The Issue The sole issue to be addressed is whether the Petition to establish the Town Center at Palm Coast Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioners are seeking the adoption of a rule by the Commission to establish a community development district ("CDD") proposed to consist of approximately 1,600 gross acres located within the boundaries of incorporated areas of Palm Coast. The suggested name for the proposed District is the Town Center at Palm Coast Community Development District. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services, which are presently expected to be provided to the lands within the District, was included in the Petition. The sole purpose of this proceeding is to consider the establishment of the District as proposed by the Petitioners. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioners' Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Livingston testified that he reviewed the contents of the Petition and approved its findings. Livingston also generally described the exhibits to the Petition. Livingston testified that the Petition and its exhibits are true and correct to the best of his knowledge. Gaylord testified that he assisted in the preparation of portions of the Petition and its exhibits. Gaylord also generally described Exhibits 5 and 6 to the Petition which he or his office had contributed to and stated that they were true and correct to the best of his knowledge. Fishkind testified that he had prepared Exhibit 10 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Fishkind also testified that the SERC submitted as Exhibit 10 to Petitioners' Exhibit A was true and correct to the best of his knowledge. Livingston testified that the consent by the owner of lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. Londeree testified that he had prepared Exhibits I-1 through I-3 and briefly described each exhibit. Londeree testified that Exhibits I-1 through I-3 were true and correct to the best of his knowledge. Based on the foregoing, the evidence shows that the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local government comprehensive plan. Londeree reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Londeree also reviewed the proposed District in light of the requirements of the City of Palm Coast Comprehensive Plan. From a planning and economic perspective, three (3) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas that have the fiscal abilities and service capacity to accommodate growth. Section 187.201(16), Florida Statutes. It is relevant because CDDs are designed to provide infrastructure services and facilities in a fiscally responsible manner to the areas which can accommodate development. The evidence shows that the establishment of the Town Center at Palm Coast CDD will not be inconsistent with this goal because the District will have the fiscal capability to provide the specified services and facilities within its boundaries. Subject 18, Public Facilities, relates to (i) protecting investments in existing public facilities; (ii) providing financing for new facilities; (iii) allocating the costs of new public facilities on the basis of the benefits received by future residents; (iv) implementing innovative, but fiscally sound techniques for financing public facilities; and (v) identifying and using stable revenue sources for financing public facilities. Section 187.201(18), Florida Statutes. The evidence shows that the establishment of the Town Center at Palm Coast CDD will further these State Comprehensive Plan Goals and Policies. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. Section 187.201(21), Florida Statutes. The evidence shows that the proposed CDD will be consistent with this element because the proposed CDD will continue to: (i) cooperate with other levels of Florida government; (ii) be established under uniform general standards as specified in Chapter 190, Florida Statutes; (iii) be professionally managed, financed, and governed by those whose property directly receives the benefits; (iv) not burden the general taxpayer with costs for services or facilities inside the District; and (v) plan and implement cost-efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Based upon the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. In 2000, the City of Palm Coast approved a Comprehensive Plan Amendment bringing the Petitioners' property into compliance with the City's adopted Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and can be expected to further the goals provided. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Londeree, Fishkind, and Gaylord. The lands that comprise the proposed District will consist of approximately 1,600 gross acres, located within the borders of incorporated Palm Coast. All of the land in the proposed District is part of a planned community included in the Town Center at Palm Coast Development of Regional Impact (DRI), which is currently under review. "Functional interrelated community" means that the community development plan requires that the residents and property owners will be provided those facilities that are the necessary services for a mixed-use community. These facilities include streets, stormwater ponds, water and sewer service, street lighting, sidewalks, bike paths and associated landscaping. All of these elements will tie the land uses of the community together to provide a unity of design and function for the community. The community facilities that are provided require a long-range development plan that addresses the management, scheduling, funding, construction, and maintenance of the required infrastructure for the growth and development of the community. The size of the District as proposed is approximately 1,600 gross acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The proposed District provides for a cost-effective and efficient design and delivery of the required infrastructure and the future maintenance of same. The Petitioners are developing all the lands within the District as a single master-planned community. All of these lands will be governed by the Town Center at Palm Coast Development of Regional Impact Development Order to be issued by the City of Palm Coast, Flagler County, Florida. The evidence shows that from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. It is anticipated that the CDD will issue 30-year special assessment bonds to pay for the major infrastructure improvements. Expenses for the operations and maintenance are expected to be paid through annual maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Two types of alternatives to the use of the District were identified. First, the City of Palm Coast might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a home owners' association. A community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. A community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because the District will provide the necessary means to maintain the project consistent with the intent of the original design. Alternative approaches, such as dedicating the area to another municipality, may result in conditions deviating from the original intent of the project. A localized agency (District) that is focused on maintaining and governing the area will help to ensure that the design and intent for which the project was developed and presented to the public will be maintained. The evidence shows that from planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. Currently, the land within the proposed District boundaries is undeveloped and, therefore, cannot duplicate the local or regional facilities. The facilities within the District are designed to meet, and in some areas exceed, the current design requirements by local municipalities and are, therefore, compatible with the capacities and uses of the existing regional community development facilities and services. Therefore, the evidence shows that the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As previously noted, from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District needs the basic infrastructure systems to be provided. From planning and economic perspectives, the area that will be served by the proposed District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Town Center at Palm Coast Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District--the State of Florida and its citizens, the County and its citizens, the City and its citizens, the Petitioners, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify, but nonetheless substantial. Administrative costs incurred by the City of Palm Coast and Flagler County related to rule adoption should be minimal. Benefits to the City of Palm Coast and Flagler County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains an SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioners have complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that Flagler County and City of Palm Coast were paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioners to publish notice of the local public hearing in a newspaper of general circulation in Flagler County and the City of Palm Coast for four successive weeks prior to the hearing. The notice was published in the legal Advertisement section of the Flagler/Palm Coast News-Tribune, a newspaper of general circulation, for five (5) successive weeks, on June 29, July 6, July 13, July 20, and July 27, 2002. Flagler County's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and the $15,000.00 filing fee with Flagler County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Flagler County Commission held a public hearing on May 6, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on May 6, 2002, and after considering the factors enumerated in Section 190.005(1)(e), Florida Statutes, and the representations in the SERC, the Flagler County Commission adopted Resolution No. 2002- 50, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District. Palm Coast's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and $15,000.00 filing fee with the City of Palm Coast prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the City of Palm Coast held a public hearing on June 4, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on June 4, 2002, the City of Palm Coast Commission adopted Resolution No. 2002-18, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Town Center at Palm Coast Community Development District as requested by the Petitioners by formal adoption of the proposed rule. DONE AND ENTERED this 27th day of August, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2002. COPIES FURNISHED: Michael Chiumento, III, Esquire Chiumento & Associates, P.A. 4 Old Kings Road, North, Suite B Palm Coast, Florida 32137 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Charles Canady, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Exhibit 1 Petitioners' Witnesses at the Public Hearing William I. Livingston, President Florida Landmark Communities, Inc. One Corporate Drive, Suite 3A Palm Coast, Florida 32137 David R. Root 14 Fern Court Palm Coast, Florida 32137 Robert B. Gaylord Singhofen & Associates 6961 University Boulevard Winter Park, Florida 32792 Henry F. Fishkind, Ph.D. Fishkind & Associates 11869 High Tech Avenue Orlando, Florida 32817 Robert D. Londeree Planning and Design Post Office Box 1077 Windermere, Florida 34786 Exhibit 2 List of Petitioners' Exhibits Letter Description Petition for Rulemaking to Establish a Uniform Community Development District (Petition with ten (10) Exhibits) Composite Exhibit -- Prefiled Testimony of William I. Livingston (10 pages) General Location Map Vicinity Map showing District boundaries Metes and Bounds Description of District boundaries B-4 Written Consent of Landowners Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetable Conceptual Site Plan showing public and private uses B-8 Land Use Plan Resolution No. 2002-18, of the City Council of the City of Palm Coast endorsing the formation of the Town Center at Palm Coast CDD Resolution No. 2002-50, of Flagler County, Florida's County Commissioners demonstrating its support of the formation of the Town Center at Palm Coast CDD Proof of Publication from Flagler/Palm Coast News- Tribune Prefiled Testimony of David R. Root (5 pages) Prefiled Testimony of Robert B. Gaylord (6 pages) Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetables Prefiled Testimony of Henry F. Fishkind, Ph.D., (6 pages) Statement of Estimated Regulatory Costs for the Town Center of Palm Coast CDD I Prefiled Testimony of Robert D. Londeree (9 pages) I-1 Town Center at Palm Coast Development of Regional Impact Application for Development Approval Town Center at Palm Coast Development of Regional Impact Application for Development Approval Response to Request for Additional Information (Sufficiency Response) Petitioners' FLUM Amendment for Town Center at Palm Coast Application
Findings Of Fact South Palm Beach Utilities Corporation is a private provider of water and sewer services in Palm Beach County, Florida. It is presently operating within a specified service area according to a certificate issued by the Public Service Commission. The utility is seeking to expand its service area north of the present boundaries, and has filed various notices of its intention with the Public Service Commission. As to some of these notices, no protests were filed, and the utility has commenced preliminary engineering planning activities to provide water and sewer lines to those areas. Palm Beach County has filed timely protests with respect to four off the parcels to which the utility is proposing to extend its certified service area. These four properties have been called the "Atlantic," "Mitchell," "Snow," and "Benson" properties. In its notices, the utility described the "Atlantic" property as follows: Tracts 49 thru 56 inclusive; 73 thru 88 inclusive and 105 thru 120 inclusive, in Section 21; and Tracts 9 thru 24 inclusive; 41 thru 56 inclusive; 73 thru 88 inclusive; and 105 thru 120 inclusive, in Section 28, all as shown on Palm Beach Farms Company Plat No. 1, as recorded in Plat Book 2, Pages 26, 27 & 28, Public Records of Palm Beach County, Florida, together with the West Half of the East Half of Section 21 and the West Half of the East Half of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida. EXCEPTING therefrom the dedicated public right of ways of record, as shown on the said Palm Beach Farms Company Plat No. 1, and the Plat of Delray Roads (containing 10.9500 acres) and the following Lake Worth Drainage District right of ways: LWDD Canal L-34: Beginning at a point where the Southerly line of a public right of way, 120.0 feet wide known as Del Ray West Road (State Road 806) intersects the North & South Quarter Line of Section 21, Township 46 South, Range 42 East, Palm Beach County, Florida, said point being S 1 degree 54' 34" E, 34.13 feet from the North Quarter Corner of said Section 21; run thence along said Quarter Section Line S 1 degree 54' 34" E, 90.02 feet; thence N 89 degrees 18' 11" E, 1342.63 feet to the East line of the West Half of the East Half of said Section 21; thence along said East Line N 2 degrees 06' 02" W, 90.03 feet to the South Line of said Del Ray West Road; thence along said South Line S 89 degrees 18' 11" W, 1342.33 feet to the Point of Beginning, Containing 2.7737 acres; LWDD Canal L-35: The South 10.0 feet of the West Half of the Northeast Quarter; the North 80.0 feet of the West Half of the Southeast Quarter; the South 15.0 feet of the Northwest Quarter (less the West 55.0 feet); and the North 75.0 feet of the Southwest Quarter (less the West 55.0 feet), in Section 21, Township 46 South Range 42 East, Palm Beach County, Florida, Contain- ing 8.2207 acres; LWDD Canal L-36: The South 15.0 feet of the West Three-Quarters of Section 21 (Less the West 55.0 feet); and the North 75.0 feet of the West Three-Quarters of Section 28 (less the West 40.0 feet); all in Town- ship 46 South, Range 42 East, Palm Beach County, Florida, Containing 8.2672 acres; LWDD Canal L-37: The South 40.0 feet of the North Half of the West Three-Quarters; and the North 50.0 feet of the South Half of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida, (Less the West 40.0 feet Thereof), Containing 8.1733 acres; LWDD Canal L-38: The South 105.0 feet of the West Three-Quarters of Section 28, Township 46 South, Range 42 East, Palm Beach County, Florida (less the West 40.0 feet thereof), containing 9.6120 acres; and LWDD Canal E-3: The West 55.0 feet of the South Half, and the West 55.0 feet of the South 664.91 feet of the North Half of Section 21; and the West 40.0 feet of Section 28, all in Township 46 South, Range 42 East, Palm Beach County, Florida, con- taining 9.2135 acres. Containing a net acreage of 816.1290 acres. The utility described the "Mitchell" property as follows: All of Tracts 65 to 128 inclusive, Section 29, Township 46, South, Range 42 East, (less 30.59 acres sold to Florida State Turnpike Authority and more particularly described in Deed Book 1104, Page 577), The Palm Beach Farms Co. Plat No. 1, according to the Plat thereof on file in the Office of the Clerk of the Circuit Court in and for Palm Beach County, Florida, recorded in Plat Book 2, Pages 26 to 28. The "Snow" Property is described as follows: The North half of Sections 31 & 32, Town- ship 46 South, Range 42 East, Palm Beach County, Florida, and also known as Tracts 1 through 60, Block 71 and Tracts 1 through 64 of Block 70, Palm Beach Farms Company, Plat No. 3, as recorded in Plat Book 2, Page 52, Palm Beach County, Florida. At the hearing, the utility amended its notice with respect to the "Snow" property to withdraw its intention to provide service to the north half of Section 32, or that property east of Lyons Road. As to the property west of Lyons Road, being the north half of Section 31, the utility maintains its intention. The "Benson" property has been described by the utility as follows: Tracts 65 through 70, 91 through 102, and 123 through 128, Block 70, Palm Beach Farms Company, Plat No. 3, Plat Book No. 2, as recorded on Page 52 wholly within the South Half of Section 31, Township 46 South, Range 42 East, Palm Beach County, Florida. [This finding is determined from a stipulation of the parties as stated on the record at the final hearing, and from Exhibit 1.] The South Palm Beach Utilities Corporation is a fit provider of water and sewer service. No issue has been raised with respect to the quality of the service provided by the utility, and it is under no citations from any government agency. The utility has the financial integrity and engineering capability to provide service to the four properties involved in this proceeding. With respect to each of the four properties, the utility has provided the notices required by statute. Extension of the utility's service area to include the four properties would not result in a duplication of any existing facilities. No other utility is providing service to the area. In its long-range plans, the County envisions providing service to the area, but it does not provide service now, and would not be in a position to provide service for at least three to five years. The owners of the four proporties have proposed developments which would require provision of water and sewer service. [This finding has been determined from stipulations stated by the parties on the record at the final hearing.] In accordance with the "Local Government Comprehensive Planning Act of 1975" (Florida Statutes Section 163.3161, et seq.), Palm Beach County has promulgated a comprehensive plan which includes a "sewer, potable water, drainage and solid waste element" and a "land use plan element." The land use element of the comprehensive plan provides that the areas where South Palm Beach Utilities Corporation is seeking to expand its territory will be set aside for low density development. The County contends that expansion by the utility into these areas would allow for a level of development which is not in harmony with the land use element of the comprehensive plan. The evidence does not support this contention. No specific evidence was presented as to development densities proposed by developers, and it does not appear that allowing the utility to expand its service area would as a factual or legal matter allow for development of any kind. [This finding is determined from the testimony of the witnesses Garbrick and King, and from Exhibits 3, 4 and 5.] Extension of the South Palm Beach Utilities Corporation service area into the four properties at issue would conflict with the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan. Under this element of the comprehensive plan, which is in harmony with an overall management plan to treat wastewater pollutants that the County has developed in accordance with Federal funding requirements ("201 Plan"), the County envisions that it would provide sewer service to the "Atlantic" and "Mitchell" properties through a central wastewater treatment facility. Plans for providing such service have been made on a long-range basis, and the County is in the process of refining the plans so that it can obtain Federal funding. Removal of the "Atlantic" and "Mitchell" tracts from the area that the County proposes to serve through the central facility would not be in accordance with the "201 Plan." Removal of the properties would reduce the service area of that central facility, and could affect the size of the central facility, and funding. Removal of the properties would furthermore be contrary to the plans because of the introduction of a wastewater treatment facility other than the central facility. Both the "sewer, potable water, drainage and solid waste element" of the County's comprehensive plan and the "201 Plan" are long range. The County is not presently prepared to offer service to the properties at issue, and will not be prepared to do so for some time. This finding is determined from the testimony of witnesses Garbrick and King, the stipulation of the parties stated on the record at the final hearing, and Exhibits 2, 3 and 5.] While the evidence establishes that extension of the South Palm Beach Utilities Corporation's service area would on its face conflict with the County's comprehensive plan, the evidence does not establish that the conflict would adversely affect the plan. The evidence does not reveal that provision of services by facilities other than the County's central system would render the central system less feasible. While it was speculated that the central system might need to be reduced in size as a result, and that the rate base for it would be lessened in an unspecified amount, no competent evidence to these effects has been presented. [This finding is determined from the record as a whole.]
The Issue The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
Findings Of Fact Parties The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach. The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan). The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. Standing The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999. During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999. The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes. The County Charter The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002). With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final authority over the approval, or recertification, of municipal land use plans and amendments. Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section 11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances. Flexibility Units/Reserve Units Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County. In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning. The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida. The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map. The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners. Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP. "Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units. Hallandale contains flexibility zones 93 and 94. Review of the Operation of Flexibility Rules In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools. The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use. The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report. Coastal Densities An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre. Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way. In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels. The Hallandale Ordinance In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units. On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council. The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan. The DCA found Hallandale's HD-2 ordinance in compliance. The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan. The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan. The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives. The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process. The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up to only 25 dwelling units per acre is not economically advantageous. The Proposed Amendment The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan. During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway. In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County. With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units. Area A This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields. In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean. CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre. In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA. Area C This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor. In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre. Area D This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required. At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area. Application to Hallandale Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre. Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan: Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services; Goal 13.00.00, on maximizing intergovernmental coordination and cooperation; Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre; Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment; Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities. Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes: Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development; Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity; Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities. Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions. Evolution of the Proposed Amendment On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres. As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan. Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999. Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway. The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative. The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean. The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved. Eastward Ho! "Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council. Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas. The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad. As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County. Area B does not lie within the Eastward Ho! boundaries. In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA. The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment. In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns. In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent. The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and $135.6 in sewer capital costs. As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment. Local Mitigation Strategy Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes. In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B. In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA. The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment. Consistency with the Broward County Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions of the Broward County Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads: Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist. The BCLUP does not define "urban sprawl." The Department of Community Affairs has a rule that defines "urban sprawl" as meaning: . . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low- intensity or low density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided.... Rule 9J-5.003(134), Florida Administrative Code. Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered. The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment. Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County. Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows: GOAL 13.00.00 MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES. POLICY 13.01.08 The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans. The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08. Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment. Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows: GOAL 17.00.00 DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES. POLICY 17.02.02 Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s). In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment. The Amendment is not inconsistent with Policy 17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B. Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County. Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable. Objective 9.07.00 reads: Protect identified floodplains and areas subject to seasonal or periodic flooding. The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas. Consistency with Section 163.3177(11)(c) The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads: It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization. To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code. The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management. The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole. Consistency with the State Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives. The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5. Policy (16)(b)(5) reads: Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy. The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities. The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities. The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2003. COPIES FURNISHED: Mark Goldstein, Esquire City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Jose R. Gonzalez, Esquire Broward County Attorney's Office 115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Larry A. Moore, was certified as a law enforcement officer and corrections officer in Florida. The Petitioner, Criminal Justice Standards and Training Commission, (Commission), is the state agency responsible for the certification of law enforcement and corrections officer in Florida. During the months of November and December, 1987, Respondent was employed as a police officer by the City of Riviera Beach, Florida. In December, 1987, Officer Chris Hamori was a traffic officer with the same department. He had been issued certain equipment for his personal use on duty in which he had placed his personal identification mark. The equipment, primarily a windbreaker, a raincoat, a flashlight and other items necessary for traffic accident investigation, was kept in the trunk of the patrol car signed out to him. He was the only operator of that vehicle, though numerous department cars, all of the same make and model, were identically keyed. Therefor, any key for any of the vehicles would open and operate any of the other identical vehicles. On December 8, 1987, Officer Hamori was assigned to teach a class at a junior college in the next county to the south. When he got there, it was raining and he went to the trunk to get his raincoat but found it missing. He had to get to class and so did not search the trunk at that time. During the mid-class break, however, he again went to the car to make a more thorough search and discovered that his trunk had been rifled and not only his raincoat but his windbreaker as well were missing. There was no evidence of breaking into the trunk. Officer Hamori reported the theft the next morning and went to the Department's property custodian to let them know as well. At that time he was issued another raincoat and windbreaker which, according to the property custodian, Ms. Bell, had just been turned in by the Respondent who was leaving employment with the Department. Officer Hamori noted, from the lack of patches on the windbreaker, that it was much like his and upon further checking, noted that his name appeared on the underside of the right sleeve where he had placed it when the garment was initially issued to him. He also noted that the raincoat had his name written on the inside of the placket where he had placed it when the coat was initially issued to him. From this, he determined that these two garments were the ones taken from his car, without his knowledge or permission, the previous day. Ms. Bell was quite certain that the items in issue here had been turned in to her that same day by the Respondent. When he brought them in, she cleared his property account and placed the items off to the side. She had not had time to place them back into stock. Notwithstanding Respondent's urging that other individuals than Ms. Bell had access to the property storage area, she indicated that no one else turned in any items of that nature that day. Respondent was the only one to turn in equipment that day and, as was stated, she had not put it back into stock when Hamori came in to ask for a reissue. It is found, therefore, that the property turned in by Respondent was the property issued to Officer Hamori and was the same property which had been taken from him without permission. Respondent urges that numerous people could have gotten into Respondent's patrol car and taken his property because of the large number of keys out that would fit it. This is true, but the evidence is uncontrovertible that the property turned in by the Respondent was the property taken from Officer Hamori's car the day before and there is some evidence in fact, that Respondent indicated to Sergeant Lobeck, his immediate supervisor, that he needed some equipment, including a raincoat, to turn in when he left the Department's employ. It is found, therefore, that Respondent is the individual who took the property in question from Officer Hamori's car. Had this not been discovered, the Department would have been out the cost of the equipment since, because it had been stolen from Hamori, Hamori would have been released from liability for it. Only the property initially issued to Respondent was not returned, and though he ultimately paid for it, at the time in issue, he took it from Hamori without authority. Toward the end of 1988, Assistant Chief of the West Palm Beach Department, attempted to locate the Respondent, then a patrolman with that agency, due to a schedule change. At that time, Respondent was not where he was supposed to be and had not advised the Department of his whereabouts. He was finally located at the Mt. Vernon Motor Lodge in West Palm Beach. Discussions with the manager of that facility indicated that the Respondent had moved out without paying the full amount of the room rent owed and had left his room in a messy and unclean condition. Abel Menendez was the manager of the Mount Vernon Motor Lodge during the period September through November, 1988. During that time, Respondent, who represented himself incorrectly as an employee of the Sheriff's office, rented a room at the motel, paying a rate therefor of $135.00 per week. Respondent was to pay his rent in advance and at first did so, but after a while, he began to get behind in his payments and Mr. Menendez had trouble finding him. When it became clear that Respondent could not bring his arrears current, Mr. Menendez agreed that he could make partial payments to catch up, but he never did so. Finally, in November, along with Mr. Fishbein, the motel owner, Mr. Menendez told Respondent he would have to pay up or move out. When Respondent first began to fall behind in his rent, Mr. Menendez contacted representatives of the West Palm Beach Police Department and gave them a summary of the charges owed by Respondent. The last payment made by Respondent was $135.00 on November 11, 1988, which left a balance due of $500.00 which was never paid. Respondent is alleged to have left the motel during the night of November 11, 1988. According to Mr. Menendez, Respondent "destroyed" the room before his departure. Some of his clothes and things were left in the room. The room was examined the following day by Sgt. Chappell, also of the Department, who had gone there to look for the Respondent at the direction of Captain Griffin. This officer observed holes punched in the walls, and trash and dirty diapers in the room. He never located Respondent. Chief Bradshaw subsequently spoke with the Respondent about this situation and based on the facts as he determined them, terminated Respondent's probationary status with the Department and discharged him. In their discussion, Respondent indicated he had an arrangement with the motel manager, but this was only partially true. The arrangement was to pay in installments but Respondent abandoned the room without doing so. He was locked out by the management the following day. Even though Respondent agreed with Chief Bradshaw to make payments of the amounts owed, he may not have done so. As a result, criminal charges were filed against him. The criminal charges were subsequently disposed of by a Deferred Prosecution Agreement entered into by the Respondent and the State in June, 1989. By the terms of that agreement, Respondent agreed to pay off the obligation at a rate no less than $100.00 per month. However, Mr. Moore never paid any money to the motel because, due to a total mixup in the motel's paperwork, they were never able to establish to whom the money was to be paid. As a result, the matter was ultimately disposed of by the State entering a nolle prosequi in the case. Respondent's public defender, Ms. Kretchmer, remembers Respondent's repeatedly indicating he wanted to pay off the obligation, however. Respondent's wife, with whom he was living in the motel prior to their marriage, recalls having offered Mr. Menendez $300.00 the day before the Moores moved out. Mr. Menendez would not take it, however, indicating he wanted to receive it from Respondent. When Respondent came by, she gave him the money and they went to Menendez to pay him but he would accept only $150.00 and told Moore to keep the rest and not worry about it because, due to the fact he was a policeman, they "needed him around there." Shortly thereafter, however, Mrs. Moore heard Mr. Menendez complaining to the police about the amount owed. She claims Moore tried to make payments several times and whenever he would do so, Menendez would get upset. It was her understanding that Menendez was getting pressure from his boss to collect what was due and get the records straight. He mentioned to her that the motel cash account was short and he was being accused of taking the money. There is some evidence that Moore was not the only one having trouble with rent payments at the motel at that time. When he found that out, he decided to move but Mr. Menendez begged him not to go because his presence as a policeman helped in curbing drugs, gambling and prostitution there. Mrs. Moore absolutely denies that she and Respondent ever hid from Mr. Menendez nor did they sneak out during the night. They checked out in broad daylight at 11:45 in the morning with Mr. Menendez standing by. At that time, Menendez threatened to call the police but, according to Respondent, he, Moore did so instead, but could get no one in authority to listen or help him. Even after they left, Moore called and spoke with Menendez several times but was still subsequently arrested on the defraud charge. According to Mrs. Moore, they at no time damaged the room. At the time they left, the motel was fixing the air conditioner which caused some damage, but that's the only damage in the room when they left. Before they left, she cleaned the room so that it was in the same condition when they left as it was when they moved in. Respondent claims that when he began work with the West Palm Beach Police Department he discussed his rent problems with police officials and told them he had an arrangement with the motel to pay off the arrears. He admits he then got behind and when he tried to pay, the figures kept changing because of the absence of rental records. When he left, his disagreement with the motel was over the amount owed. He called the police to get a witness to his request for a firm bill, but by that time, he had already been terminated and the police would not come out. He had already had his discussion with Chief Bradshaw who, he claims, had told him to take care of the bill whatever the amount. He felt this was unfair, however, because he was told to pay whatever was asked regardless of whether he owed it or not. Respondent was ordained and licensed as a minister by the Church of God, 629 5th Street, West Palm Beach, on January 3, 1992. His minister the Reverend Preston Williams has found him to be a nice person and a well mannered person dedicated to his work, who has served with him in the local ministry since 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore; RECOMMENDED that a Final Order be entered in this case, dismissing the allegation of defrauding an innkeeper as alleged in the original Administrative Complaint, finding Respondent guilty of unlawfully taking the property issued to officer Hamori as alleged in the Amended Administrative Complaint, and revoking his certification as a correctional officer and as a law enforcement officer. RECOMMENDED in Tallahassee, Florida this 24th day of April, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1992. COPIES FURNISHED: Gina Cassidy, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Moore 5100 45th Street, Apt. 1-A West Palm Beach, Florida 33401 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the City of South Daytona Beach plan amendment adopted by Ordinance No. 94-05 on May 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, City of South Daytona Beach (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. Petitioner, Resolution Trust Corporation (RTC), is a federal agency now acting as the receiver for Commonwealth Federal Savings & Loan Association, a banking institution taken over by that agency and which owned the property affected by the City's plan amendment. As the owner of property within the City, RTC is an affected person within the meaning of the law and thus has standing to bring this action. The Nature of the Dispute On October 29, 1993, the City received an oral request, which was later confirmed in writing, from Thomas J. Wetherall on behalf of various residential property owners to make an amendment to the City's comprehensive plan to change certain nearby vacant land owned by RTC from a general commercial designation to residential density 1. Under the request, the City would change the use on the eastern part of RTC's 5.6 acre tract of land from commercial to single-family residential use. The specific amendment involves a change in the Future Land Use Map (FLUM). Rather than treating the change as one initiated by a property owner, the City elected to have its city manager file the application on its own behalf. Public hearings were held on the plan amendment on January 19 and February 16, 1994. A transmittal hearing was then conducted by the City on February 22, 1994, and despite objections by RTC, final adoptive action occurred on May 24, 1994, through the enactment of Ordinance No. 94-05. Thereafter, on July 1, 1994, the DCA issued a notice of intent to find the amendment in compliance. On August 5, 1994, RTC filed a petition for an administrative hearing challenging the plan amendment on the ground it was inconsistent with the law in various respects. As clarified at hearing, petitioner contends the amendment (a) violates certain provisions within Section 163.3177, Florida Statutes, (b) is inconsistent with policies 2-1, 2-4, 2-6 and 7-3 of objective 2 of the Future Land Use Element (FLUE) of the plan, and (c) is not supported by adequate data and analysis. The Plan Amendment Petitioner is the owner of a rectangular shaped tract of vacant land more commonly known as the Halifax Center. The land, which totals approximately 5.6 acres, lies between South Ridgewood Avenue (U. S. 1) to the west, Palmetto Avenue to the north, and Palmetto Circle to the east. The property being redesignated (2.6 acres) is the eastern part of the parcel and measures approximately 105 feet deep by 864 feet long. If found to be in compliance, the plan amendment would change the FLUM to redesignate the 2.6 acres of the property from general commercial to residential density 1. This means that instead of having its entire tract of property with a single designated commercial use, RTC would have a split designation, with roughly the eastern half designated as residential. Therefore, the eastern part of the tract could only be subdivided for a few substandard, medium to lower-end, single-family residential homes on lots 105 feet deep. Even then, the amendment does not give consideration to setback and buffer requirements needed between the newly created residential lots and the commercial land directly abutting their rear. Because of this, and the fact that its remaining commercial property has been reduced to a depth of 170 feet, petitioner complains that the value of its property has been substantially reduced, a concern not relevant here, and that the amendment does not conform to the requirements of the law. To the east of the subject property and across Palmetto Circle lie a string of large, single-family lots with upscale homes fronting on the Halifax River. It is this group of property owners who are responsible for the amendment. To the west of the property and across U. S. 1 is found a tract of vacant land designated for professional office land use. To the north of the property is found a combination of multi-family (8-10 units per acre) and general commercial uses. In crafting the amendment, it may be reasonably inferred that the City simply drew an arbitrary line down the middle of RTC's property, leaving what it believed to be was the bare minimum amount of commercial land necessary to comply with the plan. Although the City contended that one of the purposes of the amendment was to further its goal of increasing the amount of single-family housing in the City, it can be reasonably inferred that the true purpose of the amendment was to protect the value of homes located across Palmetto Circle by placing a buffer between their property and the commercial property to the west. Indeed, a City memorandum sent to the City's Land Development Regulation Board on January 12, 1994, stated that the purpose of the change was to "provide a buffer between (the) Ridgewood Avenue commercial zone and existing housing along Palmetto Circle." Is the Plan Amendment in Compliance? The City's comprehensive plan is broken down into elements which conform to the statutory requirements of Chapter 163, Florida Statutes. Under each element are found goals, objectives and policies. As is relevant here, the goal for the FLUE is to "(p)rovide for a well-rounded community as described in the overarching goal." Objective 2 of the FLUE is to: (l)ocate commercial and industrial land uses where transportation access is adequate and conflicts with other land uses can be minimized. Petitioner contends that the plan amendment conflicts with four of the policies which implement objective 2. These are policies 2-1, 2-4, 2-6 and 7-3, which read as follows: 2-1: Locate major commercial and industrial land uses along primary arterials. 2-4: Commercial districts along principal arterials shall be made deep enough to provide options to typical strip development. 2-6: Provide adequate commercial/industrial land for development or redevelopment which will result in a 15 percent increase in taxable value over the next ten years. 7-3: New development shall be required to be compatible with existing development by the arrangement of land use and/or the provision of adequate buffering. As noted earlier, petitioner's tract of land lies between U. S. 1 to the west and Palmetto Circle to the east. Because the western part of petitioner's property lies along Ridgewood Avenue (U.S. 1), a principal arterial road, and will continue to remain general commercial, the amendment is deemed to be consistent with policy 2-1. In other words, that portion of petitioner's property which retains a general commercial designation will be located "along primary arterials," in conformity with policy 2-1, while the remaining portion of the property which fronts on a local road (Palmetto Circle) will be designated residential. The purpose of policy 2-4 is to ensure that commercial districts along principal arterials such as U. S. 1 are deep enough to provide options to typical strip commercial development patterns. This type of development is defined as one or more buildings that are parallel to and facing the primary street with no circulation around the back. Petitioner contends that the plan amendment violates this policy since the remaining portion of its land designated general commercial will only be 170 feet deep in relation to U. S. 1, thereby severely limiting its development options. By reducing the depth of property, as will be done here by the City, the flexibility and creativity for developing petitioner's parcel will be substantially reduced. While respondents' experts opined that the site will be deep enough to accommodate some types of commercial development other than the typical strip pattern, such as freestanding buildings, a restaurant, or even two or three office buildings, the more persuasive evidence shows that anything less than 200 feet in depth eliminates virtually all meaningful development options except a strip shopping center. Since the remaining commercial land along U. S. 1 will not "be made deep enough to provide options to typical strip development," the amendment is inconsistent with policy 2-4. Under policy 2-6, the City's goal is to increase its tax base 15 percent by the year 2000. Since the overall plan went into effect in 1990, the City's tax base has increased approximately 14.5 percent. Petitioner contends that the plan amendment will substantially reduce the value of its property, and the concomitant tax base, and thus the plan amendment is inconsistent with the policy. But even if a reduction in value will occur, there is insufficient evidence to demonstrate that the City's taxable value will not increase by an additional half percent during the next five years. Accordingly, the undersigned finds the amendment to be consistent with policy 2-6. Finally, Policy 7-3 requires that new development be compatible with existing development by the arrangement of land use and/or adequate buffering. Under the proposed plan amendment, the City has created a more integrated residential neighborhood along Palmetto Circle. Also, the redesignated land will serve as a form of buffer between the residential development on the east side of Palmetto Circle and the commercial development on the west side of Palmetto Circle. Although the City asserts that the change in land use should reduce the potential amount of traffic on the local road (Palmetto Circle) that would otherwise increase through commercial development, this assertion is questionable given the fact that no access to the commercial property from Palmetto Circle now exists. Finally, if the amendment becomes operative, the property would be the only single-family residential property on the corridor east of U. S. 1 and west of Palmetto Circle. Collectively, these considerations support a finding that the plan amendment's consistency with policy 7-3 is fairly debatable. Property appraisals are not appropriate data or analysis upon which to base future land use designations. In other words, property values should not control planning decisions. If they did, future land use maps would reflect only high intensity uses, not a balanced community. Except to the limited extent it bears on policy 2-6, evidence presented by petitioner that the plan amendment would decrease the value of the Halifax Center from $610,000.00 to less than $359.000.00 has little, if any, probative value on the other relevant issues. Although petitioner raised other contentions in its initial petition, including one that the plan amendment is not supported by adequate data and analysis, these issues have been deemed to be irrelevant, abandoned, or not supported by sufficient evidence to make a finding in petitioner's favor. In determining whether a plan amendment is in compliance, the DCA looks to consistency with the plan as a whole rather than isolated parts. Therefore, an amendment may be inconsistent with the plan in certain respects, but still be in compliance as a whole unless the inconsistency is determined to be "very important." It may be reasonably inferred from the evidence that the City's policy of discouraging "typical strip development" is an important ingredient in its overall plan. To summarize, the evidence fails to show to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6 and 7-3 of objective 2 of the future land use element of the plan. As to policy 2-4, however, it is found that the City's determination of compliance is not fairly debatable, and thus the amendment is not in compliance in that respect.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of South Daytona Beach comprehensive plan amendment to be not in compliance. DONE AND ENTERED this 19th day of April, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5182GM Petitioner: Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 4. 4-6. Rejected as being a conclusion of law. 7. Partially accepted in finding of fact 9. 8. Partially accepted in finding of fact 8. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 16. 11-12. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially accepted in finding of fact 14. Partially accepted in finding of fact Rejected as being irrelevant since not Rejected as being a conclusion of law. Partially accepted in finding of fact 16. raised as an 13. issue. 19. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Rejected as being irrelevant. Partially accepted in finding of fact 17. Rejected as being irrelevant. Respondent (DCA): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in findings of fact 4, 6 and 7. 5-6. Partially accepted in finding of fact 10. 7-10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. 12-13. Partially accepted in finding of fact 13. 14. Partially accepted in finding of fact 14. 15. Partially accepted in finding of fact 15. 16. Partially accepted in finding of fact 17. Respondent (City): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5. 8. Covered in preliminary statement. 9. Partially accepted in finding of fact 12. 10-11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 15. 13-14. Rejected as being irrelevant. 15. Partially accepted in finding of fact 16. 16. Covered in preliminary statement. 17-18. Partially accepted in finding of fact 17. 19. Covered in preliminary statement. 20. Partially accepted in finding of fact 16. 21. Partially accepted in finding of fact 12. 22. Partially accepted in finding of fact 14. 23. Partially accepted in finding of fact 15. 24-26. Partially accepted in finding of fact 16. 27-28. Partially accepted in finding of fact 9. 29. Partially accepted in finding of fact 17. 30. Covered in preliminary statement. 31. Partially accepted in finding of fact 19. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 19. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Maureen A. Arago, Esquire 1411 Edgewater Drive Suite 203 Orlando, FL 32804 Karen A. Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Scott E. Simpson, Esquire 595 West Granada Boulevard Suite A Ormond Beach, FL 32174
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY F LORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-143 CERTIFICATE OF FILING AND SERVICE LLL ETULIENG AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this YY] day of aula Ford Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 By U.S. Mail The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Catherine D. Reischmann, Esq. Debra S. Babb-Nutcher, Esq. Gregg A. Johnson, Esq. Brown, Garganese, Weiss & D’agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, Florida 32802 creischmann@orlandolaw.net dbabb@orlandolaw.net gjohnson@orlandolaw.net Marcia Parker Tjoflat, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 mpt@papmet.com M. Lynn Pappas, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 Ipappas@papmet.com Linda Loomis Shelley, Esq. Fowler White Boggs & Banker, P.A. P.O. Box 11240 Tallahassee, Florida 32302 Ishelley@fowlerwhite.com Lynette Norr, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us FINAL ORDER NO. DCA 11-GM-143
The Issue The ultimate issue is whether the Applicant, Florida-Georgia Venture Group, is entitled to development orders for its proposed development of regional impact, Hunter's Ridge, in Flagler County and the City of Ormond Beach, Florida.
Findings Of Fact The Petitioner is Florida-Georgia Venture Group, 402 Clifton Avenue, Holly Hill, Florida 32117, and its authorized agent is Thomas L. Durrance, Managing Partner. The Hunter's Ridge project lies within the jurisdiction of both the Northeast Florida Regional Planning Council (NEFRPC) and the East Central Florida Regional Planning Council (ECFRPC) and underwent concurrent review. The Hunter's Ridge project as proposed in this proceeding is a proposed planned unit development located in the unincorporated area of Flagler County and in the City of Ormond Beach on approximately 5,037 acres. The portion of the Hunter's Ridge project located in the unincorporated area of Flagler County consists of approximately 3,800 acres, of which 1,940 acres will be preserved as conservation area. The portion to be developed in the unincorporated area of Flagler County is approximately 1,860 acres, consisting of 1,702 residential units, plus commercial, recreational, and other uses. The portion of the Hunter's Ridge project located in the City of Ormond Beach consists of approximately 1,237 acres, of which 327 acres will be preserved as conservation area. The portion of the property in Ormond Beach to be developed is approximately 910 acres, consisting of 982 residential units, plus commercial, recreational, and other uses. Of the residential units to be developed in the City of Ormond Beach, 109 residential units were approved by the Department of Community Affairs (DCA) under a preliminary development agreement. The Board of County Commissioners of Flagler County held a public hearing on the DRI/ADA on July 13, 1989, which was continued to October 12, 1989, to November 2, 1989, to January 11, 1990, and to January 25, 1990. On January 25, 1990, the Board of County Commissioners of Flagler County passed and adopted a Development Order for the Hunter's Ridge DRI, which Development Order was recorded in Official Records Book 0423, Page 0669 through 0728, Public Records of Flagler County, Florida. The City Commission of the City of Ormond Beach held a public hearing on the DRI/ADA on August 15, 1989, which was continued to September 5, 1989, to September 19, 1989, to October 3, 1989, to October 17, 1989 and to January 30, 1990. At the public hearing on January 30, 1990, the City of Ormond Beach adopted Resolution 90-20 denying the DRI/ADA for the portion of the Hunter's Ridge DRI located in the City of Ormond Beach. The DCA, pursuant to Section 380.07, Florida Statutes, and Rules 42- 2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with the Florida Land and Water Adjudicatory Commission (FLWAC), whereby DCA appealed the Development Order adopted by the Board of County Commissioners of Flagler County. The Applicant, pursuant to Section 380.07, Florida Statutes, and Rules 42-2.002 through 42-2.011, Florida Administrative Code, timely filed a Notice of Appeal and Petition for Administrative Hearing with FLWAC, whereby the Applicant appealed the denial of approval by Ormond Beach. This cause came before FLWAC on May 22, 1990, for consideration of the Appeals and the Petitions for Administrative Hearing; FLWAC ordered that this matter be forwarded to Division of Administrative Hearings (DOAH) for assignment of a hearing officer and further proceedings. At the Administrative Hearing conducted by DOAH, on December 5-7, 1990, the Applicant amended its DRI/ADA to reduce the size of the project and to reallocate land uses, densities, and other components of the project. The current scope of the project is reflected in Florida-Georgia Exhibits 1-5, 9, and 14. As amended by the Applicant, the proposed project now consists of the following uses in Flagler County: 11.61 acres of Village Retail Office; 5.71 acres of Village Office; 16.68 acres of Light Industrial; 197.18 acres of Village Services/Recreational; 90.89 acres of Parks and Schools; 64.52 acres of Multi-Family Residential (with Upland Buffer); 259.34 acres of Wetlands; 146.93 acres of Roads, Drainage, and Retention; 52.90 acres of Lakes; 130.00 acres of Golf Course; 57.25 acres of Utility Easement; and 130.00 acres of Single Family Residential. The total number of dwelling units permitted in the County is 220 townhouses and villas and 145 apartments and condominiums. As amended by the Applicant, the proposed project now consists of the following uses in the City: 192.00 acres of Village Services/Recreational; 30.61 acres of Parks and Schools; 14.51 acres of Multi-Family Residential (with Upland Buffer); 174.54 acres of Wetlands; 110.95 acres of Roads, Drainage, and Retention; 28.65 acres of Lakes; 17.32 acres of Utility Easement; and 341.42 acres of Single Family Residential (with Upland Buffer). The total number of dwelling units permitted in the City are 932 single family units and 50 townhouses and villas. Generally speaking, the portions of the development within the County which are to be developed are in Township 41 South, Range 31 East, Section 22 and the east half of Section 21; Section 15 and the east half of Section 16, with the exception of a golf course in Section 15, constitute an area that, if it is to be developed in the future, will require a substantial deviation approval from all concerned agencies. Pursuant to stipulation of the Applicant and Flagler County, an area approximating Section 15 and the east half of Section 16 will be redesignated under the Flagler County Comprehensive Plan as Agricultural, with a permitted residential density of not more than one unit per five acres. Pursuant to stipulation, Sections 17 and 20 and the west halves of Sections 16 and 21, along with most of the portions of Sections 29 and 30 north of State Road 40, will be deeded to a public or public interest agency, with the Applicant retaining the right to conduct silviculture with best management practices except in those wetland areas of the property designated for conservation. The parties, with the exception of Citizens, have stipulated that Florida-Georgia Exhibit 5 constitutes the necessary affordable housing conditions for the project. The affordable housing provisions of the proposed project are consistent of the requirements of Chapter 380, Florida Statutes, Rule 9J-2, Florida Administrative Code, and the State Comprehensive Plan. The affordable housing conditions adequately address affordable housing needs of the project consistent with all local government, state, and regional requirements and regulations. The Applicant, the Florida Audubon Society, Flagler County and the City of Ormond Beach, have stipulated that the conditions contained in their Joint Stipulation, filed as Florida-Georgia Exhibit 9 satisfactorily resolve all issues concerning wetlands, wildlife habitat, and endangered species. The soils on the project will support the proposed development. During review of the DRI/ADA by the RPCs, Volusia County submitted comments and recommendations to ECFRPC. The comments and recommendations of Volusia County were considered by ECFRPC when it adopted its recommended conditions of approval. The conservation area proposed by the Applicant represents a significant contribution to conservation and wildlife. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on the environment and natural resources. The proposed Development Orders and Conditions of Approval include measures intended to address impacts upon, and to protect, the Little Tomoka River. The proposed Development Orders and Conditions of Approval provide for preservation and conservation of wetlands. The proposed Development Orders and Conditions of Approval provide flexibility for protection of environmentally sensitive areas. The proposed plan of development reflects a development that provides adequate environmental protection. The proposed project will have no adverse environmental impacts in the City of Ormond Beach. The proposed Development Orders and Conditions of Approval provide protection for the Little Tomoka River, preventive measures regarding stormwater discharge and stormwater treatment, and mitigative, water quality treatment methods in the surface drainage system, if any degradation is found at a later date. The proposed Conditions of Approval require that all construction within the project be protected against flooding. The project has sufficient safeguards to prevent construction within flood prone areas. Minimum floor elevations for flood plain purposes will be controlled by FEMA flood plain designations and by local rules and regulations, and will be established on a case by case basis for the Hunter's Ridge project. The proposed Conditions of Approval addressing transportation impacts and facilities are consistent with the provisions of Chapter 380, Florida Statutes, with the provisions of Rule 9J-2, Florida Administrative Code, and with the State Comprehensive Plan. The proposed Conditions of Approval ensure that the Hunter's Ridge project will not have an adverse impact on regionally significant roadways, including State Road 40. The proposed Conditions of Approval will ensure that the regional highway network will function at the desired level of service during the project buildout. The proposed Conditions of Approval are consistent with the provisions of Section 380.06(12), Florida Statutes, relating to transportation impacts. The proposed Conditions of Approval adequately address the transportation concerns of Flagler County. The proposed Conditions of Approval adequately address the transportation impacts on the City of Ormond Beach. The proposed Conditions of Approval dealing with public facilities are consistent with the provisions of Chapter 380, Florida Statutes, consistent with the provisions of Rule 9J-2, Florida Administrative Code, and consistent with the State Comprehensive Plan. If the conditions for providing public facilities are not met by the Applicant, development must cease. The proposed Conditions of Approval dealing with public facilities are consistent with the concurrency requirements of Chapter 380, Florida Statutes. The proposed Development Orders and Conditions of Approval adequately address the regional impacts of the project on public services and facilities. The proposed plan for development of the Flagler County portion of the project provides for all required public facilities and services. The Applicant will have to subsidize any deficits in providing public services. The Applicant has agreed to make contributions intended to assist Flagler County in providing public services to residents of areas outside of the Hunter's Ridge project. Solid waste is not an issue in Flagler County. The proposed Conditions of Approval for the Flagler County portion of the project provide three options for wastewater treatment. The proposed Conditions of Approval for the Flagler County portion of the project require that the project must stand on its own and must provide water supply and wastewater treatment without cost to the rest of the residents of Flagler County. The Flagler County portion of the project requires 1,200 to 1,500 dwelling units to provide a self-contained, self-supporting, self-sufficient development which will not require subsidy by other Flagler County taxpayers. The good mix of land uses contained in the proposed plan for development will help the tax base of Flagler County and avoid a deficit during the buildout of the project prior to construction of 1,200 to 1,500 dwelling units. The tax base, the values, and the assessments for the proposed project will provide sufficient funds to support the development. The proposed Conditions of Approval for the Flagler County portion of the project provide for voluntary contributions by the Applicant in excess of what is required by local ordinance. The dedication and donation of the golf course and conservation areas to Flagler County are voluntary contributions by the Applicant. The Ormond Beach portion of Hunter's Ridge project will not require a separate police patrol zone. The Ormond Beach Police Department can provide acceptable response times for the portions of the project within the City. The public safety site to be dedicated by the Applicant will benefit the City and the Police Department and will be helpful in rendering public safety services to the citizens of Ormond Beach. The Ormond Beach portion of Hunter's Ridge project will provide needed revenue to provide needed Police Department services. The Ormond Beach Police Department can adequately provide public safety services for the Hunter's Ridge area and respond to public safety needs within a reasonable amount of time. The City of Ormond Beach is capable of providing potable water service to the project. Impact fees generated by the project will be sufficient to fund water supply and wastewater capital facilities needed to serve the project. The City has adopted the West Ormond Plan to provide utilities to the Hunter's Ridge project. The Applicant has dedicated to the City a westerly wellfield site which will be needed for the entire city in the future, even if the Hunter's Ridge project is not developed. The City of Ormond Beach does not lose money on water and sewer fees. If the homes built in the Ormond Beach portion of the Hunter's Ridge project approximate the assessed values of existing homes within the city, there will be no revenue strain on the operating budget of the City of Ormond Beach. The average sale price for homes in the Hunter's Ridge project will be higher than the current average sale price within the City of Ormond Beach. The Hunter's Ridge project will not place an economic strain on the City of Ormond Beach. Future growth in the City of Ormond Beach will pay for itself in terms of capital needs. The fiscal problems of the City of Ormond Beach are not unique, but are similar to those occurring throughout the state. Increased property values from the Hunter's Ridge project will help the city's fiscal problems in the long run. The City of Ormond Beach has a great deal of ad valorem capacity to meet service needs and operating budgets. The Hunter's Ridge DRI will make significantly more contributions to public services and facilities than traditional subdivisions. The reduced project as proposed for approval in this proceeding contributes a greater amount of money toward public facilities. The public safety site to be dedicated in the Ormond Beach portion of the project is adequate to serve the fire fighting needs of the project and the surrounding areas. The public safety site to be dedicated in the Ormond Beach portion of the project gives the city flexibility in providing fire fighting services if the road network connecting the project with Shadow Crossings and Breakaway Trails is in place and will enable the city to better serve Shadow Crossings and Breakaway Trails. The roadway network for the Hunter's Ridge project will provide interconnections with Shadow Crossings and Breakaway Trails for the provision of police, fire, and emergency services. The Hunter's Ridge project will have no impact on solid waste in the City of Ormond Beach. The Hunter's Ridge project will have no impact on the vehicular needs of the City of Ormond Beach Department of Public Works. The Hunter's Ridge project will have no adverse impact on road maintenance in the City of Ormond Beach. The proposed Hunter's Ridge DRI is consistent with the requirements of Chapter 380, Florida Statutes, the requirements of Rule 9J-2, Florida Administrative Code, and the requirements of the State Comprehensive Plan. The Hunter's Ridge DRI meets all regional requirements. The Hunter's Ridge DRI does not represent "leap frog development," nor does it constitute "urban sprawl." The density of 982 dwelling units for the Ormond Beach portion of the Hunter's Ridge project is consistent with the State Comprehensive Plan and the requirements of Chapter 380, Florida Statutes. Reducing the density proposed for the Ormond Beach portion of the project from 982 residential units to 882 residential dwelling units would not necessarily be considered an improvement to furthering the plan concept. The Hunter's Ridge DRI is consistent with the plans and policies of the Regional Planning Councils. As to the portions within Flagler County, the Hunter's Ridge DRI: Is consistent with the provisions of Chapter 380, Florida Statutes; Is beneficial to Flagler County; Is consistent with the Flagler County Comprehensive Plan; Is consistent with the NEFRPC report and recommendations; Is superior to existing zoning; Provides better development and more planning opportunities than non- DRI approaches to development; and, Provides adequate controls for the development of Hunter's Ridge. The Ormond Beach portion of the project: Is consistent with the provisions of Chapter 380, Florida Statutes; Is consistent with the Ormond Beach Comprehensive Plan and all City ordinances and regulations; Adequately mitigates against adverse impacts through the Conditions of the proposed Development Order. To the extent that the opinions of some witnesses, primarily Mr. Grace and Mr. Shearer, have not been adopted in these Findings of Fact, they are deemed to be unreliable or lacking in substantial weight or persuasive value.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order and therein: Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and the City of Ormond Beach. Adopt the development order with conditions as set forth in the Joint Stipulation of Florida-Georgia Venture Group and Flagler County. DONE and ENTERED this 21st day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 21st day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Florida-Georgia Venture Group Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 12-14(6-8); 16- 19(9-12); 20(18); 22-25(19-22); 27-38(23-34); 40-89(35-83); 91(84); 92(85); 94(86); 97(87(; and 98(88). Proposed findings of fact 26, 39, 90, 93, 95, and 96 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6-11 and 21 are unnecessary. Proposed finding of fact 15 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Community Affairs Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 8-12(13-17). Proposed findings of fact 1, 2, and 13-17 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 3-7 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by the City of Ormond Beach 1. Proposed findings of fact 1, 8, 10-17, 21, 33-36, 38-40, 43, 46, and 49 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 2-7, 19, 20, 22, 23, 37, 47, 48, and 50 are irrelevant. Proposed findings of fact 9, 18, 24-32, 41, 42, 44, 45, 51, and 52 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by the Citizens for Ormond Beach 1. Proposed findings of fact 7, 9-11, 13-19, 21-25, 35, 47, and 49-52 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 8, 12, 20, 26-32, 34, 42, and 57 are irrelevant. Proposed findings of fact 33, 36-39, 43-46, 48, and 53-56 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 1-6, 40, and 41 are unnecessary. COPIES FURNISHED: J. Doyle Tumbleson, Attorney at Law Kinsey Vincent Pyle Professional Association 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Fred S. Disselkoen, Jr. Attorney at Law City of Ormond Beach Post Office Box 277 Ormond Beach, FL 32175-0277 Gerald S. Livingston Attorney at Law Post Office Box 2151 Orlando, FL 32802 Timothy Keyser, Attorney at Law Post Office Box 92 Interlachen, FL 32148 Jonathan Hewett Attorney at Law Central Florida Legal Services, Inc. 216 South Sixth Street Palatka, FL 32177 David Russ, Senior Attorney Julia Johnson, Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, FL 32751 Linda Loomis Shelley Attorney at Law Dixon, Blanton & Shelley 902 North Gadsden Street Tallahassee, FL 32303 Noah McKinnon Attorney at Law 595 West Granada Avenue Ormond Beach, FL 32075 Douglas M. Cook, Director Planning and Budgeting Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
Findings Of Fact Petitioner, Deltampa, Inc., a Florida corporation and wholly owned subsidiary of the Deltona Corporation, a Delaware corporation, is the owner of approximately 5,408 acres of property located in northern Hillsborough County, Florida. (Testimony of Motchkavitz, Exhibit 4) Petitioner proposes to develop its property into a functionally interrelated residential community called Tampa Palms, which will ultimately consist of approximately 13,500 single-family and multiple-family dwelling units, a regional shopping center, an industrial park, golf courses, parks and related recreational facilities, commercial and office facilities, and educational facilities. (Testimony of Motchkavitz; Exhibits 1, 6) The proposed name of the new district shall be the Tampa Palms Community Development District, and its external boundaries are set forth in the Legal Description at Exhibit 4. (Exhibit 4-5) The Tampa Palms development is planned to be constructed over a period of 20 years in four phases of five years each. The total area to be developed consists of approximately nine square miles of which some 60 percent or about 3,000 acres will involve low-density housing or open space, parks, and golf courses. Residential development will take place over 1,651 acres or about 30 percent of the site. A full range of community support facilities planned to meet the needs of the residents will include two school sites, 20 park sites, six church sites, two fire station sites, and two public facility sites, totalling about 300 acres or some six percent of the site. There will be 3,000 single-family residential units and about 10,500 multiple-family units. Density of the 1,650 acres of residential development will be approximately 8.5 units per acre, with 2.2 units per acre for single family units. Maximum density in the multifamily area will be 35 units per acre, and overall density for the entire site is projected to be 2.5 units per acre. (Testimony of Motchkavitz, Exhibit 1A) The site in question is a contiguous parcel which is bordered on the east generally by the lower Hillsborough River flood detention area and the proposed 1-75 right-of-way for the interstate highway which is under construction at the present time. The Hillsborough River runs across the southern portion of the site and Cypress Creek, an ill-defined, non-navigable water course, is on the western portion of the site. The site is approximately 10 miles northeast of Tampa. The property is bisected diagonally northeast to southwest by State Road 581. Interstate highway 1-75 passes by the property at the northwest corner and will eventually merge with the 1-75 Tampa bypass north of the site. The City of Tampa Morris Bridge Water Treatment Plant is located adjacent to the property at the northeast corner on a 60-acre site donated to the city by Deltona and will provide service to residents of Tampa Palms. Hooker's Point Wastewater Facility has a force main within one mile of Tampa Palms and will service the proposed community. The University of South Florida is located immediately to the south of Petitioner's site. (Testimony of Motchkavitz; Exhibits 1, 5) A proposed industrial area will be located in the northeast corner of the property consisting of approximately 75 acres. It is contemplated that only light industry of a research and development type will be conducted there. Additionally, about 150 acres in that general area will be used for shopping centers, hotel, and office facilities. (Testimony of Motchkavitz; Exhibits 1, 6) Potable water for the future residents of Tampa Palms will be supplied by the City of Tampa, which operates a water treatment plant adjacent to the northeast corner of the proposed development. Non-potable water will be developed by on-site wells to supply irrigation water to the proposed golf courses. The city water treatment plant has sufficient capacity to supply adequate water supplies to the estimated peak population of 31,700. Off-site wastewater treatment will be provided by the City of Tampa advanced wastewater treatment plant at Hooker's Point. No septic tanks will be used at the Tampa Palms development. Wastewater will be collected by a central system and pumped off site for treatment. Solid waste generated by the development will be collected twice weekly by the Hillsborough County Solid Waste Control Department and will be disposed of at a county landfill site. (Testimony of Apthorp; Exhibits 1, 6) The Hillsborough River has a history of flooding in periods of high water and heavy rainfall in the area surrounding Tampa. Several years ago, the Southwest Florida Water Management District and the Corps of Engineers entered into a program called the Lower Hillsborough Flood Detention Program which would attempt to restrict the flooding downstream by acquiring some 17,000 acres to the east of the Tampa Palms site, and constructing a dam at the southeast corner of the Tampa Palms property. It is an open structure through which the river flows in normal conditions, but has the capability of being closed in periods of high water and creating a temporary impoundment. This system also includes a levee which parallels the eastern side of the development site, thus providing flood protection from that direction. To prevent flooding of the site from the Cypress Creek system on the west, Petitioner plans to construct an earthen levee along the western boundaries of its property in a north-south direction and laterally across the northern border in an easterly direction until the elevation is sufficient to preclude flooding problems. The structure will have a maximum height of about six feet in the southernmost section and be as high as only two to three feet in the northern portions. It will have a freeboard or additional dirt belt above the 500-year flood level of Cypress Creek of one-and-a-half feet. The levee will have a 10-foot wide top and a six to one foot slope. It will be sodded and grassed to prevent erosion. There will be several drainage structures throughout the levee to allow drainage from the property to pass into Cypress Creek when the waterway is at a low flow level. These will consist of culverts with gate structures which will require monitoring and continuing maintenance to be performed by Petitioner or its successors. Petitioner plans an extensive drainage system for its property to maintain the integrity of the wetlands areas and to prevent pollution and excessive surface runoff into the Hillsborough River. The proposed drainage system for the project will consist of a network of 15-foot wide grassy swales adjacent to streets and rear yards from which runoff will flow into wetlands or lakes, and then through storm water structures to ultimate outfall into the Hillsborough River. The system is designed to permit drainage by gravity through extensive areas of natural vegetation to remove pollutants and result in approximately the same flow into receiving waters as existed prior to development of the property. Some 180 acres of lakes will be created from areas dredged to secure fill for the development. All lake areas will be deeper than six feet to lessen the establishment of aquatic plants and will be monitored for water quality as necessary. About twenty 50-foot long concrete seawalls will be built near the lakes to impound water, thereby creating additional storage, and equipped with piping which will allow the water to slow the drain down after storm events. It is anticipated that such controlled structures will eliminate the potential for any flood-type impacts to downstream users and allow more contact time with natural wetland vegetation. The drainage system will be operated and maintained by Petitioner until such time as an acceptable and qualified public entity assumes such responsibilities. (Testimony of Motchkavitz, Exhibit 14) Fire and police protection will be provided to the proposed district by Hillsborough County. In addition, the County will provide for solid waste collection and issuance of building permits. (Testimony of Motchkavitz, Exhibit 1) Pursuant to application of the Deltona Corporation on November 8, 1979, for approval of a development of regional impact pursuant to the provisions of Section 380.06, F.S., the Hillsborough County Board of County Commissioners, by Resolution adopted October 1, 1980, issued a Development Order approving the application, subject to various conditions. In the Development Order, the Board of County Commissioners concluded that the development would not unreasonably interfere with the achievement of the objectives of the adopted state land development plan applicable to the area and was consistent with local land development regulations, and with the report and recommendations of the Tampa Bay Regional Planning Council. (Exhibit 7) By Resolution dated May 6, 1981, the Board of County Commissioners expressed its opinion that Petitioner should continue its efforts to establish a community development district for the Tampa Palms development and specifically found that: The creation of a community develop- ment district in conjunction with the development of Tampa Palms is not, in the Board's opinion, inconsistent with the approved Hillsborough County Com- prehensive Land Use Plan or other local land use regulations, and A community development district appears, in the Board's opinion, to be the best alternative available for delivering to and maintaining the com- munity development services and facil- ities in the Tampa Palms area, and The services and facilities to be operated and maintained by the proposed district do not appear to be, in the Board's opinion, incom- atible with the capacity and uses of existing and proposed local and regional community development ser- vices, and The Tampa Palms development, due to its size and location and the extent of community services and facilities to be created within the development appears to be, in the Board's opinion, amenable to separate special district government. (Exhi- bit 2) The five persons designated to serve as initial members of the Board of Supervisors of the proposed community development district are Frank E. Mackle, III; Richard F. Schulte, William I. Livingston, Paul M. Schaefer, and Edward G. Grafton. It is intended that they shall serve as the Board of Supervisors until replaced in accordance with Section 190.006, F.S. (Petition) The following ultimate findings are made based upon the testimony and documentary evidence adduced at the hearing: All statements contained within the Petition have been found to be true and correct. (Testimony of Apthorp) The creation of the district is not inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. This finding is supported by the Development Order and subsequent Resolution issued by the Hillsborough County Board of County Commissioners. (Exhibits 2, 7) The area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. This finding is supported by the previous findings of fact concerning the size of the proposed district and the fact that the 5,400 acres are in one contiguous parcel. The district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. This finding is supported by the Development Order issued by the Hillsborough County Board of County Commissioners and its subsequent Resolution acknowledging that a community development district would be the best alternative available for such purposes. Hillsborough County is presently not in a position to provide many of the essential services required by a community of the contemplated size of Tampa Palms, including but not limited to public streets and an extensive surface water management system. The proposed development will result in a substantially self-contained community which will be comprehensively planned so as to provide necessary services required by its residents. A community development district will be in a position to provide reliable operation and maintenance of those services and facilities not otherwise conducted by the County or other appropriate unit of local government. (Exhibits 2, 7) The community development services and facilities of the district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The proposed development of the property is scheduled, in accordance with the terms of the County Development Order, to coincide with the provision of essential area services which will not be provided by the district. (Exhibits 2, 7) The area that will be served by the district is amenable to separate special-district government. This finding is supported by the foregoing findings of fact which establish that the nature and location of the proposed Tampa Palms development would be facilitated and best served by the establishment of a separate special-district government under all of the facts and circumstances.
Recommendation Based upon the findings of fact and conclusions of law hereby submitted, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission grant the Petition of Deltampa, Inc., and adopt a rule which will establish the Tampa Palms Community Development District, pursuant to Section 190.005(1), Florida Statutes. DONE and ENTERED this 20th day of October, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1981. COPIES FURNISHED: Robert S. Schumaker, Esquire Deltona Corporation Post Office Box 369 Miami, Florida 33145 Honorable John T. Herndon Secretary, Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent, Arthur Scott, guilty of exploiting a professional relationship with a student for personal gain or advantage, reprimanding him for his conduct and placing him on a three year term of probation subject to such terms and conditions as the Department deems appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of October, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the clerk of the Division of Administrative Hearings this 21st day of October, 1988. APPENDIX Addressed in paragraph 1. Addressed in paragraph 2. Rejected as not a finding of fact Addressed in paragraph 3. Addressed in paragraphs 5 and B. Addressed in paragraph 11. 7-14. Addressed in paragraphs 7-15, otherwise rejected as not a finding of fact or not material. 15. Addressed in paragraphs 5-7, 11, 13-18 and 19. 16-17. Addressed in paragraph 13 and 16. Addressed in paragraphs 17-20. Addressed in paragraph 23. Addressed in paragraph 8. Addressed in paragraph 6. Addressed in paragraph 8. Addressed in paragraphs 8 and 11. Addressed in paragraph 21. Addressed in paragraph 16. 26-27. Addressed in paragraph 21. 28. Addressed in paragraph 7-9. 29-30. Addressed in paragraph. COPIES FURNISHED: Betty J. Steffens, Esquire Nabors, Giblin, Steffens, & Nickerson, P.A. Post Office Box 11008 Tallahassee, Florida 32302 Thomas L. Rolle, Esquire Cassidy & Rolle, P.A. Post Office Box 1164 West Palm Beach, Florida 33401 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
