involve several provisions in the Capital Improvement and Future Land Use Elements.
The issues are:
Whether the APFO fails to further and implement Capital Improvement Element Policy
1.5.3.E because of the APFO's alleged failure to condition final local development orders so that they are suspended and further development stopped if, without a corresponding plan amendment, the required public facility is delayed, deferred, or removed from the state or local work program, funding for the required facility is insufficient, or construction of the required facility is not undertaken on schedule.
(91-0858GM)
Whether APFO 4.10.2.4 is inconsistent with Capital Improvement Element Policy
1.5.3.E. (91-0994GM)
Whether APFO 7.2 is inconsistent with Capital Improvement Element Goal 1, Objective 1.1, Policies 1.1.1 and 1.1.2; Objective 1.2 and Policy 1.2.1; Objective 1.4 and Policy 1.4.4; and Objective 1.5 and Policy 1.5.5; and Future Land Use Element Objective 2 and Policy 2.1; and Objective 3 and Policies 3.1.G and 3.1.L. (90-8101GM)
Whether APFO 7.4 is inconsistent with Future Land Use Element Objective 2 and Policy 2.1; and Capital Improvement Element Goal 1, Objective 1.4, and Policy 1.4.4; and Objective 1.5. (90-8101GM)
5. Whether APFO 8.3.5.1.1.5, 8.3.5.2.1.5,
8.3.5.3.1.5, 8.3.5.5.1.5, and 8.3.5.6 are
inconsistent with Capital Improvement Element Goal 1, Objectives 1.4 and 1.5, and Policies
, 1.4.4., and 1.5.5; and Future Land Use Element Objectives 2 and 3 and Policies 2.1, 3.1.G, and 3.1.L. (90-8101GM)
At the hearing, Citizens and Mr. Kessler called four witnesses and offered into evidence nine exhibits. Collier County called three witnesses and offered into evidence 11 exhibits. The Department of Community Affairs called one witness and offered into evidence seven exhibits. Mr. Corkran called one witness, himself, and offered into evidence two exhibits. All exhibits were admitted.
A transcript was filed December 11, 1991. Each party filed a proposed final order. Treatment of the proposed findings is detailed in the appendix.
FINDINGS OF FACT
The Parties
The Citizen's Political Committee, Inc. (Citizens) is a nonprofit corporation registered in the State of Florida on April 18, 1990. Citizens maintains an office in Collier County. Citizens is composed of natural persons who reside in Collier County.
James K. Kessler (Kessler) is the Chairman of Citizens. He owns property in Collier County, where he also resides. He and other members of Citizens regularly drive on the roads of Collier County.
Sewell H. Corkran (Corkran) owns real property in Collier County, where he also resides. He regularly drives on the roads of Collier County.
The Challenges
Adoption of Plan, Land Development Regulations, and Plan Amendments
On January 10, 1989, Collier County adopted its Growth Management Plan. On March 21, 1990, the County adopted land development regulations (LDR's) to implement the Growth Management Plan. The LDR's relevant to these cases are contained in the Adequate Public Facilities Ordinance (APFO), which is described in Section IV of the Findings of Fact. On May 1, 1990, five weeks after the adoption of the LDR's, the County adopted amendments to the Growth Management Plan (as amended, the Plan). Relevant portions of the Plan are described in Section III of the Findings of Fact. 2/
Citizens and Kessler: DOAH Case No. 90-8101GM
On July 30, 1990, Citizens and Kessler filed written notice with the County Commission alleging that the APFO was inconsistent with the Plan. On September 7, 1990, DCA received a petition from Citizens and Kessler requesting administrative review of the consistency between the APFO and Plan. On November 26, 1990, DCA conducted an informal hearing in Naples.
On December 6, 1990, DCA entered a Determination of Consistency and Order on Motion to Dismiss. The Determination of Consistency notes that Citizens and Kessler assert that APFO provisions are inconsistent with Sections 163.3177(10)(h) and 163.3202(2)(g), Florida Statutes, and Rule 9J-5.0055, Florida Administrative Code. Citizens and Kessler objected to the APFO provisions setting standards for the issuance of a Certificate of Public Facility Adequacy 3/ for potable water, sanitary sewer, solid waste, drainage, parks, and roads. The objection is that the APFO allows development where impacts will occur prior to 1994 if construction of the required facility is in the five- year schedule of capital improvements prior to October 1, 1994.
The Determination of Consistency notes without
discussion that the County argued that compliance with the cited statutes and rules is irrelevant because the sole issue is limited to the issue of consistency with the Plan.
Concluding that Citizens and Kessler have standing as substantially affected persons, the Determination of Consistency rejects their challenge to the APFO because the LDR is:
not in conflict with the Growth Management Plan because [it is] specifically authorized by the Plan. [The] ordinance. . . take[s] action in the direction of realizing goals, objectives and policies of the [Plan], and implement[s] significant portions of the plan. . . . [T]he APFO implements the concurrency management program specified in the plan.
On December 20, 1990, Citizens and Kessler served a Petition for Formal Administrative Hearing, which commenced DOAH Case No. 90-8101GM. They alleged that 8.3.5 of the APFO is inconsistent with the Plan and inconsistent with the requirements of Sections 163.3177(10)(h) and 163.3202(g), Florida Statutes, and Rule 9J-5.0055, Florida Administrative Code. In particular, the petition alleges that 8.3.5.1.1.5 (potable water), 8.3.5.2.1.5 (sanitary sewer), 8.3.5.3.1.5 (solid waste), and 8.3.5.5.1.5 (parks and recreation) permit development whose impacts occur prior to the availability of required public facilities. The objection is that, prior to October, 1994, public facilities are deemed available if construction of the required public facility is in the five-year schedule of capital improvements prior to October 1, 1994.
An interlocutory order limited the issues that Citizens and Kessler could raise to questions of consistency between provisions of the APFO and the Plan. Consistent with the Department of Community Affairs' interlocutory order, the Conclusions of Law explain the lack of jurisdiction in the subject administrative proceeding over claims that the LDR's fail to comply with other requirements of law.
Citizens and Kessler filed an Amended Petition for Formal Administrative Hearing on March 1, 1991. Focusing upon the above-cited sections of the APFO, the Amended Petition alleges that the APFO is inconsistent with Capital Improvement Element (CIE) Goal 1, Objective 1.2, Objective 1.4, and Objective 1.5; and Future Land Use Element (FLUE) Objective 2, Objective 3, Policy 3.1.G, and Policy 3.1.L.
At the hearing, over the objection of the County, Citizens and Kessler were granted leave to file, on July 23, 1991, a Second Amended Petition for Formal Administrative Hearing. They alleged that the APFO is deficient in three respects: the determination of demand, the determination of supply or capacity, and the failure to prevent the issuance of Certificates of Public Facility Adequacy that authorize demand that will exceed capacity and violate adopted level of service [LOS] standards.
The Second Amended Petition alleges that the three above-cited defects in the APFO appear in three sections of the APFO. The Second Amended Petition alleges that each of these sections is inconsistent with various provisions of the Plan.
The Second Amended Petition alleges that APFO 7.2, which involves the Annual Update and Inventory Report, 4/ overstates public facility capacity and understates public facility demand. APFO 7.2 thus is allegedly inconsistent with CIE Goal 1; Objective 1.1 and Policy 1.1.1; Objective 1.2 and Policies
and 1.2.1; Objective 1.4 and Policy 1.4.4; Objective 1.5 and Policy 1.5.5; and FLUE Objective 2 and Policy 2.1; Objective 3 and Policies 3.1.G and 3.1.L.
The Second Amended Petition alleges that APFO 7.4 establishes Areas of Significant Influence 5/ for roads that are deficient or potentially deficient, based on traffic counts only. Allegedly lacking standards for setting boundaries, the Area of Significant Influence allegedly expires one year after it is established regardless whether the deficiency has been eliminated. APFO
7.4 thus is allegedly inconsistent with FLUE Objective 2 and Policy 2.1; CIE Goal 1; Objective 1.4 and Policy 1.4.4; and Objective 1.5.
The Second Amended Petition alleges that APFO 8.3.5, which sets the standards for review of applications for Certificates of Public Facility Adequacy, does not require any assessment of actual facility capacity or of capacity required to meet the needs of previously issued Certificates of Public Facility Adequacy. Sections 8.3.5.1.1.5 (potable water), 8.3.5.2.1.5 (sanitary sewer), 8.3.5.3.1.5 (solid waste), and 8.3.5.5.1.5 (parks and recreation) allegedly allow development whose impacts occur prior to the availability of required public facilities. The objection is that, prior to October, 1994, public facilities are deemed available if construction of the required public facilities is in the schedule of capital improvements before October 1, 1994. Section 8.3.5.6 allegedly requires that certificates be issued for road facilities for any development outside a designated Area of Significant Influence without regard to the demand that the development will generate and the actual available capacity of affected roads. The APFO thus is allegedly inconsistent with CIE Goal 1; Objectives 1.4 and 1.5; Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objective 2 and Policy 2.1; and Objective 3 and Policies
3.1.G and 3.1.L.
Corkran, DCA, Citizens, and Kessler: DOAH Case Nos. 91-0858GM and 91-0994GM
On October 15, 1990, Corkran filed written notice with the County Commission alleging that the APFO is inconsistent with the Plan. On November 21, 1990, DCA received a petition filed by Corkran requesting administrative review of the consistency of the APFO and the Plan. DCA conducted an informal hearing in Naples on January 4, 1991.
On January 22, 1991, DCA issued a Determination of Consistency and Standing of Petitioner. The Determination of Consistency finds that Corkran owns property and resides in Collier County and that he regularly drives the roads of the County. The Determination of Consistency concludes that Corkran has standing as a substantially affected person.
The Determination of Consistency notes that Corkran asserts that APFO
and 4.10.2.4 are inconsistent with CIE Policy 1.5.3.D and 1.5.3.E. 6/
The Determination of Consistency states that Corkran alleges three areas of inconsistency between APFO 4.10.2.4 and CIE Policy 1.5.3.E. 7/ First, APFO 4.10.2.4 allegedly does not require that construction of the required facility be included in the State's five-year work program or County's five-year schedule of capital improvements. The APFO provision allegedly requires only
that the required capital road improvement be included in the five-year schedule and does not ensure that the facility will be available when the impact of development occurs.
Corkran's second allegation is that APFO 4.10.2.4 does not apply to impacts of development occurring prior to October 1, 1994, as CIE Policy 1.5.3.E does.
Corkran's third allegation is that APFO 4.10.2.4 does not provide that any development order issued pursuant to a concurrency finding be conditional. Corkran asserts that the permit should be suspended and further development stopped if, without a Plan amendment, the required facility is delayed, deferred or removed from the State's five-year work program or County's five-year schedule of capital improvements; annual funding is insufficient to maintain the five-year schedule of capital improvements; or construction of the required facility is not undertaken in accordance with the State's five year work program or County's five-year schedule of capital improvements. Corkran alleges that this omission allows development to proceed although the required road facilities are no longer scheduled for construction by the State or County.
The Determination of Consistency concludes that the APFO is consistent with CIE Policy 1.5.3.D and E with one exception. The exception involves the requirement in Policy 1.5.3.E that a development order must be conditional when it is issued pursuant to a concurrency finding based on a capital improvement in the five-year schedule. The APFO is allegedly missing a condition that would suspend the development order and stop further development if construction of the required public facility, on which the development order relied, were delayed or eliminated.
The Determination of Consistency notes that APFO 8.3.1.1 imposes the necessary conditions upon all development orders except "final development orders." The Determination of Consistency concludes that the exception is inconsistent with CIE Policy 1.5.3.E, which requires that the condition be attached to all development orders. The Determination of Consistency adds that "the APFO" is inconsistent with CIE Policy 1.5.3.E because of the APFO's failure to suspend development orders and stop further development if construction of a required public facility is delayed or eliminated after a concurrency determination has been made in reliance upon that public facility.
The Determination of Consistency determines:
Because the APFO provisions do not include significant requirements of CIE Policy 1.5.3.E, it [sic] does not further or implement the policy . . ..
On February 6, 1991, Corkran and DCA filed a Request for Hearing. The Request for Hearing recites that, on January 22, 1991, DCA issued a Determination of Consistency and Standing of Petitioner, which determined that the APFO is consistent with the Plan in all areas challenged by Corkran except CIE Policy 1.5.3.E. The request for hearing demands a final order confirming DCA's determination of inconsistency and recommending that the Administration Commission impose sanctions if Collier County fails to amend the APFO to eliminate the inconsistency.
On February 7, 1991, Corkran filed a document styled, "Petitioner Requests a Hearing by the Department of Administrative Hearings," as well as a separate "Petitioner's Fact Sheet." Corkran alleged that APFO 4.10.2.3 is inconsistent with CIE Policy 1.5.3.D and APFO 4.10.2.4 is inconsistent with CIE Policy 1.5.3.E.
On March 29, 1991, Corkran filed an Amended Petition re Standing and Challenge to LDR of APFO No. 90-24. The Amended Petition restates the two bases of inconsistency set forth in the preceding paragraph.
Citizens and Kessler subsequently intervened on behalf of Corkran and DCA in DOAH Case Nos. 91-0858GM and 91- 0994GM.
The Plan
CIE Goal 1 is:
To provide adequate public facilities concurrent with new development in order to achieve and maintain or exceed adopted standards for levels of service.
CIE Objective 1.1 states:
Identify and define types of public facilities for which the County is responsible, establish standards for levels of service for each such public facility, and determine what quantity of additional public facilities are needed in order to achieve and maintain the standards.
CIE Policy 1.1.1 provides:
The County shall establish standards for levels of service for three categories of public facilities, as follows:
Category A public facilities are facilities which appear in other elements of this comprehensive plan, including arterial and collector roads, surface water management systems, potable water systems, sanitary sewer systems, solid waste disposal facilities, and parks and recreation facilities. The standards for levels of service of Category A County provided public facilities shall apply to development orders issued by the County and to the County's annual budget, and to the appropriate individual element of this Comprehensive Plan. The standards for levels of service of Category A facilities which are not County provided shall apply to development orders issued by the County and to the appropriate
individual element of this Comprehensive Plan, but shall not apply to the County's annual budget.
* * *
CIE Policy 1.1.2 states:
The quantity of public facilities that is needed to eliminate existing deficiencies and to meet the needs of future growth shall be determined for each public facility by the following calculation:
Q = (S x D) - I
Where Q is the quantity of public facility needed, S is the standard for level of service, D is the demand, such as the population, and I is the inventory of existing facilities.
The calculation will be used for existing demand in order to determine existing deficiencies. The calculation will be used for projected demand in order to determine needs of future growth. The estimates of projected demand will account for demand that is likely to occur from previously issued development orders as well as future growth.
There are three circumstances in which the standards for levels of service are not the exclusive determinant of need for a public facility:
Calculated needs for public facilities in coastal high hazard areas are subject to all limits and conditions in the Coastal Management and Future Land Use Elements of this Growth Management Plan.
Replacement of obsolete or worn out facilities, and repair, remodeling an renovation, will be determined by the Board of County Commissioners upon the recommendation of the County Manager.
Public facilities that provide levels of service in excess of the standards adopted in this Growth Management Plan may be constructed or acquired at any time as long as the following conditions are met:
the facility does not make financially unfeasible any public facility of the same type that is needed to achieve or maintain the standards for levels of service adopted in this Growth Management Plan, and
the facility does not contradict, limit or substantially change the goals, objectives and policies of any element of this Growth Management Plan.
Any public facility that is determined to be needed as a result of any of the three factors listed in Section B of this Policy shall be included in the regular Schedule of Capital Improvements contained in the Capital Improvements Element. All capital improvement projects for such public facilities shall be approved in the same manner as the projects that are identified according to the quantitative analysis described in Section A of this policy.
CIE Policy 1.1.5.A1 sets an LOS standard E on four named County arterials and collector roads. The remaining County arterial and collector roads are LOS standard D, although such road segments
may operate at Level of Service "E" for a period not to exceed two fiscal years following the determination of Level of Service "E" in order to provide the County with time to restore Level of Service "D" by making appropriate improvements. Development orders may be issued during the two year period to the extent their issuance is consistent with Policies 1.5.3 and 1.5.4 of this Element.
CIE Policy 1.1.5.A1.2. The LOS standards for State and Federal roads ranges from C to E, and no two-year "grace period" applies to such roads.
CIE Objective 1.2 is:
Provide public facilities in order to maintain adopted level of service standards that are within the ability of the County to fund, or within the County's authority to require others to provide. Existing facility deficiencies measured against the adopted level of service standards will be eliminated with revenues generated by ad valorem taxes and intergovernmental revenues received based on economic activity. Future developments will bear a proportionate cost of facility improvements necessitated by growth. Future development's payments may take the form of, but are not limited to, voluntary contributions for the benefit of any public facility, impact fees, dedications of land, provision of public facilities, and future payments of user fees, special assessments and taxes.
CIE Policy 1.2.1 provides:
The estimated capital expenditures for all needed public facilities shall not exceed conservative estimates of revenues from sources that are available to the County pursuant to current law, and which have not been rejected by referendum, if a referendum is required to enact a source of revenue.
CIE Objective 1.4 states:
The County shall coordinate its land use planning and decisions with its plans for public facility capital improvements by providing needed capital improvements for replacement of obsolete or worn out facilities, eliminating existing deficiencies, and future development and redevelopment caused by previously issued and new development orders.
CIE Policy 1.4.4 provides:
The County shall determine, prior to the issuance of building permits, whether or not there is sufficient capacity of Category A public facilities to meet the standards for levels of service for existing population and the proposed development. No building permit shall be issued by the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto unless the levels of service for the resulting development will achieve the standards in Policy 1.1.5, Category A, and the requirements for Concurrency Management as outlined in the policies within Objectives 1.5 of this element are met.
CIE Objective 1.5 is:
In order to coordinate land use decisions and facility planning by the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto, the County shall adopt a "Concurrency Management System" Ordinance for the scheduling, funding and timely construction of Category A public facilities concurrent with, or prior to development in order to achieve and maintain adopted standards for levels of service, and
to exceed the adopted standards when possible.
CIE Policy 1.5.1 provides:
Beginning with the effective date of Plan Implementation through September 30, 1994, the concurrency requirement for the Potable Water, Sanitary Sewer, Drainage, Solid Waste and Recreation and Open Space Level of Service Standards, of this Growth Management Plan would be met if any of the following conditions of an established Concurrency Management System are met:
The required facilities are in place at the time a building permit is issued, or a building permit is issued subject to the condition that the necessary facilities will be in place when the impact of the development occurs.
The required facilities are under construction at the time a building permit is issued.
The required facilities are the subject of a binding contract executed for the construction of those facilities at the time a building permit is issued.
The construction of required facilities has been included in the County's adopted budget at the time a building permit is issued even though the facilities are not yet the subject of a binding contract for their construction.
The construction of facilities required to accommodate the impact of development occurring before October 1, 1994 is scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994. The Schedule of Capital Improvements shall be based on a realistic, financially feasible program of funding from existing revenue sources and shall be adopted as a part of this Growth Management Plan.
A plan amendment is required to eliminate, defer or delay construction of any Category A facility in the Schedule of Capital Improvements which is needed to maintain the adopted level of service standard. Any development order issued pursuant to a concurrency finding under this section is expressly conditional so that the permit shall be suspended and no further
development shall be carried out in the event any of the following occur without a corresponding plan amendment:
The required facilities are delayed, deferred, or removed from the adopted Schedule of Capital Improvements.
Annual funding is insufficient to maintain the Schedule of Capital Improvements.
Construction of the required facilities is not undertaken in accordance with the adopted Schedule of Capital Improvements.
The construction of required facilities scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994 will not be delayed, deferred or removed from the Capital Improvement Element if the facilities have been relied upon for issuance of a development order.
CIE Policy 1.5.3 provides:
Beginning with the effective date of Plan Implementation through September 30, 1994, the concurrency requirement of the Traffic Circulation Level of Service standard of this Growth Management Plan would be met if any of the following conditions of an established Concurrency Management System are met:
The required facilities are in place at the time a building permit is issued, or a building permit is issued subject to the condition that the necessary facilities will be in place when the impacts of the development occur.
The required facilities are under construction at the time a building permit is issued.
The required facilities are the subject of a binding contract executed for the construction of these facilities at the time a building permit is issued.
The construction of required facilities has been included in the State or local Government's adopted budget at the time a building permit is issued even though the facilities are not yet the subject of a binding contract for their construction, provided that the level of service (LOS) of
any road does not fall beyond the next lower LOS below the adopted standard (i.e., LOS standard is "D" peak hour, peak season and service does not fall below "E" peak hour, peak season).
The construction of the facility required to accommodate the impact of development occurring before October 1, 1994 is included in the State's Five (5) Year Work Program or the County's current five (5) year Capital Improvement Schedule adopted as a part of this Growth Management Plan prior to October 1, 1994. A plan amendment is required to eliminate, defer or delay construction of any road project in the Schedule of Capital Improvements which is needed to maintain the adopted level of service standard. Any development order issued pursuant to a concurrency finding under this section is expressly conditional so that the permit shall be suspended and no further development shall be carried out in the event any of the following occur without a corresponding plan amendment:
The required facility is delayed, deferred, or removed from the State's Five
(5) Year Work Program or the Schedule of Capital Improvements.
Annual funding is insufficient to maintain the Schedule of Capital Improvements.
Construction of the required facility or facilities is not undertaken in accordance with the County's adopted Schedule of Capital Improvements or the State's Five
(5) Year Work Program.
The construction of required facilities scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994 will not be delayed, deferred or removed from the Capital Improvement Element if the facilities have been relied upon for issuance of a development order.
There are differences between CIE Policy 1.5.1, which governs all non-road public facilities for which concurrency is required, and CIE Policy 1.5.3, which governs roads. CIE Policy 1.5.3 permits reliance upon State and County annual budgets and five year schedules. CIE Policy 1.5.1 permits reliance only on County annual budgets and five-year schedules. Also, if the County issues building permits in reliance on scheduled capital projects for non-road public facilities, the capital improvement schedule must be based on financially feasible funding sources--a requirement not found in CIE Policy
1.5.3. Last, CIE Policy 1.5.3.D contains special provisions for road LOS standards when the County issues building permits in reliance upon road projects in the current budget.
CIE Policies 1.5.1 and 1.5.3 involve concurrency as it is to be applied through September 30, 1994. Following that date, permanent concurrency requirements become operative. For non-road public facilities, the County may no longer rely on scheduled public facilities when issuing building permits. However, for road public facilities, the County may continue to rely on scheduled public facilities, although new requirements are added. 8/
As is the case with CIE Policy 1.5.3, CIE Policy 1.5.4 requires a Plan amendment to delay or eliminate a scheduled public facility needed to maintain an adopted LOS standard. More important, CIE Policy 1.5.4 conditions development permits issued in reliance upon scheduled public facilities so that the permit is suspended and further development stopped if the required public facility is delayed or eliminated without a Plan amendment.
Although CIE Policy 1.5.4 is somewhat more restrictive than CIE Policy 1.5.3, the increased restrictiveness does not approach that resulting from the effect of CIE Policy 1.5.2, which prohibits the issuance of building permits in reliance upon scheduled public facilities after September 30, 1994.
CIE Policy 1.5.5 states:
On or before the time mandated for the adoption of land development regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto, the County shall implement, through the adoption of an ordinance, a Concurrency Management System and a monitoring program.
FLUE Objective 2 is:
In order to ensure the coordination of land use with the availability of public facilities, the following standards for land development shall be required by the time mandated for the adoption of Land Development Regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto. No local Development Order shall be issued unless required public facilities meet the requirements of the Concurrency Management System contained in the Capital Improvement Element. A level of service ordinance will be prepared as part of the land development regulations that will provide guidelines to implement level of service standards. "Local Development Order" shall be defined as any approval by the County having the effect of permitting development.
FLUE Policy 2.1 states:
Level of Service Standard--Roads: Adequate capacity shall be available as defined by the standards in the Capital Improvement Element. As part of the development of a Level of Service ordinance and implementing program, a
network of "envelopes" shall be developed around major road segments which represent geographic areas where development may impact that road. Any regulatory measures resulting from an insufficient Level of Service for a roadway shall be applied throughout an entire "envelope." The Level of Service standards are based on peak season hour volume.
FLUE Objective 3 provides:
In order to ensure protection of natural and historic resources, ensure the availability of suitable land for utility facilities, ensure consistency of development with level of service standards, promote compatible land uses within the airport noise zone and generally provide for management of growth in an efficient and effective manner, the following regulatory strategy shall be followed:
--Land Development Regulations to implement this Growth Management Plan shall be adopted and codified and the development review process shall be evaluated and improved by the time mandated for the adoption of Land Development Regulations pursuant to Chapter 163.3202, F.S., including any amendments thereto. These Regulations shall encourage creative solutions which address the unique situations of Collier County.
FLUE Policy 3.1 states, in part:
Adopt Land Development Regulations that contain provisions to implement this Growth Management Plan and which at a minimum:
* * *
G. Provide that no "Local Development Order" be issued unless required public facilities meet the requirements of the Concurrency Management System contained in the Capital Improvement Element. "Local Development Order" shall be defined as any approval by the County having the effect of permitting development to occur. The Land Development Regulation which implements the Concurrency Management System shall include provision for review of existing and committed land use at time of application for rezoning, definition of and prohibition of issuance of a "local development order" that would be inconsistent with the Concurrency
Management System and establishment of a time limit on zoning approvals, requiring that if no development has occurred within a defined period of time after approval of a zoning, the zoning would revert to a lower classification.
* * *
L. In order to ensure that adequate public facilities are available concurrent with service demands generated by new growth and development in accordance with the requirements of the Local Government Comprehensive Planning and Land Development Regulation Act, Section 163.3161 et seq., Florida Statutes (1987), it shall be the policy of Collier County to achieve "concurrency" through a Concurrency Management System adopted as part of this Plan in the Capital Improvement Element. In addition, as the second element of the County's concurrency program, the County shall, as a part of the land development regulations to be prepared and adopted within one year of the submittal date of this Plan, implement a program to bring planned, permitted and zoned development capacity into alignment with the capacity of existing, programmed and planned capital improvements. The program of aligning development capacity with capital improvements capacity shall provide for the recognition and protection of vested property rights and shall provide individual property owners with a reasonable opportunity to take advantage of existing investment backed development expectations.
The Land Development Regulations
The APFO, which is Ordinance No. 90-24, is intended to establish a concurrency management system and implement the Plan. The ordinance states that the purpose of the APFO is to:
establish. . . a management and monitoring system to evaluate and coordinate the timing and provision of the necessary Public Facilities to service development, and . . . establish . . . a regulatory program that ensures that each Public Facility is available to serve development concurrent with when the impacts of development occur on the Public Facilities.
APFO 3.2.
The APFO applies to
all development in the total unincorporated area of Collier County, and to all public facilities owned by Collier County in the incorporated or unincorporated areas of Collier County, and to all privately-owned facilities where the level of service has been established by the County.
APFO 2.3.
"Development" is defined as "development" within the meaning of Section 380.04. APFO 4.13. The statutory definition includes:
the carrying out of any building activity
..., the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.
The process by which development orders are issued is detailed. The APFO defines four types of development orders. To varying degrees, these defined terms are used in the APFO regulatory program, which is intended to
ensure that no development orders are issued unless adequate Public Facilities are available to serve the proposed development, or that the development order is conditioned on the availability of Public Facilities to serve the development concurrent with when the impacts of development occur on the Public Facilities.
APFO 8.1.
A "development order" (DO), which is the broadest term, is defined to include
any order, permit, determination, or action granting, denying, or granting with conditions an application for any final local development order, building permit, temporary use permit, . . . approved development of regional impact (DRI), zoning ordinance amendment, comprehensive plan amendment, ... coastal construction control line variance,
. . . site development plan approval, subdivision approval (including plats, plans, variances, and amendments), rezoning, PUD amendment, certification, ... variance, or any other official action of Collier County having the effect of permitting development as defined in this Ordinance.
APFO 4.14.
A "final development order" comprises two types of development orders: a "final local development order" and a "final DRI development order." APFO 4.15.
A "final local development order" (FLDO) "means any valid, unexpired building permit issued by the County." APFO 4.17.
The APFO describes the process by which the County will correlate the availability of infrastructure to the impacts of nonexempt development. 9/ The determination that public facilities for which concurrency is required will be available concurrent with the impact of nonexempt development results in the issuance of a Certificate of Public Facility Adequacy (Certificate).
The issuance of a Certificate is "proof of adequate Public Facilities to serve the development approved in the development order, subject to the conditions in the development order." APFO 8.3.2.5. APFO 8.3.5 adds: "Before issuance of a Certificate . . ., the application shall fulfill the standards for each Public Facility component (Potable Water, Sanitary Sewer, Solid Waste, Drainage, Parks and Roads)." These are the six public facilities for which concurrency is required (Public Facilities).
APFO 8.3.1.1 provides that a Certificate
shall be obtained at the filing for the earliest or next to occur of final subdivision plat, final site development plan or building permit; provided, however, any development orders except a final local development order may be approved or issued provided they are expressly conditioned on the issuance of a Certificate prior to building permit approval and provided the owner and applicant proceed at their own risk and expressly waive and release the County in writing from any and all future claims of vested rights and equitable estoppel resulting from such conditional approval or actions relying thereon.
The APFO provides that a DO, but not an FLDO, may be conditional. A DO is defined to include an "order [or] permit . . . granting . . . an application for any [FLDO,] building permit, . . . or any other official action of Collier County having the effect of permitting development." An FLDO is "any valid, unexpired building permit."
Some confusion arises because the APFO includes "building permit" in the definition of a DO and an FLDO. The definition of an FLDO is specifically limited to valid, unexpired building permits. Such a building permit is clearly an FLDO and, as an FLDO, may not be issued conditionally.
The DO includes building permits that are not valid, or at least not yet valid due to their conditional nature. For instance, a building permit could be issued conditionally, so that no construction could commence until the condition, such as obtaining a Certificate, were satisfied. Obtaining a conditional building permit could possibly enable a landowner to demonstrate to
the County or a prospective lender compliance with all other requirements, such as local building codes and setback requirements, and development could commence as soon as a Certificate were obtained.
In general, then, a conditional building permit is a DO. But a final building permit that authorizes immediate development is an FLDO. The final building permit, or FLDO, is "valid" in the sense that, among other things, it is unconditional. As used through the remainder of this final order, FLDO shall mean the same thing as a final, or unconditional, building permit.
As a whole, the APFO therefore properly predicates the issuing of an FLDO (i.e., final building permit) upon the obtaining of a Certificate. Without a Certificate, a landowner may not secure a building permit that authorizes immediate construction. APFO 8.3.2.2 provides in part: "A building permit, final subdivision plat or final site development plan shall receive final approval only to the extent to which the proposed development receives a Certificate "
Although an FLDO cannot be issued without a Certificate, a Certificate may be issued, under the APFO, based on Public Facilities not available when the impact of the permitted development occurs.
Non-road Public Facilities may be relied upon for the issuance of a Certificate if, when the building permit is issued, the Public Facilities are under construction, subject to a binding contract for their construction, included in the County's budget, or included in the County's five-year schedule of capital improvements. 10/
As noted in the APFO sections cited in the preceding footnote, the building permit is conditional if it is issued in reliance upon compliance with adopted LOS standards through the later construction of non-road Public Facilities included in the County's five-year schedule of capital improvements. The condition is that the conditional building permit, or DO, is suspended and all development is stopped if, without a Plan amendment, the required non-road Public Facility projects are not undertaken when scheduled. 11/
The circumstances under which a Certificate for the road component may be issued are somewhat more involved. Due to the interrelationship of the regulatory and monitoring programs, especially for roads, the operation of the road monitoring program is critical to the operation of the road regulatory program.
In determining whether a road segment is deficient or potentially deficient, 12/ the APFO allows the County to rely upon road public facilities that, at the time of the preparation of the Annual Update and Inventory Report, 13/ are under construction, subject to a binding contract for their construction, included in the budget of the County or State, or included in the five-year schedule of capital improvements of the County or State. Unlike the situation with respect to development orders issued in reliance upon scheduled non-road public facilities, the development order is not conditional even though it is issued in reliance upon the inclusion of the required road public facility in the County or State five-year schedule.
DCA argues that the APFO fails to provide for the suspension of the FLDO if, with respect to a required road public facility upon which the Certificate was issued, the project is delayed or eliminated without an accompanying plan amendment. Under the APFO, the FLDO is the last hurdle for the landowner to
clear in the local development-approval process. The FLDO is unconditional, and subsequent events cannot divest the landowner of its rights under a FLDO. The duration of a Certificate 14/ is irrelevant to the duration of an FLDO, whose duration is not specified in the APFO 15/.
Given the unconditional nature of the FLDO, it is necessary to identify the circumstances under which the County may issue a Certificate. In fact, a Certificate is available under a variety of circumstances in which the impact of development will precede the availability of required road public facilities. The entitlement to a Certificate requires a detailed understanding of the public facility monitoring program in the APFO, especially as it concerns roads.
In general, the APFO monitoring program measures the remaining capacity of Public Facilities and the impact of proposed development on those Public Facilities. Information concerning remaining capacity and projected infrastructure demands associated with a proposed development allows the County to determine the availability of Public Facilities before and after the impact of a proposed development.
A key component of the APFO monitoring program is the Annual Update and Inventory Report (AUIR). The AUIR is described as follows:
By May 1 of each year, the Growth Management Director shall complete an [AUIR]. The AUIR shall determine the existing conditions of all Capital Potable Water, Capital Sanitary Sewer, Capital Solid Waste, Capital Drainage, Capital Park, and Capital Road Public Facilities, determine and summarize the available capacity of these Capital Improvements (Public Facilities) based on their LOS [Level of Service], and forecast the capacity of existing and planned Public Facilities identified in the Five (5) Year Capital Improvement Schedule for each of the five (5) succeeding years, and ten (10) succeeding years. The forecasts shall be based on the most recently updated schedule of Capital Improvements (Public Facilities) for each Public Facility. The AUIR shall be based on the most recent Bureau of Economic and Business Research (BEBR) population projections, updated Public Facility inventories, updated unit costs, and analysis of traffic count data.
The findings of the AUIR shall form the basis for the Annual Update to the CIE, any proposed projects to be included in the County's Tentative Annual Budget, the determination of any Area of Significant Influence (ASI) and the review of and issuance of development orders during the next year.
APFO 7.2.
Based on the findings of the AUIR, the Growth Management Director is required, by May 1 each year, to report to the County Commissioners the existence of any deficiencies or potential deficiencies in public facilities for which concurrency is required. The Director must also recommend remedial actions, such as the establishment of Areas of Significant Influence, additions of Public Facilities to the CIE, and deferral of the issuance of development orders. These remedial actions would be effective until the County, by Plan amendment, lowered the LOS standard below which the facility was operating; included necessary public facility projects in the adopted annual budget and annual CIE update; or approved new or increased revenue sources for needed public facility projects. APFO 7.2.1.
By July 15 each year, the Growth Management Director must propose to the County Commissioners the annual update to the CIE in conjunction with the tentative annual budget. The tentative annual budget, which is to be adopted by October 1 each year, "will include" the public facilities needed to maintain the adopted LOS standards. APFO 7.3.
There is a special process for determining concurrency for roads.
The Growth Management Director determines if there are "deficient or potentially deficient road segments." APFO 7.4.1.
Pursuant to APFO 4.10.1, a "deficient road segment" is limited to certain County or State arterial or collector segments. A road segment is deficient if it is operating below its adopted LOS standard, except that an LOS D road segment operating at LOS E, but not worse, must have done so for at least two years before it is treated as deficient.
Pursuant to APFO 4.10.2, prior to October 1, 1994, Collier County shall, in determining if a road segment is deficient, consider:
any Capital Road Improvement under construction or that will be under construction during the review period;
any Capital Road Improvement that is the subject of a binding executed contract which provides for the commencement of construction during the review period;
any Capital Road Improvement that is included in the State or Collier County adopted budget; 16/ and
the construction of the required Capital Road Improvement is included in the State's Five (5) Year Work Program or the County's current five (5) year Capital Improvement Schedule adopted as part of the Growth Management Plan prior to October 1, 1994. 17/
Pursuant to APFO 4.10.3, as of October 1, 1994, Collier County shall, in determining if a road segment is deficient, consider the factors set forth in the preceding paragraph. However, additional requirements are added to the fourth factor, which concerns projects relied upon in the five- year schedule of capital projects. Set forth in APFO 4.10.3.4, these additional requirements are:
The Board of County Commissioners has made an express finding, after a public hearing, that the current five (5) year capital improvement schedule is based on a realistic, financially feasible program of funding from existing revenue sources; and
The . . . LOS on all roads serving the development will not, at any time, operate below peak hour, peak season LOS "E"; and
The . . . LOS on any road serving the development will not operate at peak hour, peak season in LOS "E" for a period of more than two (2) years except where LOS "E" is the LOS established in the Growth Management Plan for a particular year.
Pursuant to APFO 4.32.1 and 4.32.2, a "potentially deficient road segment" is also limited to certain County or State collectors or arterials. If the adopted LOS standard of the segment is C, D, or E, it is potentially deficient if it is operating at its adopted LOS or, in the case of a segment whose adopted LOS standard is D, if it has been operating at LOS E for less than two years (so as not yet to be a "deficient" road segment).
APFO 4.32.3 allows the County to consider, in determining whether a road segment is potentially deficient, the same four factors that apply to the consideration of a "deficient road segment." The same three requirements that are added, as of October 1, 1994, to the consideration of a "deficient road segment" also apply to the determination of a "potentially deficient road segment," as of October 1, 1994.
Once having identified a deficient or potentially deficient road segment, the Growth Management Director must do two things. First, the Director must propose an Area of Significant Influence (ASI) around the deficient or potentially deficient road segment, unless the segment is "projected not to exceed its adopted LOS within the five (5) year Capital Improvement Schedule in the CIE." APFO 7.4.1. Second, the Director must identify any "Annual Residual Capacity Trips" to be allotted to applicants requesting Certificates for proposed developments within any proposed ASI covering deficient or potentially deficient road segments. APFO 7.4.1.
APFO 7.4.2 sets the standards for establishing the boundaries of an ASI as follows:
The boundaries for the ASI shall be based upon accepted transportation planning practices, and shall include those areas surrounding a deficient or potentially deficient road segment. The Growth Management Director shall complete a detailed conditions analysis of the deficient or
potentially deficient road segment within each proposed ASI boundary prior to proposing the boundaries of the ASI. The analysis shall take into consideration characteristics of the road segment (such as traffic control, signal spacing, timing, and phasing) using procedures documented in the 1985 Highway Capacity Manual (or its current edition). The Annual Residual Capacity Trips for the proposed ASI covering the potentially deficient road segment shall be based upon up to hundred percent (100%) of the potentially deficient road segment's remaining capacity, measured in peak hour trips. Thirty percent (30%) of the potentially deficient road segment's remaining capacity shall be reserved for only those land uses which generate one (1) peak hour trip per day or less, based on the most recent ITE Trip Generation Manual.
After receiving the proposed boundaries of the ASI and any proposed Annual Residual Capacity Trips allotments for the ASI from the Growth Management Director, the County Commissioners, by June 1 of each year, shall conduct a public hearing. The County Commissioners must approve the ASI boundaries and Annual Residual Capacity Trips allotments, with or without modifications, or:
determine that competent substantial evidence has been placed on the record to show that the road segment is not potentially deficient and determine that the establishment of an ASI is not necessary to ensure that development orders are served by adequate road Public Facilities.
APFO 7.4.3.
The approved ASI boundaries and Annual Residual Capacity Trip allotments for each ASI become effective June 1 each year, "if additional road improvements are not added to the [CIE] at that time." APFO 7.4.3. The term of each ASI and Annual Residual Capacity Trip allotment is one year, under APFO 7.4.5 and 7.4.6. 18/
The ASI may be dissolved under the following circumstances: [i]f the additional needed road improvements
identified in the AUIR are added to the CIE or funds are available for, and committed for construction of, the needed road improvements to eliminate the classification of a road as a deficient or potentially deficient road segment, then the ... ASI established for that deficient or potentially deficient road segment shall be dissolved in the same manner in which it was established.
APFO 7.4.7.
Returning to the APFO regulatory program, the road component of the Certificate may be issued only if the proposed development is outside an ASI or, if within an ASI covering a potentially deficient road segment, the proposed development will not cause a potentially deficient road segment to become a deficient road segment. 19/ As noted above, however, road Public Facilities included in the five-year schedule of capital improvements are treated as though they are already available when determining if road segments are deficient or potentially deficient.
Despite authorizing concurrency determinations based upon capital road projects to be built perhaps years after the impact of development takes place, the APFO fails to require that the FLDO (i.e., final building permit) bear a condition when it is issued under these circumstances. If the post- development construction of road Public Facilities on which the FLDO relied when issued is later delayed or eliminated, nothing in the APFO provides for the suspension of further development under the FLDO.
This omission is not seriously contested by the County, which argues instead that CIE Policy 1.5.3.E is self- implementing and its requirement of a condition providing for the possible suspension of the building permit needs no counterpart in the APFO. 20/ The fact is that the APFO authorizes the issuance of FLDO's (i.e., final building permits) based on Certificates that have been issued in reliance upon road Public Facilities whose availability will follow the impact of the proposed development by perhaps years. And the APFO fails to impose a condition upon such FLDO's that, in the absence of a Plan amendment, if the scheduled road Public Facilities are delayed or eliminated, then further development must cease.
Ultimate Facts
Citizens and Kessler: DOAH Case No. 90-8101GM
APFO 7.2
Citizens and Kessler failed to prove to the exclusion of fair debate that APFO 7.2 is inconsistent with any of the following Plan provisions: CIE Goal 1, Objective 1.1, Policies 1.1.1 and 1.1.2; Objective 1.2, Policy 1.2.1; Objective 1.4, Policy 1.4.4; Objective 1.5 and Policy 1.5.5; FLUE Objective 2 and Policy 2.1; and Objective 3 and Policy 3.1.G and 3.1.L.
APFO 7.2 establishes the AUIR as part of the monitoring program involving all Public Facilities. The inventory of Public Facilities summarizes their available capacity and forecasts their projected capacity based on scheduled capital improvements, population projections, updated construction costs, and updated traffic counts.
APFO 7.2.1 directs the Growth Management Director to identify deficient or potentially deficient Public Facilities and recommend remedial actions such as the establishment of ASI's, addition of capital projects, and deferral of development orders in affected areas until the LOS standard is lowered, required public facilities are added, and/or new revenue sources are approved.
The cited Plan provisions generally involve the identifying and supplying of adequate Public Facilities. CIE Goal 1 and Objective 1.5 refer generally to the availability of Public Facilities concurrent with the impact of development. The relevant FLUE provisions--namely, FLUE Objective 2 and Policies 3.1.G and 3.1.L--defer enforceable concurrency provisions to the concurrency management system contained in the CIE. However, the specific concurrency provisions of the CIE override the vaguer assurances of concurrency in CIE Goal 1 and Objective 1.5.
The specific concurrency provisions are CIE Policies 1.5.1, 1.5.2, 1.5.3, and 1.5.4. These provisions do not strictly require concurrency because they allow the County to rely, in issuing development orders, on Public Facilities that simply are not actually available when the impacts of development are experienced.
In their proposed final order, Citizens and Kessler focus on perceived deficiencies in the APFO's ability to calculate capacity and demand. As to capacity, they argue that the AUIR includes capacity-increasing projects scheduled in the County's five-year schedule of capital improvements, even if the funding is not included in the County's budget or the funding sources are unknown.
As an example of the deficiency in measuring capacity, Citizens and Kessler note a shortfall in the AUIR for 1991 of about $60 million for road projects over the ensuing five years and observe that the County is, by its own description, "noncompliant" with about half of its capital projects for fiscal year ending 1990. Citizens and Kessler assert that the calculated facility capacity, on which building permits are based, is artificially large, and, if revenue shortfalls are experienced, the County has no means to suspend development orders already issued in reliance upon scheduled projects for which the money is unavailable.
Of course, there is nothing objectionable in a process by which Public Facilities are inventoried periodically and the capacity of scheduled Public Facilities are calculated during the process of planning the location and service areas of additional infrastructure. The potential problem with APFO 7.2 is that it authorizes the inventorying of Public Facilities contained in the five-year schedule as part of a process under which these scheduled, but unavailable, Public Facilities are relied upon for the issuance of unconditional FLDO's.
The unconditional aspect of the FLDO's has been found inconsistent with the CIE Policy 1.5.3.E given the availability of unconditional building permits based on Certificates for road components that rely on scheduled road Public Facilities. However, Citizens and Kessler fail to recognize, in their challenge of APFO 7.2, that the reliance upon scheduled public facilities in issuing FLDO's is a feature of specific concurrency provisions in the Plan. For reasons set forth in the Conclusions of Law, the issue is the consistency of APFO 7.2 with the operative provisions describing weaker concurrency, rather than vaguer provisions describing stricter concurrency.
As to demand, Citizens and Kessler argue that the AUIR fails in two respects. First, they argue that the AUIR is based solely on County-wide population projections broken down into zonal data that ignore the locational impact of potential development arising from already-issued Certificates or exempt development.
Second, Citizens and Kessler argue that the AUIR ignores the demand arising from Certificates already issued in the same review period for which a Certificate is sought. By way of illustration, Citizens and Kessler contend that the County could issue a Certificate for a development that would exhaust all remaining road capacity on a particular segment. Then, a few days later-- while still in the same annual review period--the County could issue additional Certificates for development impacting the same road segment.
Again, any failure of the AUIR is, in these cases, limited exclusively to inconsistency with the Plan. The demand calculations are consistent with the cited provisions of the Plan. Nothing in the Plan requires the County to measure demand on a frequency greater than annually. Nothing in the Plan requires the County to locate the area of the demand in greater detail than is available through use of the population data broken down into zones.
The County's demand calculations could gain greater precision if they were performed more frequently than annually or they were more focused as to the location of specific traffic impacts. However, the question is one of degree. An annual consideration of valid population projections that are then broken down into zones within the County suffices for consistency with the cited Plan provisions.
2. APFO 7.4
Citizens and Kessler have failed to prove to the exclusion of fair debate that APFO 7.4 is inconsistent with any of the following Plan provisions: CIE Goal 1; Objectives 1.4 and 1.5; and Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objectives 2 and 3 and Policies 2.1, 3.1.G, and 3.1.L. These Plan provisions have been described in the preceding subsection discussing APFO 7.2.
APFO 7.4 requires the Growth Management Director annually to establish ASI's for deficient or potentially deficient roads and allocate Annual Residual Capacity Trips to applicants for Certificates for development applications in ASI's involving potentially deficient roads. The ASI must include the area where development may be expected to place an "unreasonable number of new trips" on the deficient or potentially deficient road segment.
The Annual Residual Capacity Trips allotment represents the difference between the present traffic count and "100% of the potentially deficient road segment" with "30% of the . . . remaining capacity . . . reserved for only those land uses which generate one (1) peak hour trip per day or less . . .." APFO 7.4 provides that the ASI designation remains in effect through the entire year unless the additional required road projects are earlier identified or funded.
The only Plan provision possibly inconsistent with APFO 7.4 is FLUE Policy 3.1.G. FLUE Policy 3.1.G requires that the LDR's "shall include provision for review of existing and committed land use at time of application for rezoning [and] definition of and prohibition of issuance of a 'local development order' that would be inconsistent with the Concurrency Management System . . .." The first part of the quoted clause requires the County to collect and consider demand data current as of the time of the application. However, the application to which the language refers is not the application for a Certificate, but only an application for rezoning. The "rezoning" reference appears not to intend the issuance of a development order, which is explicitly addressed in the second part of the quoted clause. As noted above, the other concurrency provisions of the Plan do not impose upon the County the specific requirement that it survey demand more frequently than annually or more accurately than the zonal analysis of population projections allows.
3. APFO 8.3.5.6
Citizens and Kessler failed to prove to the exclusion of fair debate that APFO 8.3.5.6 is inconsistent with any of the following provisions: CIE Goal 1; Objectives 1.4 and 1.5; and Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objectives 2 and 3 and Policies 2.1, 3.1.G, and 3.1.L. These Plan provisions have been described in the subsection above discussing APFO 7.2.
APFO 8.3.5.6 provides that the road component of the Certificate shall be granted if the development is not within an ASI or, if within an ASI covering a potentially deficient road segment, the proposed development would not make the potentially deficient road segment a deficient road segment.
Citizens and Kessler first challenge the provision allowing Certificates for road components to be granted as long as the development is not within an ASI. Citizens and Kessler argue that this provisions precludes an assessment of existing and projected demand when the permit is issued. However, there is no inconsistency between this aspect of APFO 8.3.5.6 and the cited Plan provisions. Citizens and Kessler are really challenging the frequency of the infrastructure inventory and reliance upon a zonal breakdown of population projections rather than analysis of impact based on previously issued Certificates and vested development. As discussed in the preceding subsections, there are no inconsistencies between these provisions of the APFO and the cited Plan provisions.
Citizens and Kessler also challenge APFO 8.3.5.6 with respect to the standards set for roads within an ASI. Again, the challenge to this aspect of APFO 8.3.5.6 is based on the County's reliance upon scheduled capital projects in issuing development orders. As discussed in the preceding subsections, there are no inconsistencies between these provisions of the APFO and the cited Plan provisions.
4. APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5,
and 8.3.5.5.1.5
Citizens and Kessler failed to prove to the exclusion of fair debate that APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5 are inconsistent with any of the following Plan provisions: CIE Goal 1; Objectives
1.4 and 1.5; and Policies 1.1.1, 1.4.4, and 1.5.5; and FLUE Objectives 2 and 3 and Policies 2.1, 3.1.G, and 3.1.L. These Plan provisions have been described in the subsection above discussing APFO 7.2.
112. APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5, which
Citizens and Kessler do not address in their proposed final order, allow concurrency determinations for non- road components of the Certificate if the required Public Facility is contained in the County's five-year schedule of capital improvements. The sections require that the schedule be based on a realistic, financially feasible funding program from existing revenue sources. The sections require that a Plan amendment is required to delay or eliminate any scheduled Public Facility on which the County has relied in issuing a development order. Lastly, the sections require that such a development order be expressly conditional, so that the development order is suspended and further development stopped if, without a Plan amendment, the required Public Facility is delayed or eliminated.
There are no inconsistencies between the cited Plan provisions and APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5.
Corkran, DCA, Citizens, and Kessler: DOAH Case No. 91-0858GM
Corkran, DCA, Citizens, and Kessler proved to the exclusion of fair debate that the APFO is inconsistent with and fails to implement CIE Policy 1.5.3.E.
Dealing exclusively with roads, CIE Policy 1.5.3.E requires that, if a "development order" is issued in reliance upon a scheduled capital improvement, then the development order must be conditional. The condition is that the development order shall be "suspended and no further development shall be carried out" if, absent a Plan amendment, the required Public Facility is delayed or eliminated from the State or County five-year schedule, annual funding is insufficient to maintain the County five-year schedule of capital improvements, or construction of the required Public Facility is not undertaken in accordance with the State or County five-year schedule of capital improvements.
Under the APFO, the road component of the Certificate is issued unless the development is in an ASI. In determining whether and where it must locate road ASI's, the County may treat as available any road project scheduled in the State five-year work program or County five-year schedule of capital improvements.
An obvious problem arises if the relied-upon road project is delayed or eliminated from either five-year schedule without a Plan amendment. Numerous FLDO's may have been issued in reliance upon the road project prior to its deletion from either five-year schedule. Because these FLDO's are unconditional, the County would be unable, under the APFO, to satisfy the requirements of CIE Policy 1.5.3.E and suspend further development once the road project were delayed or eliminated from the State or County five-year schedule. The failure of the APFO to provide for conditional development orders as to roads is clearly inconsistent with and fails to implement CIE Policy 1.5.3.E.
Corkran, Citizens, and Kessler: DOAH Case No. 91-0994GM
Corkran, Citizens, and Kessler failed to prove to the exclusion of fair debate that APFO 4.10.2.4 is inconsistent with or fails to implement CIE Policy 1.5.3.E.
APFO 4.10.2.4 allows the County's determination of deficient roads to be based on the capacity from road projects in the State or County five-year schedule. This is consistent with CIE Policy 1.5.3.E, which expressly allows the concurrency determination to be based on road projects in the State or County five-year schedule.
As noted above, CIE Policy 1.5.3.E requires the suspension of conditional development orders if relied-upon road projects are not built when scheduled absent a Plan amendment. CIE Policy 1.5.3.E also requires the County to adopt a plan amendment to delay or eliminate any road project contained in the County's five-year schedule of capital improvements if the road project has been relied upon in issuing a development order. However, nothing in APFO
is itself in conflict with these Plan provisions.
In no way is the entire APFO inconsistent with CIE Policy 1.5.3.E by omitting mention of the Plan requirement of an amendment whenever relied-upon road projects are delayed or eliminated. To the contrary, if a local government desires to identify a triggering event for a plan amendment, the appropriate location to identify the event is the plan itself, not the LDR's.
CONCLUSIONS OF LAW
Jurisdiction and Standing
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Sections 120.57(1) and 163.3213(5)(a) and (b), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Standing
Section 163.3213(1) gives certain "substantially affected persons" the right to maintain administrative proceedings concerning land development regulations. Section 163.3213(2) states that a "substantially affected person" must meet the same criteria under Chapter 163, Part II, as under Chapter 120.
Corkran, Citizens, and Kessler have shown that they are substantially affected persons. Citizens and Kessler have shown that they are entitled to intervene on behalf of Corkran and DCA in DOAH Case Nos. 91-0858GM and 91-0994GM.
Conditions Precedent to Institution of LDR Challenges
Section 163.3213(3) establishes a "condition precedent to the institution of a proceeding pursuant to subsection (4)." Section 163.3213(3) requires a substantially affected person to file a challenge within 12 months after the final adoption of the LDR's. The petition must identify the LDR and the factual grounds for the allegation that the LDR is inconsistent with the plan. After receiving the local government's response, which must be submitted within 30 days, the substantially affected person may, pursuant to Section 163.3213(3), file a petition with DCA challenging the local government's response. Under Section 163.3213(3), the petitioner has 30 days from the response or the end of the response period to file a petition with DCA challenging the LDR. If he fails to file a petition within the allotted time period, the petitioner is deemed, under Rule 9J-24.007(8), to have waived his right to request an administrative hearing.
Under Section 163.3213(4), DCA must, upon receipt of a petition, conduct an informal hearing and issue a written decision as to whether the LDR is consistent with the plan. If DCA determines that the challenged LDR is consistent with the plan, Section 163.3213(5)(a) authorizes the challenger to file a petition with DOAH within 21 days from the date of DCA's determination. If DCA determines that the challenged LDR is inconsistent with the plan, then, pursuant to Section 163.3213(5)(b), DCA shall request a hearing from DOAH within
21 days from the date of DCA's determination.
The necessary conditions precedent have been met. As argued by Collier County, Petitioners, other than in DOAH Case No. 91-0858GM, were allowed to amend their challenges after the expiration of 12 months following the adoption of the APFO and raise new challenges. Although the law does not forbid
such amendments, 21/ the issue in this case is moot because the only challenge sustained in these cases is that set forth in DOAH Case No. 91-0858GM. This challenge--originally presented by Corkran and later joined by DCA, Citizens, and Kessler--was clearly presented to the County in the manner that the County contends all such challenges must be presented.
The Consistency Determination
The sole issue in an administrative challenge is whether the LDR's "implement and are consistent with the comprehensive plan." Section 163.3213(1) and (3). The word, "implement" does not, as Petitioners contend, allow an administrative challenge based on a local government's failure to adopt LDR's that address the minimum substantive regulations set forth in Section 163.3202(2).
Section 163.3202(2) provides that the LDR's "shall contain specific and detailed provisions necessary or desirable to implement the adopted comprehensive plan and shall as a minimum" regulate or protect various matters, such as the subdivision of land, water wellfields, environmentally sensitive land, and signage. One of these statutory requirements is that the LDR's achieve concurrency.
The remedy for the refusal of a local government to adopt the "regulations required by . . . Section [163.3202]" is for DCA to
institute an action in circuit court to require adoption of these regulations. This action shall not review the compliance of adopted regulations with this section or consistency with locally adopted plans.
Section 163.3202(4).
The administrative proceeding under Section 163.3213 "shall be the sole proceeding available to challenge the consistency of a [LDR] with a comprehensive plan adopted under this part." Section 163.3213(7).
In general, then, the administrative proceeding is reserved for challenges concerning whether the LDR's are consistent with the plan, and the circuit court proceeding is reserved for challenges concerning the failure of a local government to adopt LDR's.
It could be argued that the circuit court jurisdiction exists exclusively for those cases in which local governments fail to adopt any LDR's. Under this approach, a local government adopting some regulations, but, say, failing to adopt any regulations regarding concurrency or signage could be the subject of an administrative proceeding as to the omitted concurrency or signage regulation. An administrative proceeding to determine whether the local government complied with Section 163.3202 would seem, by negative implication, to be allowed by the last sentence of Section 163.3202(4), which refers to compliance with Section 163.3202, as well as specifically consistency with the plan.
However, the better interpretation of the last sentence of Section 163.3202(4) is that the circuit court has jurisdiction over a local government that has failed to adopt all or part of the required regulations. This interpretation was implicitly adopted by DCA in its rules. 22/ The statutory
prohibition against the circuit court reviewing compliance of LDR's with Section 163.3202 or consistency of LDR's with the plan merely means that the court should not review compliance of the adopted regulations with the portion of Section 163.3202(1) that restates the requirement that LDR's be consistent with the plan.
The purpose of the circuit court action is to "require adoption of these regulations." Whether the local government has failed to adopt a certain regulation or any at all, it is obvious that the Division of Administrative Hearings lacks jurisdiction to "require" the local government to adopt LDR's; the sole source of such jurisdiction is in circuit court.
Exclusive circuit-court jurisdiction over the failure of a local government to adopt all or part of the required LDR's does not mean that the sole source of administrative relief is derived from proving an inconsistency between a land development regulation and a plan provision. The question in Section 163.3213 proceedings is whether the land development regulations implement and are consistent with the plan.
An obvious source of inconsistency consists of express provisions of the LDR's conflicting with plan provisions. However, it is possible that an inconsistency may arise--and certainly a plan may fail to be implemented--by the failure of the LDR's to address a matter.
Rule 9J-24.008 provides:
A determination of consistency of a[n LDR] with the comprehensive plan will be based upon the following:
Characteristics of land use and development allowed by the regulation in comparison to the land use and development proposed in the comprehensive plan. Factors which will be considered include:
type of land use;
intensity and density of land use;
location of land use;
extent of land use; and
other aspects of development, including impact on natural resources.
Whether the [LDR's] are compatible with the comprehensive plan, further the comprehensive plan, and implement the comprehensive plan. The term "compatible" means that the [LDR's] are not in conflict with the comprehensive plan. The term "further" means that the [LDR's] take action in the direction of realizing goals or policies of the comprehensive plan.
Whether the [LDR's] include provisions that implement objectives and policies of the comprehensive plan that require implementing regulations in order to be realized, including provisions implementing the requirement that public facilities and services needed to support development shall be available concurrent with the impacts of such development.
Collier County argues that the consistency determination in this case should be directed at the original plan, not the plan as amended five weeks after the adoption of the APFO. No purpose would be served by conducting a weeklong hearing on whether the APFO was consistent with plan provisions that have been repealed, superseded, or revised. The question of plan amendments raise interesting theoretical issues, such as whether a plan amendment adopted more than 12 months after the adoption of LDR's allows a challenge to the LDR's as inconsistent with the newly amended plan. However, these issues do not arise in this case where the initial petitions were not filed until after the adoption of the subject plan amendments. Collier County had ample opportunity to address the consistency questions as properly posed, which is between the APFO and the plan as amended.
Standard of Proof
Section 163.3213(5)(a) or (b), which respectively govern cases in which DCA determines that LDR's are consistent or inconsistent with the plan, provide that the adoption of LDR's is legislative in nature and "shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan."
Consistency Determinations
For the reasons set forth in the Findings of Fact, Corkran, Citizens, and Kessler failed to prove to the exclusion of fair debate that APFO
4.10.2.4 is inconsistent with CIE Policy 1.5.3.E.
For the reasons set forth in the Findings of Fact, Citizens and Kessler failed to prove to the exclusion of fair debate that the remaining cited provisions of the APFO were inconsistent or failed to implement the cited portions of the Plan.
In DOAH Case No. 90-8101GM, the key point is that it is fairly debatable that the cited APFO provisions are consistent with the key CIE provisions concerning concurrency, although the APFO provisions were inconsistent with vaguer CIE provisions assuring actual concurrency.
The problem may arise in LDR challenges that an LDR is compared to provisions of a plan that are internally inconsistent, as here. In such a case, one approach is to determine which plan provisions are operative. It is evident from the face of the Plan that CIE Policies 1.5.1, 1.5.2, 1.5.3, and 1.5.4 are intended to govern concurrency determinations. Obviously, assurances of actual concurrency elsewhere in the Plan must be subordinated to these four more specific, though less rigorous, policies.
For the reasons set forth in the Findings of Fact, Corkran, DCA, Citizens, and Kessler proved to the exclusion of fair debate that the APFO is inconsistent with CIE Policy 1.5.3.E. An FLDO, or a final building permit, may not be issued conditionally. So if a scheduled road Public Facility on which the County relies in issuing an FLDO, or final building permit, is delayed or eliminated, without a Plan amendment, the APFO fails to give the County any means to suspend the already-issued building permit and stop further development. CIE Policy 1.5.3.E requires just such a condition and is not implemented by reliance on some extraordinary action by the County Commission to suspend development based on unconditional building permits. Thus, the APFO is inconsistent with CIE Policy 1.5.3.E.
Sanctions
Pursuant to Section 163.3213(6), the Administration Commission has sole jurisdiction over the issues whether and to what extent sanctions should be imposed. However, the Request for Hearing of Corkran and DCA demands a final order confirming DCA's determination of noncompliance and recommending sanctions.
There are several aggravating circumstances in this case. First, the County has experienced serious budgetary constraints in pursuing its capital improvement program. The chance of the delay or removal of a road Public Facility is a real, not remote, possibility.
More important, CIE Policy 1.5.3.E permits concurrency determinations to be based on road Public Facility projects that will not be available until, in some cases, years after the impact of the proposed development takes place. After September 30, 1994, CIE Policy 1.5.4.E continues this policy, with unimportant revisions, into the indefinite future. These provisions are applicable to all nonexempt development in the County and are not limited to achieving specific objectives such as encouraging affordable housing.
In conjunction with what may charitably be termed a relaxed approach to concurrency as to roads, the Plan offers only one effective safeguard. The Plan's safeguard is that FLDO's (i.e., final building permits) issued in reliance upon scheduled road Public Facilities must be conditional; if the scheduled road Public Facilities are delayed or eliminated, without a Plan amendment, then development under the FLDO is suspended. Even this safeguard is only partially effective. Whatever development has been completed before the scheduled road Public Facility is delayed or eliminated obviously remains in place and exacerbates the actual LOS of affected roads.
However, the County failed to carry over this single safeguard from the Plan to the APFO. Following adoption of the Plan, the County found itself no longer willing to countenance such "drastic action," or risk such "dire consequences" as would flow from, the suspension of further development after issuance of a building permit based on scheduled road Public Facilities. This unwillingness came despite the fact that, in its Plan, the County had elected to adopt the aggressive strategy of treating as available road Public Facilities that are merely included in a five-year schedule of capital improvements.
When it came time to adopt LDR's, the County chose instead to omit the Plan requirement for the issuance of conditional building permits when such permits were issued in reliance upon scheduled road Public Facilities. Retreating further from the demands of concurrency, the County decided to depend on the extraordinary action of the County Commission to revoke already-issued,
unconditional building permits in defiance of landowners' investment-backed expectations--expectations that could have been avoided if the permits had been issued, as promised in the Plan, conditionally.
There are no mitigating circumstances.
ORDER
Based on the foregoing, it is hereby ORDERED that:
The LDR challenges are dismissed in all respects except as noted in the following paragraph.
As asserted by Corkran, DCA, Citizens, and Kessler, the APFO is inconsistent with and fails to implement CIE Policy 1.5.3.E. The reason is that the APFO fails to impose the condition upon Final Local Development Orders that the permit is suspended and further development must cease if, absent a Plan amendment, scheduled road Public Facilities upon which the County relied in issuing the Certificate are delayed or eliminated.
Pursuant to Section 163.3213(6), Florida Statutes, the final order is submitted to the Administration Commission with the recommendation that it impose substantial sanctions, as authorized by Section 163.3184(11)(a) and (b), Florida Statutes.
DONE and ORDERED this 27th day of August, 1992, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1992.
ENDNOTES
1/ At pp. 2-3 of his proposed final order, Mr. Corkran waived the other issues that he had raised. These were:
Whether APFO Section 4.10.2.3 is inconsistent with Capital Improvement Element Policy 1.5.3.D.
Whether any provision of the APFO implements Capital Improvement Element Policy 1.5.3.F.
Whether the APFO is inconsistent with or fails to implement Capital Improvement Element Policy 1.5.3.A., B., and C.
2/ Collier County argues that the consistency determination in these cases should involve the LDR's and the original Growth Management Plan, without regard to the amendments that were adopted five weeks after the adoption of the LDR's.
The County's argument has been rejected for the legal reasons set forth in the Conclusions of Law.
The County's argument has also been rejected due to the insignificance of the differences between the provisions of original and amended Capital Improvement Element Policy 1.5.3.E, which is the plan provision on which the successful challenges rely.
With the old language stricken through and the new language underlined, Policy 1.5.3.E states:
The construction of the required facility facility required to accommodate the impact of development occurring before October 1, 1994 is included in the State's Five (5) Year Work Program or the County's current five (5) year Capital Improvement Schedule adopted as a part of this Growth Management Plan prior to October 1, 1994. A plan amendment is required to eliminate, defer or delay construction of any road project in the Schedule of Capital Improvements which is needed to maintain the adopted level of service standard. Any development order issued pursuant to a concurrency finding under this section is expressly conditional so that the permit shall be suspended and no further development shall be carried out in the event any of the following occur without a corresponding plan amendment:
The required facility is delayed, deferred, or removed from the State's Five (5) Year Work Program or the Schedule of Capital Improvements.
Annual funding is insufficient to maintain the Schedule of Capital Improvements.
Construction of the required facility or facilities is not undertaken in accordance with the County's adopted Schedule of Capital Improvements or the State's Five (5) Year Work Program.
3/ The Certificate of Public Facility Adequacy, which is discussed in Findings of Fact Paragraphs 58 et seq. below, is the concurrency determination.
4/ The Annual Update and Inventory Report is discussed at Findings of Fact Paragraphs 74 et seq. below.
5/ Areas of Significant Influence are discussed at Findings of Fact Paragraphs
83 et seq. below.
6/ The Determination of Consistency refers to Capital Improvement Element Policy 1.5.3.E, as amended.
7/ Portions of the Determination of Consistency involve claims that Corkran abandoned in his proposed final order. The Determination of Consistency states that Corkran alleges that APFO 4.10.2.3 is inconsistent with CIE Policy 1.5.3.D in three respects.
First, APFO 4.10.2.3 allegedly does not require that the State or County budget contain funds for construction of the required public facilities. APFO
4.10.2.3 requires only that capital road improvements be included in the State or County budget. Corkran alleges that the County could remove the required
improvement from the budget after a development order is issued or include the required improvement in the budget as a future item not currently funded or scheduled for construction.
The second alleged inconsistency between APFO 4.10.2.3 and CIE Policy
1.5.3.D is that the APFO provision does not dictate that required public facilities be included in the State or County budget when the building permit is issued. APFO 4.10.2.3 requires only that the required facility be included in the State or County budget. Corkran alleges that the County could remove the required improvement "from the APFO" before the final development order is issued. Thus, development allegedly could proceed without including the required facility in the budget.
The third alleged inconsistency between APFO 4.10.2.3 and CIE Policy
1.5.3.D is that the APFO provision allows concurrency to be met by including the required public facilities in the State or County adopted budget, but does not prohibit the LOS from falling below the adopted LOS standard, as CIE Policy
does.
8/ These requirements are that the funding is financially feasible, no road serving the proposed development will operate at worse than LOS E, and no road serving the proposed development will operate at LOS E for more than two years.
9/ Exempt development includes development proceeding under vested rights or a DRI order.
10/ For each non-road Public Facility, the APFO provides that a Certificate shall be issued if:
The required public facilities are in place at the time a building permit is issued, or a building permit is issued subject to a condition that the necessary facilities will be in place when the impact of development occurs;
The required Public Facilities are under construction at the time a building permit is issued;
The required Public Facilities are the subject of a binding contract executed for the construction of those Public Facilities at the time a building permit is issued;
The construction of required Public Facilities has been included in the County's adopted budget at the time a building permit is issued even though the Public Facilities are not yet the subject of a binding contract for their construction.
APFO 8.3.5.1.1.1-8.3.5.1.1.4 (Potable Water), 8.3.5.2.1.1- 8.3.5.2.1.4 (Sanitary
Sewer), 8.3.5.3.1.1-8.3.5.3.1.4 (Solid Waste), and 8.3.5.5.1.1-8.3.5.5.1.4
(Parks).
For each non-road Public Facility, the APFO also allows the issuance of a Certificate if:
The construction of [Public] Facilities required to accommodate the impact of development occurring before October 1, 1994, is scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994. The Schedule of Capital Improvements shall be based on a realistic, financially feasible program of funding from existing revenue sources and shall be adopted as a part of the Growth Management Plan. A plan amendment is required to eliminate, defer or delay construction of any Category "A" Public Facility in the Schedule of
Capital Improvements which is needed to maintain the adopted [LOS] standard. The development order issued pursuant to a Certificate . . . is expressly conditional so that the development order shall be suspended and no further development shall be carried out in the event any of the following occur without a corresponding Growth Management Plan Amendment:
The required [Public] Facilities are delayed, deferred, or removed from the adopted Schedule of Capital Improvements.
Annual funding is insufficient to maintain the [Public] Facilities Projects in the Schedule of Capital Improvements.
Construction of the required Capital ... facility or facilities is not undertaken in accordance with the adopted Schedule of Capital Improvements.
APFO 8.3.5.1.1.5, 8.3.5.2.1.5, 8.3.5.3.1.5, and 8.3.5.5.1.5.
11/ For each of the non-road Public Facilities contained in the five-year schedule of the County (but not the State) and relied upon in the issuance of a Certificate, the APFO provides that:
construction of required Capital . . . facilities scheduled in the County's Schedule of Capital Improvements prior to October 1, 1994 will not be delayed, deferred or removed from the [CIE] if the facilities have been relied upon for the issuance of a development order.
See, e.g., APFO 8.3.5.1.1.6.
12/ A "potentially deficient road segment" and a "deficient road segment" are discussed in Findings of Fact Paragraphs XX et seq. below.
13/ The Annual Update and Inventory Report is discussed in Findings of Fact Paragraphs XX et seq. below.
14/ The Certificate generally expires three years from its date of approval, "except to the extent that building permits have been issued for the proposed development for which the Certificate is approved . . .." APFO 8.3.2.4. For certain development "comprised of more than . . . 500 residential dwelling units, or for phased increment of development comprised of more than . . . 150 residential dwelling units, or for a commercial/industrial development of more than 100,000 square feet of gross leasable area," the Certificate expires five years from the date of its approval "except to the extent that building permits have been issued for the proposed development for which the Certificate is approved." However, other requirements must be met for a five-year term, such as obtaining the approval of the Final Subdivision Plan or Final Site Development Plan within 12 months from the date of issuance of the Certificate and the commencement of construction of the infrastructure for the Final Subdivision Plat or Final Site Development Plan and recordation of the Final Subdivision Plan within 36 months from the date of issuance of the Certificate. APFO 8.3.2.4.1.
Once an applicant has a Certificate, the development is deemed to have adequate Public Facilities and, thus, to have satisfied concurrency. APFO
8.3.2.5. However, any Certificate issued after the AUIR has been issued will be subject to all boundaries and allotments ultimately adopted by the Board of County Commissioners. APFO 8.3.2.6. If the Certificate expires, the applicant must recommence the process. APFO 8.3.2.5.
15/ However, an FLDO is evidently valid for only a specified period. The definition of an FLDO refers to an "unexpired" building permit.
16/ APFO 4.10.2.3.
17/ APFO 4.10.2.4.
18/ Special provisions apply to Certificates issued after the publication of an AUIR and before the County Commission decides on the ASI boundaries and Annual Residual Capacity Trip allotments. Under APFO 8.3.2.5, all Certificates issued after the publication of an AUIR are expressly conditioned upon the ASI boundaries and Annual Residual Capacity Trip allotments ultimately adopted.
During the interim period, which is about one month, the County presumably issues only conditional building permits for the potentially affected area in which only conditional Certificates are available.
19/ If the development is outside an ASI, the Certificate may be issued, at least with respect to the road component of the concurrency determination.
APFO, 8.3.5.6.1.
If the development is inside an ASI covering a "potentially deficient road segment," the road component
shall be approved, subject to available capacity, if it is demonstrated the proposed development will not make the potentially deficient road segment within the ASI a deficient road segment.
In the instance where the proposed development will create a deficient road segment, a Certificate . . . for the road component shall be approved only for that portion of the development that does not create the deficient road segment.
APFO 8.3.5.6.2.
If the development is inside an ASI covering a "deficient road segment," the road component
shall be approved only for that portion of the development that does not increase the net trips on the deficient road segment and does not further degrade the LOS of the deficient road segment.
APFO 8.3.5.6.2.
20/ The following represents portions of the testimony of Stan Litsinger, who is the County's Director of the Growth Management Department:
Q [Direct]: Give--tell me your opinion on conditional permits.
Rather than going through section by section, tell me what would happen in that situation had we, if, had we done what they're talking about.
That is, once a building permit is issued, if we terminate and suspend, actually suspend the building permit after it is underway and then terminated further development halfway through the development.
What kind of problems would you see in the community?
A: I think that-- of course, we go back to a rational application of the laws, statutes and this ordinance.
The situation if it were to arise where we would suspend particularly any [FLDO's] that this county had
issued and there became a widespread belief that there could be no reliance on the county's commitments made in the form of these development orders and these certificates, I think you would essentially see a major portion of the commerce of this community grind to a halt because there would be no activity whatsoever.
Q: Okay. In other words, by including it in the comp plan, you feel that's sufficient; we don't need to put more fear of concurrency in the APFO ordinance?
A: Oh, absolutely. The requirement of the LDR is that it be consistent and further the goals and policies of your comprehensive plan.
I don't think there is any requirement that it be a verbatim reiteration of every word in the comp plan.
And, of course, the comp plan stands as notice of actions that are available to your elected body.
* * *
Q [cross]: . . . But looking at Policy 1.5.3.E in that last sentence which sets up- -that any development order issued pursuant to concurrency requirement must be expressly conditional and provide for a suspension of development where one of these three conditions take place and there is not a plan there?
A: I think you may have misread the sentence slightly. Q: How is that?
A: The sentence says: An[y] development order issued pursuant to a concurrency finding--which is a certificate--under this section is expressly conditional.
Q: So what happens?
A: Which would mean implicit by the operative policies of this plan that in a situation that called for such an extraordinary action that a development order could be rescinded.
Q: I'm sorry. Could you repeat that?
A: It's implicit by the policy in this plan that any development order under the conditions in the county which require such a drastic action could be rescinded by the actions of the Board of County Commissioners.
Q: Okay. And so the county commissioners can suspend a development order or the permit under this section if you've got this situation?
A: That's what the policy says.
Q: Okay. But there is nothing in this policy that let's the general public--I believe you testified that this policy serves to notify anyone of the policy, the position of the county--
A: That's correct.
Q: --in regard to these conditions.
But how would this be implemented or be self- implementing if there is nothing to let John Q. Citizen know that the Board of County Commissioners is going to do that? In other words--
A: Well, this policy was adopted by the ordinance, and I believe that ignorance of the law is not a defense.
* * *
Q: . . . Is there any direction or implementation in this tool, the APFO, for the suspension as required by the capital improvements element under these conditions?
A: I don't believe there is a specific reference. Q: And is it not essential that there be an implementing ordinance or a regulation in order for these, for this to be realized or this suspension to actually take place?
A: No, I don't thing that there is. Q: Why is there not a need for that?
A: Because in the case of [an] ASI of such dire consequences where we needed to take an action with the legal consequences that you know would occur, to essentially void the existing [FLDO's] on which there had been substantial reliance and so forth, there would be a separate action by the Board of County Commissioners to address those circumstances.
Q: And where does that appear in the [APFO] or the policy itself?
A: It doesn't.
Tr. pp. 1264-65; 1278-79; and 1280-81.
21/ The conditions precedent are not intended to limit the scope of the proceeding. If a petitioner satisfies the conditions precedent as to any single LDR, he may proceed to litigate his LDR challenge under prevailing procedural rules, including those allowing the amendment of pleadings.
Cf. 163.3184(1)(a) and (8)(a), which involve plan challenges.
163.3184(1)(a) requires a plan challenger to submit timely objections, but does not restrict the issues to the contents of the objection that the challenger must first submit to the local government in order to obtain standing. An affected person, after timely submitting an objection, may challenge any aspect of a plan or plan amendment without regard to the scope of his objection.
163.3184(8)(a) provides that, in the absence of the introduction of new plan provisions after DCA issues its objections, recommendations, and comments, the content of the objections, recommendations, and comments limits the range of issues upon which DCA may rely in issuing its notice of intent to determine that the plan is not in compliance. However, 163.3184(8)(a) does not limit the range of issues that DCA may assert once it has issued a notice of intent meeting the requirements of 163.3184(8)(a).
22/ Rule 9J-24.006, which addresses the procedure if a local government has "completely failed to adopt one or more of the [required LDR's], culminates in the initiation of a circuit court action.
APPENDIX
Treatment Accorded Proposed Findings of Citizens and Kessler 1-14: adopted or adopted in substance.
15-16: rejected as legal argument.
17-26: adopted or adopted in substance.
27: first sentence rejected as unsupported by the appropriate weight of the evidence. Second sentence (first clause) adopted. Second sentence (second clause) rejected as unsupported by the appropriate weight of the evidence.
Remainder adopted to the extent consistent with the findings of the final order.
28: adopted.
29: first sentence adopted to the extent consistent with the findings of the final order. Remainder adopted or adopted in substance.
30: adopted except as to conditional Certificates issued, in affected areas, after the publication of the AUIR and before the County Commission's final determination as to ASI's and Annual Residual Capacity Trip allotments. In general, and for purposes of this final order, the proposed finding is correct.
31: adopted.
32-33: rejected as unsupported by the appropriate weight of the evidence. 34-35: adopted.
36: rejected as irrelevant.
37: rejected as unsupported by the appropriate weight of the evidence and irrelevant.
38: adopted except that the AUIR is for fiscal year ending 1991. 39-41: adopted.
42: rejected as unsupported by the appropriate weight of the evidence except as to citation of APFO 7.2.
43: adopted.
44: rejected as subordinate.
45-46: adopted as to the failure to impose a condition upon
final building permits issued in reliance upon scheduled Public Facilities so that the development permit is suspended and further development stopped if a required Public Facility project is delayed or eliminated.
47-50 (first three sentences): adopted as to issue noted in preceding paragraph. For other issues, these aspects of the APFO are consistent with the Plan.
50 (remainder): rejected as unsupported by the appropriate weight of the evidence.
51-52 (first two sentences): rejected as irrelevant.
52 (remainder)-53: adopted or adopted in substance.
54: first sentence adopted. Second sentence rejected as irrelevant (see 45-46). Third sentence adopted.
Treatment Accorded Proposed Findings of Corkran
(Numerous proposed findings pertain to DOAH Case No. 90-4545GM, which is the Plan amendment case on which a recommended order was issued on April 13, 1992. No rulings are made on such proposed findings.)
1-3: adopted.
11: rejected as unsupported by the appropriate weight of the evidence and subordinate.
12-13: adopted.
20: first sentence rejected as subordinate. Second sentence rejected as irrelevant; the issue is consistency with the Plan's concurrency provisions, regardless of their strength. Third sentence: rejected as irrelevant.
22-23: adopted or adopted in substance.
24: adopted. However, the implication that APFO 4.10.2.4 fails to implement CIE Policy 1.5.3.E is rejected as unsupported by the appropriate weight of the evidence. The point is that, as far as it goes, APFO 4.10.2.4 is consistent and even implements the Plan. The failure to which this and similar proposed findings alludes is evidenced by the failure of the APFO to condition the issuance of final building permits so that they are suspended and further development stopped if, without a Plan amendment, relied- upon road Public Facilities are delayed or eliminated.
25 and 27: rejected as legal argument. 26: adopted.
28: rejected. See 24 above. 29: rejected as irrelevant.
30: rejected as legal argument. 31-32: adopted.
33-41; 44-48; and 50: rejected. See 24 above. 42-43: rejected as irrelevant.
51-52: rejected as legal argument.
Treatment Accorded Proposed Findings of DCA 1: duly noted.
2: adopted except that the County adopted Plan amendments on May 1, 1990. 3-22: adopted or adopted in substance.
23: rejected as unsupported by the appropriate weight of the evidence to the extent that this proposed finding is inconsistent with the findings of the final order.
24-25: rejected as repetitious. 26-27: adopted.
28: adopted to the extent that any development order should be a conditional development order if the development order were issued in reliance upon scheduled Public Facilities.
29: up to "which is" adopted. Remainder rejected as legal argument. 30-37: adopted or adopted in substance.
38: rejected as legal argument.
39-40: adopted or adopted in substance. 41: rejected as irrelevant.
42-49: adopted.
50-58: rejected as irrelevant, legal argument, and unsupported by the law to the extent of any implication that DCA has the statutory authority to bind third parties to DCA's incorrect interpretations of the concurrency requirements of the Act, as expressed in policy pronouncements predating Rule 9J-5.0055 and later in Rule 9J-5.0055.
Treatment Accorded Proposed Findings of Collier County 1-5: adopted.
6 and 16: rejected as irrelevant.
9-15: adopted or adopted in substance.
17-18: adopted except that the original plan was adopted on January 10, 1989, not 1990.
19: rejected as irrelevant.
20-22: adopted or adopted in substance. 23-25: rejected as unnecessary.
26: rejected as unsupported by the appropriate weight of the evidence. The extent of deficiency is one factor in deciding how flexible a concurrency management system is. Another factor is the extent to which a plan relies upon public facilities not yet available when the impacts of development are felt.
27-31: adopted or adopted in substance except to the extent of waived claims and the inconsistency noted in the final order between the APFO and CIE Policy 1.5.3.E.
COPIES FURNISHED:
Douglas M. Cook, Secretary Administration Commission Executive Office of the Governor The Capitol, PL-05
Tallahassee, FL 32399-0001
Linda Shelley, Secretary Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive
Tallahassee, FL 32399-2100
Stephanie M. Callahan, Assistant General Counsel Michael Donaldson, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, FL 32399-2100
Marjorie M. Student, Assistant County Attorney Collier County Courthouse
3301 E. Tamiami Trail Building F, Eighth Floor Naples, FL 33962
Robert C. Apgar Apgar & Theriaque 820 East Park Avenue
Building F, Suite 100 Tallahassee, FL 32301
William W. Merrill III Icard, Merrill, et al. Postal Drawer 4195
Sarasota, FL 34230
Sewell H. Corkran
213 Ninth Avenue South Naples, FL 33940
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE APPLICABLE AGENCY AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER OF THE ADMINISTRATION COMMISSION, PURSUANT TO SECTION 163.3213(6), FLORIDA STATUTES.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA ADMINISTRATION COMMISSION
THE CITIZEN'S POLITICAL COMMITTEE, INC. and JAMES K. KESSLER,
FINAL ORDER NO. AC-93-036
vs.
Petitioners, AC CASE NO. ACR-92-001 DOAH CASE NO. 90-8101GM
COLLIER COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
/ DEPARTMENT OF COMMUNITY AFFAIRS and SEWELL H. CORKRAN,
Petitioners,
and
THE CITIZEN'S POLITICAL COMMITTEE, INC. and JAMES K. KESSLER,
Intervenors,
vs.
COLLIER COUNTY,
Respondent.
/
DOAH CASE NO. 91-0858GM
SEWELL H. CORKRAN,
Petitioner,
and
THE CITIZEN'S POLITICAL COMMITTEE, INC. and JAMES K. KESSLER,
Intervenors,
vs.
COLLIER COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
/
DOAH CASE NO. 91-0994GM
FINAL ORDER
This matter came before the Governor and Cabinet of the State of Florida, sitting as the Administration Commission ("Commission") , on April 13, 1993, in Tallahassee, Florida pursuant to Section 163.3184, Florida Statutes, for consideration of a Final Order from the Division of Administrative Hearings filed with the Clerk of the Commission on August 27, 1992, and upon consideration of a Request to Approve the Stipulated Settlement and Compliance Agreement filed by the parties on April 2, 1993. The Commission hereby approves the Stipulated Settlement and Compliance Agreement. The Stipulated Settlement and Compliance Agreement is incorporated into this Draft Final Order as Exhibit A and the Commission retains jurisdiction over this matter until the provisions of the settlement are carried out.
Any party to this Order has the right to seek judicial review of the Order pursuant to section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Commission, Office of Planning and Budgeting, Executive Office of the Governor, Room 311 Carlton Building, 501 South Gadsden Street, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District Court of Appeal.
Notice of Appeal must be filed within 30 days of the day this Order is filed with the Clerk of the Commission.
DONE AND ORDERED, this 13th day of April 1993 in Tallahassee, Florida.
David K. Coburn, Secretary Administration Commission
FILED with the Clerk of the Administration Commission this 14th day of April 1993.
Clerk, Administration Commission
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail to the parties listed below this 14th day of April 1993.
DAVID K. COBURN, Secretary Administration Commission
The Honorable Lawton Chiles Marjorie M. Student Governor Assistant County Attorney
210, The Capitol Collier County Courthouse Tallahassee, Florida 32399-0001 3301 East Tamiami Trail
Building F, Eight Floor The Honorable Robert Butterworth Naples, Florida 33962 Attorney General
PL01, The Capitol Robert C. Apgar Tallahassee, Florida 32399-0001 Apgar & Theriaque
820 East Park Avenue
The Honorable Bob Crawford Building F, Suite 100 Commissioner of Agriculture Tallahassee, Florida 32301 LL-29, The Capitol
Tallahassee, Florida 32399-0001 William W. Merrill, III
Icard, Merrill, et al.
The Honorable Gerald Lewis Postal Drawer 4195
Comptroller Sarasota, Florida 34230 2001, The Capitol
Tallahassee, Florida 32399-0001 Sewell H. Corkran
213 Ninth Avenue, South The Honorable Tom Gallagher Naples, Florida 33940 Treasurer
LL-27, The Capitol Florida Administrative Law Tallahassee, Florida 32399-0001 Report
Post Office Box 385 Gainesville, Florida 32602
The Honorable Betty Castor
Commissioner of Education Robert Meale,
LL-24, The Capitol Hearing Officer Tallahassee, Florida 323-0001 Division of Administrative
Hearings
1230 Apalachee Parkway
The Honorable Jim Smith Tallahassee, Florida 32399
Secretary of State Stephanie Callahan, Esquire
LL-10, The Capitol Department of Community Tallahassee, Florida 32399-0001 Affairs
2740 Centerview Drive G.
Steven Pfeiffer Tallahassee, Florida 32399- 2100
Stephanie M. Callahan Department of Community Affairs 2740 Centerview Drive
Tallahassee, Florida 32399-2100
EXHIBIT A STATE OF FLORIDA
ADMINISTRATION COMMISSION
DEPARTMENT OF COMMUNITY AFFAIRS
AND SEWELL H. CORKRAN, CASE No. ACR-92-001
Petitioners,
(DOAH Case No. 91-0858 GM)
and
THE CITIZEN'S POLITICAL COMMITTEE, INC. and JAMES K. KESSLER,
Intervenors,
vs.
COLLIER COUNTY,
Respondent
/ THE CITIZEN'S POLITICAL COMMITTEE, INC., AND JAMES K. KESSLER,
Petitioners
vs. (DOAH Case No. 90-8101 GM)
COLLIER COUNTY AND DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents
/
SEWELL H. CORKRAN,
Petitioner,
(DOAH Case No. 91-0994 GM)
and
THE CITIZEN'S POLITICAL COMMITTEE, INC. and JAMES K. KESSLER,
Intervenors,
vs.
COLLIER COUNTY and DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents
/
STIPULATED SETTLEMENT AND COMPLIANCE AGREEMENT
Petitioners, FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS ("Department"), SEWELL CORKRAN, CITIZEN'S POLITICAL COMMITTEE, INC., and JAMES K. KESSLER, and
Respondent, COLLIER COUNTY ("County") , hereby stipulate and agree as follows: GENERAL PROVISIONS
Definitions. As used in this agreement, the following words and phrases shall have the following meanings:
Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes (1991) and Chapter 92-129, Laws of Florida, as amended.
Adequate Public Facilities Ordinance or APFO: A land development regulation of Collier County adopted by Ordinance No. 90-24 on March 21, 1990, as codified in the Collier County Land Development Code, Ordinance No. 91-102, both as amended.
Agreement: This stipulated settlement and compliance agreement.
Comprehensive Plan or Plan: The Collier County Growth Management Plan, as adopted by Ordinance No. 89-05 on January 10, 1989, as amended.
DOAH: The Florida Department of Administrative Hearings.
Final Order: The Final Order dated August 27, 1992, issued by DOAH arising from the hearing held pursuant to Section 120.57(1), Florida Statutes, in the above-captioned cases, and the Final Order dated August 20, 1992 issued by the Department arising from the same hearing.
Consistent: Consistent with, furthers and fully implements the Comprehensive Plan, as amended.
In compliance or into compliance: Consistent with Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Section 187.201, Florida Statutes, the applicable regional policy plan, and Chapter 9J-5, Florida Administrative Code.
Petition: The petitions for administrative hearing and relief filed in this case.
Remedial Amendment: An amendment to the Comprehensive Plan or support document, including its exhibits, which the local government must adopt in order to be in compliance; and an amendment to the land development regulations which the local government must adopt pursuant to Section 163.3202(2)(g), Fla. Stat., in order to be consistent. Remedial amendments adopted pursuant to this agreement must, in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this agreement or be otherwise acceptable to the Department.
Sanctions: The remedial actions and sanctions permitted, described, specified or imposed by the Administration Commission pursuant to Section 163.3213(6) and 163.3184(11)(a) and (b), Florida Statutes.
Support Document: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the plan.
Entire Agreement. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this document.
Approval by Governing Body. This agreement has been approved by the County's governing body at a public hearing. This agreement has been executed by the appropriate officer as provided in the local government's charter or other regulations.
Changes in Law. Nothing in this agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence. If the statute or administrative regulation requires lower standards than those required by this agreement, the County shall have the option, in its sole discretion, to maintain the higher standards in this agreement or adopt the minimum standards required by the statute or regulation.
Other Persons Unaffected. Nothing in this agreement shall be deemed to affect the rights of any other person under the law.
Attorney Fees and Costs. Each party shall bear its own costs, including attorney fees.
Effective Date. This agreement shall become effective upon the last date of signing by the parties, subject to approval by the Administration Commission.
Not Establishing Precedent. The parties enter into this agreement in a spirit of cooperation, and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of, or related to the APFO, the comprehensive plan and the above captioned actions. The acceptance of provisions for purposes of this agreement is part of a negotiated agreement
affecting many factual and legal issues and is not an endorsement of, or does not establish precedent for, the use of these provisions in any other circumstances or by any other local government.
Department Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act.
Negotiation of Agreement. The parties filed petitions in this case to find the APFO inconsistent with the comprehensive plan or to find the comprehensive plan not in compliance. Subsequent to the petitions, the hearing and the Final Order in this case, the parties conferred and agreed to resolve the issues in the petitions, the hearing and the Final Order, and all issues pending before the Administration Commission in this case. It is the intent of this agreement to resolve fully all issues between the parties in this proceeding and any proceedings arising out of this proceeding and to stipulate to recommended remedial actions and sanctions to resolve the finding of inconsistency.
Administration Commission Approval. The parties agree to recommend this agreement to the Administration Commission as full and complete settlement of all remedial actions, sanctions, claims and issues, whatsoever, between the parties in this proceeding and the Administration Commission, and each agree to use its best efforts to obtain approval of this agreement by the Administration Commission and an Order by the Administration Commission in accordance with this agreement. In the event that the Administration Commission does not approve the terms of this agreement and incorporate them in its Order, this agreement shall become null and void and be of no further force and effect. This agreement shall be filed with the Administration Commission by the Department after execution by the parties.
Legal Effect of Agreement. This agreement constitutes a stipulation that if the remedial amendments described herein are accomplished, the comprehensive plan will be deemed in compliance, and the APFO will be deemed consistent with the comprehensive plan.
Remedial Amendments to be Considered for Adoption. The County agrees to consider for adoption by formal action of its governing body all remedial amendments described herein no later than the time period provided for in this agreement.
Adoption or Approval of Remedial Amendments. The remedial amendments to the comprehensive plan shall be considered by the County and made in conjunction with the next available remedial or other comprehensive plan amendment cycle with transmittal by the County to the Department in any event on or about June 1, 1993, and shall otherwise follow and be in accordance with the timing and procedures of Ch. 163, Part II, Fla. Stat., and the rules promulgated thereunder. On or before October 1, 1993, the County shall consider for adoption all remedial amendments to the APFO described herein. This shall be done in the manner otherwise required for adoption of land development regulations by the County. Within ten (10) working days after adoption of the remedial land development regulation amendments, the County shall transmit a copy of the remedial amendments to the APFO to the Department and to any other parties in this proceeding. The remedial amendments to the APFO shall be transmitted to the Department along with a letter which describes the remedial amendment adopted for each part of the APFO as amended, including references to specific portions and pages, no later than the transmittal time described above.
Review of Remedial Amendments. Within forty-five (45) days after receipt of the adopted remedial amendments to the comprehensive plan, and subsequently within forty-five (45) days after receipt of the adopted remedial amendments to the APFO, the Department shall confirm in writing to the County that the adopted remedial amendments, respectively, are either 1) in accordance with this agreement and therefore in compliance and consistent; or 2) not in accordance with this agreement and therefore not in compliance and inconsistent. In the event that the remedial amendments are not in compliance and inconsistent, the Department shall notify the County of the deficiencies and the corrective action that is needed to make the remedial amendments to the APFO consistent with the remedial actions to the comprehensive plan and this agreement. In the event that the County does not then take corrective action within sixty (60) days of receipt of notice from the Department to make the remedial amendments to the APFO consistent with the remedial amendments to the comprehensive plan and this agreement, the Department may pursue the enforcement provisions before the Administration Commission as set forth herein.
Language to be Included in Remedial Amendments. The parties have agreed to recommend to the Administration Commission that the County adopt remedial amendments to the comprehensive plan consistent with and substantially similar in concept, content and intent to the requirements found in Rule 9J- 5.0055, F.A.C., and that the County adopt remedial amendments to the APFO consistent with the amended comprehensive plan.
Agreement Regarding Sanctions. Petitioners and intervenors and the Department agree not to seek sanctions against Collier County in connection with Citizens Political Committee Inc. and James K. Kessler v. Collier County and Department of Community Affairs, Case No. 92-03191 (Fla. 1st DCA) provided Collier County carries out in full the terms of this agreement, including the Comprehensive Plan and APFO remedial amendments necessary to comply with Rule
9J-5, F.A.C. Petitioners, intervenors and the Department agree that full compliance with the terms of this agreement will constitute all necessary sanctions and remedial action in connection with Case No. 92-03191.
Enforcement Provisions. The parties have agreed to recommend to the Administration Commission the following provisions for inclusion in the Order of the Administration Commission to ensure adoption and enforcement by the County of this agreement. No other sanctions against the County shall be imposed, except in accordance with the following provisions:
The Administration Commission shall not impose sanctions against the County at this time, but shall retain jurisdiction of this matter such that failure by the County to amend the comprehensive plan and the APFO as provided in this agreement, would subject the County to direct review by the Administration Commission; and
In the event such alleged failure to adopt is reviewed by the Administration Commission, then the Commission may at that time consider the imposition of sanctions upon the County as authorized by Section 163.3184(11), Fla. Stat., commensurate with the severity of such failure and on a prorated basis, with sanctions for a failure to adopt by the County commencing and accruing after August 27, 1992, the date of the Hearing Officer's Final Order in DOAH Case No. 91-0858-GM.
Enforcement Review Provisions. The Administration Commission shall proceed under paragraphs 18(a) and (b) above upon the recommendation of the Department that the County has failed to amend the comprehensive plan and the APFO in a manner consistent with this agreement, which recommendation shall be based upon submission of a certified copy of the remedial amendments to the Department for review for consistency with the terms of this agreement, no later than the time period set forth in paragraphs 14 and 15 hereof. The parties to this agreement shall have standing in the enforcement proceedings before the Administration Commission described herein.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their undersigned officials as duly authorized.
DEPARTMENT OF COMMUNITY AFFAIRS
Linda Loomis Shelley Secretary
Date: 04-01-93
Assistant General Counsel Attorney
BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY FLORIDA
Attest:
Burt L. Saunders, Chairman Dwight E. Brock, Clerk
Approved as to form and legal By: sufficiency Deputy Clerk
03-16-93
MARJORIE M. STUDENT
Assistant County Attorney
WILLIAM W. MERRILL III
Attorney for Collier County
SEWELL H. CORKRAN
JAMES K. KESSLER
THE CITIZEN'S POLITICAL COMMITTEE, INC.
ROBERT APGAR
Attorney for Citizens and Kessler
| Issue Date | Proceedings |
|---|---|
| Apr. 15, 1993 | Final Order filed. |
| Aug. 27, 1992 | CASE CLOSED. Final Order sent out. Hearing held July 22-26, 1991. |
| Jul. 01, 1992 | (Petitioners) Motion for Substitution of Counsel filed. |
| Jan. 13, 1992 | (Respondent) Final Order filed. |
| Jan. 10, 1992 | Proposed Final Order of The Department of Community Affairs filed. (From Stephanie M. Callahan) |
| Jan. 10, 1992 | Recommended Order of Petitioners, the Citizen's Political Committee, Inc. and James K. Kessler filed. |
| May 20, 1991 | Amended Notice of Hearing (set for July 22-26, 1991; 9:00am; Naples) sent out. |
| Apr. 12, 1991 | Order Consolidating Cases and Resetting Hearing for DOAH Case No. 90-4545GM and Portion of DOAH Case No. 90-8101GM sent out. (90-4545GM, 90-8101GM, 91-0858GM & 91-0994GM are consolidated; hearing set for July 22-26, 1991). |
| Apr. 03, 1991 | Respondent Collier Countys Response in Opposition to Petition for Leave to Intervene of The Citizens Political Committee and James K. Kessler filed. |
| Apr. 02, 1991 | cc: Respondent Collier Countys Response in Opposition to Petition forLeave to Intervene of The Citizens Political Committee and James K. Kessler filed. |
| Mar. 29, 1991 | Amended Petition Re: Standing and Challenge to LDR of APFO No. 90-24 by Petitioner Sewell H. Corkran filed. |
| Mar. 22, 1991 | (Intervenors) Petition for Leave to Intervene (Citizens and James Kessler) filed. |
| Mar. 20, 1991 | Respondent Collier Countys Answer and Affirmative Defenses to AmendedPetition of Citizens Political Committee and James K. Kessler for Formal Administrative Hearing filed. |
| Mar. 19, 1991 | Petitioners Notice of Service of Answers to Respondent Collier Countys First Set of Interrogatories to Petitioners filed. |
| Mar. 01, 1991 | Response to Prehearing Order filed. |
| Feb. 26, 1991 | (Petitioners) Notice of Taking Deposition (4) filed. |
| Feb. 21, 1991 | (Collier County) Preliminary Witness List filed. |
| Feb. 20, 1991 | (Respondent) Preliminary Witness List filed. |
| Feb. 19, 1991 | Notice of Service of Interrogatories; Respondent Collier Countys First Set of Interrogatories to Petitioners filed. |
| Feb. 19, 1991 | Respondent Collier Countys First Request for Production of Documents to Petitioners filed. |
| Feb. 19, 1991 | Notice of Appearance of Counsel filed. |
| Feb. 05, 1991 | Petitioners, Citizen's Political Committee, Inc. and James K. Kessler's, Response to Collier County's Motion in Opposition/Motion to Dismiss filed. (From Robert C. Apgar) |
| Feb. 01, 1991 | (Petitioners) Notice of Service of Interrogatories filed. (From Robert C. Apgar) |
| Feb. 01, 1991 | (Petitioners) Request for Production of Documents filed. (From RobertC. Apgar) |
| Jan. 31, 1991 | Respondent Collier County's Motion in Opposition/Motion to Dismiss inResponse to Petition For Formal Administrative Hearing filed. (from Marjorie M. Student) |
| Jan. 31, 1991 | Respondent Collier County's Motion in Opposition/Motion to Strike in Response to Petitioner for Formal Adminsitrative Hearing; Respondent Collier County's Motion in Opposition/Motion For More Definite Statement in Response to Peittion For Formal Administr |
| Jan. 31, 1991 | CC Letter to REM from Marjorie M. Student (re: County's Motion in Opposition) filed. |
| Jan. 29, 1991 | Order Granting Leave to File Third Amended Petition and ConsolidatingCases sent out. |
| Jan. 29, 1991 | Order Correcting Earlier Order of Consolidation sent out. Consolidated cases are: 90-4545GM & 90-8101GM. |
| Jan. 29, 1991 | Respondent Collier County's Motion in Opposition to Petitioners Motion to Consolidate (w/90-4545) filed. |
| Jan. 28, 1991 | Respondent Collier County's Motion in Opposition/Motion to Dismiss inResponse to Petition for Formal Administrative Hearing filed. |
| Jan. 28, 1991 | Respondent Collier County's Motion in Opposition/Motion to Strike in Response to Petition for Formal Administrative Hearing; Respondent Collier County's Motion in Opposition/Motion for More Definite Statement in Response to Petition for Formal Administrat |
| Jan. 17, 1991 | (Petitioenrs) Motion to Consolidate w/case no. 90-4545GM filed. (FromRobert C. Apgar) |
| Jan. 11, 1991 | Letter to REM from M. Student (Collier County never served with Petition) filed. |
| Jan. 10, 1991 | cc Letter to R. Apgar from M. Student (re: petition served upon County) filed. |
| Jan. 09, 1991 | Letter to REM from Marjorie M. Student (re: Petition filed by Citizen's Political Committee & James K. Kessler) filed. |
| Jan. 07, 1991 | PPF's sent out. |
| Dec. 24, 1990 | Agency referral letter; Petition for Formal Administrative Hearing; Determination of Consistency and Order on Motion to Dismiss and other supporting documents attached filed. |
| Dec. 20, 1990 | Petition for Formal Administrative Hearing; Determination of Consistency and Order on Motion to Dismiss and other supporting documents attached filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 27, 1992 | DOAH Final Order | Sanctions recommended because land development regulation inconsistent with and fails to implement plan provision for conditional building permits. |
