The Issue The issue in this case is whether a small scale amendment to the Cooper City comprehensive plan adopted pursuant to Section 163.3187(1)(c), Florida Statutes, is "in compliance."
Findings Of Fact The Parties. Petitioner, The Sunshine Ranches Homeowners Association, Inc. (hereinafter referred to as the “Homeowners Association ") is a not-for-profit corporation. The Homeowners Association has members who reside within the residential area known as Sunshine Ranches, located in Broward County. The address of the principal office of the Homeowners Association is 12400 Flamingo Road, Fort Lauderdale, Broward County, Florida. (Stipulated Facts). The Homeowners Association was formed on or about December 4, 1968. The Homeowners Association is involved in working for the betterment of residents and land owners within Sunshine Ranches to secure political, social, and economic improvement within Sunshine Ranches. Petitioner, Charles F. Seip, resides at 4661 Southwest 128th Avenue, Fort Lauderdale, Florida. Mr. Seip lives two blocks west of the parcel of property which is the subject of this proceeding. Mr. Seip has lived at his current location for 26.5 years. (Stipulated Facts). Petitioner, Anthony E. Coulson, resides at 4710 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Coulson lives approximately four blocks from the subject property. (Stipulated Facts). Petitioner, Jeffrey Price, resides at 5001 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Price lives approximately four blocks west of the subject property. (Stipulated Facts). Each Petitioner submitted oral and written objections to the City of Cooper City during the review and adoption proceedings conducted by the City of Cooper City on the adoption of the comprehensive plan amendment which is the subject of this proceeding. Petitioners submitted objections to the Cooper City Planning and Zoning Board and the City of Cooper City Commission. The parties stipulated that Petitioners are "affected persons." Respondent, the City of Cooper City (hereinafter referred to as the "City"), is a municipality of the State of Florida. The City is located in Broward County, Florida. The City is a "local government" as defined in Section 163.3164(13), Florida Statutes. The City's address is 9090 Southwest 50th Place, Cooper City, Broward County, Florida. (Stipulated Facts). Intervenor, George H. Lange, Trustee, is the representative of a trust that owns the property which is the subject of the amendment at issue in this proceeding. The Amendment. By Ordinance Number 96-10-3, the City adopted an amendment, L.L.U.P.A. 96-S-1 (hereinafter referred to as the "Plan Amendment") to the Cooper City Land Use Plan. (Stipulated Facts). The Plan Amendment was adopted on October 22, 1996. (Stipulated Facts). Also adopted with the Plan Amendment was a Development Agreement establishing conditions for the development of the property which is the subject of the Plan Amendment (hereinafter referred to as the "Subject Property"). The Plan Amendment was also identified as Ordinance Number PS96-15 in some notices published by the City. (Stipulated Facts). The Plan Amendment changes the land use designation of approximately 8.45 acres of land from "Estate Residential" to "Commercial" for the eastern 3.82 acres and to "Community Facility" for the western 4 acres. (Stipulated Facts). The Plan Amendment is a "small scale amendment" pursuant to Section 163.3187(1(c), Florida Statutes. Therefore, the Plan Amendment was not reviewed by the Department of Community Affairs. (Stipulated Facts). The petition challenging the Plan Amendment was filed with the Division of Administrative Hearings within 30 days of October 22, 1996, the date the Plan Amendment was adopted. (Stipulated Facts). The City and Its Comprehensive Plan. The City is a relatively small municipality located in southwestern Broward County. Geographically, the City consists of approximately six-and-a-quarter square miles. The City is located directly to the east of Sunshine Ranches. The City and Sunshine Ranches are bounded on the north and south by the same roads: Griffin Road and Orange Road in the north; and Sheridan Street in the South. The western boundary of the City either abuts Sunshine Ranches or is separated by Flamingo Road. The City is bounded on the north by the Town of Davie. It is bounded on the south by Pembroke Pines. The City adopted the Cooper City Comprehensive Plan in 1991 (hereinafter referred to as the "Plan"). It consists of Volumes I, II, and III. Volume I contains the text of the Plan. Volumes II and III contain the data and analysis for the Plan. Pursuant to a Compliance Agreement entered into between the City and the Department of Community Affairs, the Plan was found to be "in compliance" as defined in Chapter 163, Part II, Florida Statutes. The City's Evaluation and Appraisal Report. The City was required to submit an Evaluation and Appraisal Report to the Department of Community Affairs on or before March 11, 1996. At the time of the formal hearing of this case, the City had prepared a draft of its Evaluation and Appraisal Report. See Respondent's and Intervenor's Exhibit 5. The draft of the City's Evaluation and Appraisal Report had not, however, been filed with the Department of Community Affairs. Sunshine Ranches. Sunshine Ranches is an unincorporated area of Broward County. It is generally bounded by the following roads: On the north by Orange Road and Griffin Road; On the south by Sheridan Street; On the west by Volunteer Road (148th Avenue); and On the east by Flamingo Road. Griffin Road abuts the entire length of the northern boundary of Sunshine Ranches. Orange Road is located immediately to the north of Griffin Road. The two roads are separated by a canal which runs the entire length of the northern boundary of Sunshine Ranches. The area to the north of Orange Road and Griffin Road is largely undeveloped. Flamingo Road on the eastern boundary of Sunshine Ranches is a six-lane road with a wide right-of-way. There is also a canal that runs the length of Flamingo Road. The canal separates Flamingo Road from Sunshine Ranches and other parcels of property located west of Flamingo Road. The right- of-way and canal are approximately 270 feet wide. The roads along the north, south, and west of Sunshine Ranches are contiguous with Sunshine Ranches' boundaries. On the east, Flamingo road is contiguous with most of Sunshine Ranches' eastern boundary. There are, however, several parcels of property located west of Flamingo Road which are a part of the City. Sunshine Ranches consists of approximately four square miles of land, or approximately 2,500 acres. Sunshine Ranches is a rural community with a significant number of small and large horse farms. There are also large homesites, the majority of which are five acres or larger. Many homesites have barns on them. A substantial number of homes in Sunshine Acres have animals, such as horses, chickens, and cows. Most of the roads in Sunshine Ranches are dirt roads. There are no sidewalks or traffic lights. There are a few fire hydrants in Sunshine Ranches. Most areas, however, are served by fire wells. There is a volunteer fire department consisting of two vehicles. The vehicles are leased from Broward County. Sunshine Ranches is a unique community in Broward County, both in terms of the size of lots and its rural, equestrian and agricultural character. There are signs at each entrance road into Sunshine Ranches that include the following: "Welcome to Sunshine Ranches: A Rural Estate Community." Most commercial enterprises within Sunshine Ranches are involved in equestrian-related activities. These activities consist of providing boarding facilities, riding schools, and horse training facilities. There is also a plant nursery located in Sunshine Ranches. Horses owned by non-residents of Sunshine Ranches are boarded at facilities in Sunshine Ranches. Non-residents also ride horses at facilities located in Sunshine Ranches. The land use designations for Sunshine Ranches consist of the following: "Rural Ranches," which allows one residential unit per two and one-half acres; and "Rural Estate," which allows one residential unit per one acre. The designation of Sunshine Ranches as Rural Ranches and Rural Estate was accomplished by an amendment to the Broward County comprehensive plan. It was the first area in Broward County to receive these designations. The designations resulted from a study conducted by Broward County to identify, preserve, and protect rural lands from urban encroachment. Property designated Rural Ranches may be used for "Community Facilities" also. Community Facilities include schools, fire stations, churches, etc. Churches require five- acre lots. There are several parcels located along Flamingo Road in Sunshine Ranches which are used by Churches. There are also schools located within Sunshine Ranches. Approximately 90% of Sunshine Ranches is designated Rural Ranches. Approximately 10% of Sunshine Ranches is designated Rural Estate. The portion of Sunshine Ranches designated Rural Estate is located along Giffin Road. Commercial Activities Around Sunshine Ranches. There are only a few commercial sites located near the boundaries of Sunshine Ranches. One is located on the western boundary of Sunshine Ranches at Volunteer Road and Griffin Road. This site is located on the side of Volunteer Road opposite to Sunshine Ranches. The site is, therefore, separated from Sunshine Ranches by the road and a canal. The largest amount of commercial property in the vicinity of Sunshine Ranches is located near the eastern boundary of Sunshine Ranches and Flamingo Road. At the corner of Flamingo Road and Giffin Road, immediately across Flamingo Road from the Subject Property, is Wal-Mart Shopping Center. Abutting Flamingo Road is the parking lot for the shopping center. The shopping center is located to the east of the parking lot. The shopping center is currently separated from Sunshine Ranches by approximately 700 feet of parking lot, the six-lanes of Flamingo Road, the canal located on the west side of Flamingo Road and the Subject Property. Immediately to the south of the Wal-Mart parcel are properties designated "Low 5" and "Low-Medium 10." Both designations allow residential uses. Flamingo Road and the canal on the western side of Flamingo Road act as a buffer between the existing commercial activities on Flamingo Road and Sunshine Ranches. Flamingo Road has historically acted as a dividing line between commercial activities and Sunshine Ranches. Commercial activities have been limited to the eastern side of Flamingo Road. On the west side of Flamingo Road there are several parcels of land which have been annexed as part of the City. None of these parcels are currently approved for commercial uses, however. They are all currently designated for residential ("Estate Residential") or Community Facilities. Most remain undeveloped. The Estate Residential designation allows use of the property for Community Facilities. Immediately to the south of the Subject Property is a 16-acres parcel designated Estate Residential. The largest parcel of property in the City located on the western side of Flamingo Road has been developed under the name of County Glen. There are no commercial sites within County Glen. Steps were taken in developing County Glen to minimize the impact of its higher density on Sunshine Ranches. These steps included restricting the number of traffic lights within the development and a limitation on density of the lots directly abutting Sunshine Ranches to one residential unit per acre. Although County Glen is more urban than Sunshine Ranches, steps were taken to buffer Sunshine Ranches from the impact of the development, consistent with development allowed west of Flamingo Road. The Need for Commercial Property in the City. Volume II of the Plan contains an analysis of the amount of commercial acreage within the City necessary to support the residents of the City. The analysis indicates that the City has one of the lowest ratios of commercial to residential acreage in Broward County. The ratio of commercial property to residential property was 7.2 percent. Although this ratio is lower than the ratio for Broward County, the City and the Department of Community Affairs agreed that the Plan, including the amount of acreage designated for commercial use, was "in compliance." The City has not amended its Plan to change this ratio. The City has adopted two Plan amendments reducing the amount of acreage in the City designated "Commercial" under the Plan. One amendment involved approximately 14.4 acres. The evidence failed to prove the size of the other parcel. Currently, there are a number of parcels of land designated Commercial under the Plan which are vacant. One is known as the Transflorida Bank Plaza. It is located to the east of the Subject Property at the corner of Griffin Road and 100th Avenue. The property was formerly a Winn Dixie Supermarket. Part of the property is still used for commercial uses. Another vacant commercial parcel is located on Pine Island Road across from David Poenick Community Center. This parcel is 6.5 acres. The City has approved use of this property for a 55,000 square-foot Albertson's. Another vacant commercial parcel is located on Stirling Road across from the Cooper City High School. On the east side of Flamingo Road, between Stirling Road and Giffin Road, there is a shopping center known as Countryside Shops. There are vacant parcels to the south and north of this property which could be used for commercial purposes. Finally, there are other vacant commercial parcels located in the central part of the City. The location of commercial property is an important factor in determining whether the property will actually be used. Therefore, the fact that there are vacant commercial properties located in the City fails to prove that there is not a need for the total amount of property designated Commercial under the Plan. Overall, the City has reduced the amount of property designated Commercial under the Plan. The amount of land being classified as Commercial pursuant to the Plan Amendment will not increase the amount of property originally designated Commercial pursuant to the Plan. The "Industrial" land use designation under the Plan allows some uses which may be considered commercial. This was true when the Plan was found to be in compliance, however, and the amount of land designated Commercial was still approved. The evidence failed to prove that the amount of property designated Commercial, including the portion of the property being designated Commercial pursuant to the Plan Amendment, is not supported by the data and analysis that supported the amount of commercial property found to be in compliance under the Plan when it was adopted. In light of the fact that the City has not submitted its Evaluation and Appraisal Report to the Department of Community Affairs for review as required by Section 163.3191, Florida Statutes, the amount of property designated Commercial in the originally approved Plan should not be relied upon to support the Plan Amendment. While the draft of the Evaluation and Appraisal Report prepared by the City indicates a need for additional commercial acreage in the City, the Department of Community Affairs has not reviewed the report. Nor has the City amended the Plan "based on the recommendations contained in the adopted evaluation and appraisal report " Section 163.3191 (4), Florida Statutes. The Subject Property and the Impact of the Plan Amendment. The Subject Property is currently classified as "Estate Residential" in the Plan. This classification allows the use of the Subject Property for residential purposes. The Subject Property is located at the southwestern corner of Flamingo Road and Griffin Road. It is located on the west of Flamingo Road. The Subject Property abuts the northeastern corner of Sunshine Ranches. Under the Plan Amendment, the eastern approximately four acres of the Subject Property will be designated Commercial (hereinafter referred to as the "Commercial Property"). This will be the first property on the west side of Flamingo Road designated for commercial uses. The Commercial Property will be separated from Sunshine Ranches by the remaining 3.82 acres of the Subject Property. This portion of the Subject Property will be designated Community Facilities (hereinafter referred to as the "Community Facilities Property"). The Subject Property abuts an area of Sunshine Ranches which consists of Rural Estate property. This designation makes up approximately 10 percent of the property in Sunshine Ranches. The Plan Amendment allows stormwater facilities required for the Commercial Property and the Community Facilities Property to be located on the Community Facilities Property. I. Compatibility of Land Classifications with Surrounding Classifications; The Impact of the Plan Amendment on Sunshine Ranches. Policy 1.1.3 of the Plan provides that the compatibility of a proposed land use with existing land uses is a primary consideration in determining whether a land use should be allowed. Residential and commercial land uses are not inherently compatible. Despite this fact, residential and commercial land uses often abut each other. Where this occurs, steps can be taken to minimize the negative impact of the commercial use of property on the residential use of adjoining property. Flamingo Road and the adjacent canal provide a good boundary and buffer between rural Sunshine Ranches and the urbanized area of the City. The Plan recognizes this fact by requiring that the City conduct a study of the application of an urban growth boundary line for areas of the City located west of Flamingo Road. Regardless of the size of the Commercial Property, the designation of the Commercial Property for commercial uses would be the first commercially authorized use of property west of Flamingo Road or inside any of the other boundary roads of Sunshine Ranches. Comparing the uses allowed on the Commercial Property with the uses of property in Sunshine Ranches, it is evident that the uses are not compatible. This conclusion, however, does not necessarily mean that the City's approval of the Commercial Property for commercial uses is not "in compliance." Although the uses allowed on the Commercial Property and in Sunshine Ranches are incompatible, there are steps which can be taken to minimize the negative impacts which occur when commercial activities approach residential activities. One of those steps was taken when the City approved the Plan Amendment with the Community Facilities Property located between the Commercial Property and Sunshine Ranches. The Community Facilities Property, in conjunction with other measures, can be an effective buffer between the Commercial Property and Sunshine Ranches. The Development Agreement adopted by the City was adopted, in part, to address compatibility concerns. The Development Agreement eliminates various uses of the Commercial Property which would otherwise be allowed by the City's zoning for commercial parcels. The Development Agreement also provides that the Community Facilities Property will be dedicated to community facilities uses once the development of the Commercial Property is approved. The Development Agreement also includes certain development standards and requirements intended to reduce the impact on Sunshine Ranches due to incompatibility, such as requiring berms and landscaping to buffer the Subject Property from Sunshine Ranches. Horse trails along the Subject Property are to be included in the development. Land development regulations will require that steps be taken in the development of the Subject Property to reduce the negative impact on adjoining property, including Sunshine Ranches. The designation of the Commercial Property for commercial uses could, however, have a "domino affect" on other property located west of Flamingo Road. Once one parcel is approved, it will be difficult for the City not to approve similarly situated parcels. The Plan Amendment will increase the expectation of others who own property west of Flamingo Road that the land- use designation of their property can be changed to Commercial. The evidence, however, failed to prove that there are other parcels of property located west of Flamingo Road which are sufficiently similar to the Subject Property that they would be allowed to be used for commercial purposes. The evidence also failed to prove that any parcels of property located west of Flamingo Road which may be considered in the future for commercial uses cannot have conditions imposed on their use for commercial purposes which will adequately protect Sunshine Ranches from an incompatible use. The Plan Amendment could also negatively impact the ability to use adjoining property for residential purposes. In particular, the sixteen-acre parcel located immediately to the south of the Subject Property will more difficult to develop as residential if the Plan Amendment is approved. The evidence failed to prove, however, that with effective buffering adjoining property cannot be used for residential purposes. The evidence failed to prove that, with proper measures to reduce the impacts of the development on the Subject Property on Sunshine Ranches, the development of the Subject Property allowed by the Plan Amendment would necessarily be incompatible with Sunshine Ranches. The evidence failed to prove that the uses allowed for the Community Facilities Property are incompatible with the uses allowed in Sunshine Ranches. The Availability of Infrastructure. The evidence failed to prove that the Plan Amendment is not in compliance due to the lack of available vehicle trips on roads that would be impacted by development of the Subject Property. This issue, which involves the question of whether development of the Subject Property is consistent with relevant transportation levels of service, is one that should be considered at the time a development order is sought. It is not an issue for consideration in determining whether a land use designation amendment is in compliance. The same conclusion applies to other services such as sewer and water, which currently are available for the Subject Property. Urban Sprawl, the State and Regional Plan, Internal Inconsistency, and Inconsistency with the Broward County Comprehensive Plan. The evidence failed to support allegations concerning urban sprawl, the state and regional plans, internal inconsistencies, and inconsistencies with the Broward County comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Administration Commission finding the Plan Amendment is invalid because it was adopted in violation of Section 163.3187(6), Florida Statutes, and is not "in compliance." DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1997. COPIES FURNISHED: Richard Grosso, General Counsel Scott SznitRen, Certified Law Intern ENVIRONEMENTAL and LAW USE LAW CENTER, INC. Civil Law Clinic Shepard Broad Law Center Nova Southeastern Center 3305 College Avenue Fort Lauderdale, Florida 33314 Alan Ruf, City Attorney City of Cooper City 9090 Southwest 50th Place Cooper City, Florida 33328 Richard G. Coker, Jr., Esquire BRADY and CORER 1318 Southeast 2nd Avenue Fort Lauderdale, Florida 33316 Barbara Leighty, Clerk Administration Commission Growth Management and Strategic Planning 2105 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 Capitol Tallahassee, Florida 32399-0001
The Issue The issue is whether the Petition to Establish the Southeastern Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2006),1 and Florida Administrative Code Rule Chapter 42-1. The purpose of the hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The issue to be determined in this case is whether Amendment 10-01A to the Bay County Comprehensive Plan (“the Plan Amendment”), adopted by Ordinance 10-22, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties The Department is the state land planning agency and, at the time of the adoption of the Plan Amendment, was charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in section 163.3184(1)(b). Bay County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Petitioner Diane Brown resides and owns property in Bay County, but not in the Sand Hills STZ. Petitioner submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. Intervenor Cedar Creek is a Florida corporation that owns approximately 1,007 acres of land within the Sand Hills STZ. Intervenor submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. The Sand Hills STZ The Sand Hills STZ is one of three Rural Community STZs in Bay County. The Sand Hills STZ has a number of platted and unplatted subdivisions that were created before the adoption of the Bay County Comprehensive Plan. Within the Sand Hills STZ is a police station, a fire station, and a public school for Pre- Kindergarten through 12th grade. Residences and businesses in the Sand Hills STZ are on private wells and septic tanks. The public school is on central sewer and water. Existing land uses within the Sand Hills STZ include Agriculture, Public/Institutional, Conservation/Preservation, General Commercial, and Rural Residential. Lands designated Agriculture can be developed at one dwelling unit on ten acres ("1 du/10 ac"). Lands designated Rural Residential can be developed at 1 du/3 ac on unpaved roads and 1 du/ac on paved roads. This leads to some semantic confusion. Densities of 1 du/10 ac and 1 du/3 ac are rural densities, but a density of 1 du/ac is a suburban density. That means the Rural Residential land use designation allows for densities that are suburban in character and the rural community STZs are not altogether rural. Abutting the Sand Hills STZ on the north is Washington County. To the south are areas designated Agriculture/ Timberland. The community of Southport is located about five miles to the south. West of the Sand Hills STZ is the Northwest Florida Beaches International Airport and other lands subject to the West Bay Area Sector Plan. East of the Sand Hills STZ is Deer Point Lake/Reservoir, the County’s primary source of drinking water. Also to the east are 8,500 acres of land owned by the Northwest Florida Water Management District that are designated Conservation/Recreation. The Sand Hills region is hydrogeologically sensitive because of significant recharge which occurs throughout the region via ground and surface waters to Deer Point Lake/Reservoir. The Plan Amendment The Plan Amendment creates a new Policy 3.4.10 to guide development in the Sand Hills STZ. The Policy begins: The Sand Hills Area is an established and continually evolving community with unique character and environmental assets that warrant a special planning approach to ensure the preservation and protection of its distinctive qualities. Due to its beautiful natural landscapes, picturesque areas, and its strategic location east of the West Bay Area Sector Plan (Centered around the Northwest Florida Beaches International Airport) and nearby transportation corridors--State Road 77, County Road 388, and State Road 20, development and growth will continue to occur in the Sand Hills Community. The Sand Hills Rural Community Special Treatment Zone is an overlay area that has been established to maintain the area's character while protecting its significant natural resources and advancing Bay County's Wide Open Spaces strategy (Map 3.7). The Sand Hills Rural Community Special Treatment Zone encourages efficient development and infill within an area that has the capacity to service future growth. Guiding principles for the Sand Hills STZ are set forth in new Policy 3.4.10: Protect important recharge areas from the effects of irresponsible development. Create a sense of place by implementing design and landscape standards. Promoting civic and community uses, and providing interconnection between uses, community parks, and open space that protect and enhance the character of the Sand Hills Community. Provide for sustainable development and environmentally responsible design. Maintain the character of the Sand Hills Rural Community while providing for neighborhood commercial, retail, office, and civic uses located within designated commercial area and corridors, appropriately scaled to meet the needs of the Sand Hills Community. Promote an integrated network of local streets, pedestrian paths, and bicycle and equestrian trails. Access management policies that promote development patterns which reduce automobile trip length. Provide for a range of housing types for all ages, incomes, and lifestyles. Provide centralized utilities for all new developments in a planned, coordinated and efficient manner. Policy 3.4.10.1 would allow properties designated Rural Residential to increase from 1 du/ac to 4 du/ac if central water and sewer are available and other conditions are met as set forth in Policy 3.4.10.4. Policy 3.4.10.2 has special conditions applicable to commercial development, such as a maximum floor area ratio of 30 percent. General Commercial land uses are only permitted in three designated "Commercial Nodes." Policy 3.4.10.3 creates special conditions applicable to agricultural uses in the Sand Hills STZ. Policy 3.4.10.4 establishes criteria for new development in the Sand Hills STZ, including the requirement for a site analysis by a licensed engineer or geologist. This requirement is imposed to protect karst features and aquifer recharge areas. This Policy also requires enhanced stormwater treatment and buffers around karst features, low impact design and landscaping standards, and open space requirements. Policy 3.4.10.5 requires the County to complete a plan by January 2012 for the expansion of water and sewer facilities into the Sand Hills STZ and to "retrofit" existing septic tanks by connecting properties to central sewer lines. New developments, regardless of density, are required to connect to central sewer lines if they are within 1,000 feet. Policy 3.4.10.6 addresses roadway access management to reduce reliance on State Road 77 and preserve levels of service. Internal Inconsistency Petitioner contends that the Plan Amendment is inconsistent with existing Policy 3.4.4 which states, in part, that rural community STZs are intended: to promote infill development into existing rural developed areas that will allow residents to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the designated and surrounding areas. Petitioner has a misunderstanding about Policy 3.4.4 that is the basis for several of her objections to the Plan Amendment. Petitioner focuses on the words "preserving the rural and low density land uses" and fails to see that the primary purpose of the policy is to enhance communities out in the rural areas of Bay County by encouraging the creation of a "nucleus" of mixed land uses in a compact development, while preserving the rural character of the surrounding area. Petitioner also asserts that the Plan Amendment is inconsistent with Policy 3.4.4 because the policy refers to "existing" developed areas, but the Plan Amendment allows residential density increases on some lands that are currently undeveloped. Petitioner's interpretation of the wording in the policy is not the only interpretation that can be given to the words and it is not the interpretation that Bay County gives to the words. Bay County interprets existing developed areas as a general reference to the areas that are currently recognizable as the core of village-like features, rather than a finite group of parcels. Policy 3.4.4 refers to the designation of rural community STZs "consistent with the Wide Open Spaces Strategy." A 7-page document entitled "Wide Open Spaces Strategy" was admitted into evidence as Petitioner's Exhibit 41. It is stated in the strategy that: This policy is an attempt by the Board of County Commissioners to focus its infrastructure planning and construction efforts. In no way should this policy be construed to discourage anyone choosing to live in the rural area. Rather, the Board is establishing the parameters and expectations that should be associated with that choice. The significance of the strategy to a compliance determination is not clear. It does not appear in the Comprehensive Plan and it may not have been properly adopted by reference. See § 163.3711(1)(b), Fla. Stat. Policy 3.4.4 states that a rural community STZ is to be "designated" consistent with the strategy, but this Plan Amendment does not designate the Sand Hills STZ. There are general statements in the strategy that fail to account for more specific policies of the comprehensive plan. For example, the strategy states that the County will limit residential development in rural communities to 1 du/3 ac, even though the Comprehensive Plan clearly allows 1 du/ac on Rural Residential lands if the lands are on paved roads. Statements in the policy regarding rural services do not reflect the existing public services and utility planning in the Sand Hills STZ. These disharmonies between the Wide Open Spaces Policy and the Comprehensive Plan suggest that the strategy is a collection of general statements that are not intended to have the same force and effect as the policies of the Comprehensive Plan. The record evidence is insufficient to show the intended role of the strategy in Bay County's comprehensive planning. The record evidence is insufficient to show that the Plan Amendment is inconsistent with the strategy. Petitioner contends that the Plan Amendment is inconsistent with Policy 6.10.5 of the Conservation Element, which states: "The County will maintain rural densities and intensities of development in identified high aquifer recharge areas." The existing rural densities in the Sand Hills STZ (1 du/10 ac and 1 du/3 ac) are not changed by the Plan Amendment. The existing suburban densities of 1 du/ac cannot be increased unless the parcels are connected to central water and sewer systems. Therefore, the purpose of Policy 6.10.5--to protect aquifer recharge areas--is achieved by the Plan Amendment. The stated "performance measure" for Policy 6.10.5 is the maintenance of rural designations on the FLUM. The Plan Amendment maintains rural designations on the FLUM. Petitioner contends that the Plan Amendment is inconsistent with Policy 3.2.3 because it conflicts with the intent of the policy to limit the Sand Hills STZ to rural levels of service. However, Policy 3.2.3 does not prohibit the County from providing central services in the Rural STZs. The service area map for the Sand Hills STZ shows that central water and sewer services are already planned. The County already provides central sewer and water to the public school located in the Sand Hills STZ. Petitioner claims that the Plan Amendment, for the first time, allows general commercial uses within the Sand Hills STZ, but General Commercial uses were already allowed in the Sand Hills STZ. In summary, Petitioner failed to prove facts showing that the Plan Amendment causes the Comprehensive Plan to be internally inconsistent with any goal, objective, or policy of the Comprehensive Plan. Data and Analysis Petitioner asserts that there is insufficient data and analysis to support the need for increased residential density to meet population projections for the area. A local government can accommodate more than the projected population. See § 163.3177(6)(a)4., Fla. Stat. The Plan Amendment responds to growth pressures in the Sand Hills STZ, modifies antiquated subdivisions, and furthers numerous other general and specific goals, objectives, and policies of the Comprehensive Plan to promote well-designed, environmentally-protective, infrastructure-efficient, high- quality communities. Petitioner contends that the Plan Amendment is not supported by appropriate data and analysis regarding the protection of aquifer recharge areas. However, the evidence offered by Petitioner only established that she wants the Plan Amendment to be more protective. Petitioner's expert hydrogeologist, Dr. Kincaid, admitted that the County had taken "strong" and "aggressive" measures in the Plan Amendment to protect water quality, but said he wished the County had done more to address water withdrawals. There was no evidence presented indicating that there is insufficient water available to serve the Sand Hills STZ. The Northwest Florida Water Management District has exclusive authority to regulate water withdrawals in Bay County. See § 373.217(2), Fla. Stat. The Deer Point Lake Hydrologic Analysis is the principal data and analysis that the Plan Amendment is based upon. In addition, the Plan Amendment is supported by the analysis presented at the final hearing by Dr. Kincaid and Steve Peene. Petitioner did not present data and analysis showing that the Plan Amendment would be harmful to water resources. Petitioner contends that the Plan Amendment is not supported by data and analysis regarding impacts on species and habitats. Petitioner did not explain what additional data and analysis would be required regarding species and habitat when the lands affected by the Plan Amendment are already designated for residential and commercial development. Petitioner refers to comments made by the Fish and Wildlife Conservation Commission, but those comments are also unexplained, and are hearsay. The Conservation Element of the Comprehensive Plan addresses the protection of natural resources, species, and habitat. The Plan Amendment does not remove any goal, objective, or policy of the Conservation Element. Petitioner did not show the Plan Amendment would be harmful to species and their habitat. A large area where septic tanks are used can be expected to be a source of groundwater contamination because a significant number of septic tanks will fail. The Plan Amendment includes a new map which depicts priority areas for retrofitting existing parcels that use private wells and septic tanks and connecting the parcels to central water and sewer lines. Petitioner contends that the mapping is not supported by data and analysis. The priority areas were selected based on development density and proximity to Deer Point Lake. Those data are sufficient to support the mapping of priority areas. Petitioner produced no contrary data and analysis. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not supported by relevant and appropriate data and analysis. Urban Sprawl Petitioner contends that the Plan Amendment encourages urban sprawl, but her evidence was not persuasive. According to Petitioner's theory of sprawl, every rural town and village would be an example of sprawl because they all "leap frog" from urban areas over agricultural and rural lands. Leap frogging as an indicator of sprawl usually involves a leap from an urban area to an area of undeveloped rural lands which will be transformed into urban or suburban land uses. That is not the situation here. The Plan Amendment's application of modern planning principles to enhance the quality and functionality of an existing rural community does not indicate urban sprawl. Petitioner contends that the Plan Amendment triggers most of the 13 indicators of urban sprawl that are set forth in section 163.3177(6)(a)9., but she failed to prove the existence of any indicator. The Plan Amendment does not promote the development of a single use or multiple uses that are not functionally related. It does not promote the inefficient extension of public facilities and services. It does not fail to provide a clear separation between urban and rural uses. In summary, Petitioner failed to prove facts showing that the Plan Amendment constitutes a failure of Bay County to discourage the proliferation of urban sprawl. Other Compliance Issues Petitioner contends that the Plan Amendment's provisions regarding infrastructure were not shown to be financially feasible, but the record evidence shows otherwise. Bay County has water and sewer facilities with sufficient capacity to serve the Sand Hills STZ. Furthermore, the new law eliminated the financial feasibility provisions of section 163.3177. Petitioner contends that the Plan Amendment improperly changes the FLUM, but the Plan Amendment does not change the FLUM. The rural community STZs are overlays that do not change FLUM designations. Petitioner contends that the Plan Amendment does not address hurricane evacuation times, but did not show that there is any legal requirement for Bay County to address hurricane evacuation times for amendments affecting lands outside of areas of hurricane vulnerability. Petitioner alleges that the Plan Amendment is inconsistent with the requirements of section 163.3177 related to energy conservation and efficiency, but the law cited by Petitioner was eliminated by the new law. Petitioner stated at the final hearing that her real objection is that the Plan Amendment promotes subdivisions far away from employment centers. Growth in the Sand Hills STZ is likely to be affected by and run parallel to growth in the adjacent West Bay Sector Plan because it is a developing employment center. Furthermore, the Plan Amendment is designed to make the Sand Hills STZ more self-sustaining, which would reduce vehicle miles. Petitioner contends that the Plan Amendment does not include sufficient standards and measures for the implementation of its new policies. The Plan Amendment is primarily self- implementing, in that it sets forth specific conditions for development. In addition, the Plan Amendment includes guiding principles that can be used in the application of existing land development regulations (LDRs) or the adoption of new LDRs. There also are references in the Plan Amendment to other regulatory programs that will be used to implement the policies. Petitioner claims the Plan Amendment was not coordinated with Washington County, but she did not prove the claim. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment is in compliance. DONE AND ENTERED this 18th day of October, 2011, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2011.
The Issue Whether the Petition to Establish the Dovera Community Development District meets the criteria established in Chapter 190, Florida Statutes.
Findings Of Fact A The property which is the subject of the Petition in this case consists of approximately 410 contiguous acres. All of the subject property is located in unincorporated Seminole County. Petitioner presented the testimony of John R. Maloy. Maloy is Corporate Vice President of A. Duda & Sons, Inc. and Executive Vice President of The Viera Company, positions he has held for approximately eight years. The Viera Company, the Petitioner, is a wholly owned subsidiary of A. Duda & Sons, Inc. Maloy is responsible for planning and disposition of real estate assets. He is also responsible for those projects which have reached the development phase. It was Maloy's responsibility in this matter to select and work with the team of professionals who prepared the Petition. He also reviewed the contents of the Petition and approved its filing. Maloy identified Petitioner's Composite Exhibit B, which is a copy of the Petition and its attached exhibits as filed with the Commission. Maloy stated that, for purposes of clarification, a sentence should be added to page 3 of the Petition indicating that the current version of the Seminole County Comprehensive Plan is dated September, 1991. Maloy then testified that, to the best of his knowledge, the statements in the Petition and its attached exhibits are true and correct. Other witnesses testifying on behalf of Petitioner similarly confirmed the accuracy of the Petition and its attached exhibits, as supplemented at hearing. The Viera Company, a Florida corporation, is owner of 100 percent of the real property to be included in the District. As required by statute, the owner has given its written consent to the establishment of the proposed District. Maloy was designated as the agent of The Viera Company to act on its behalf with regard to any matters relating to the Petition. No real property within the external boundaries of the District is to be excluded from the District. All of the land to be included in the District is the subject of a DRI Development Order which has been approved by the Commission. The five persons designated in the Petition to serve on the initial board of supervisors are: Jack Maloy 135 Highway A1A North Satellite Beach, FL 32937 Don Spotts 1113 Tuskawilla Road Winter Springs, FL 32708 David Duda 7979 Dunstable Circle Orlando, FL 32817 Tracy Duda 1601 Highland Road Winter Park, FL 32789 Donna Duda 2436 Mikler Road Oviedo, FL 32765 All of them are residents of the State of Florida and citizens of the United States. Existing residential communities are located on the north and west sides of the proposed District. To the south and east, the proposed District is generally bordered by the Seminole County Expressway and by a large undeveloped tract to the south. The land in the area to be included in the proposed District is currently undeveloped and is used for agricultural purposes, principally cattle grazing. All of the land to be included in the District has been planned as a single, mixed-use community to be developed pursuant to a development order for the DLI Properties Development of Regional Impact approved by the Commission on October 10, 1989, and issued to Duda Lands, Inc. Duda Lands, Inc. is now The Viera Company. Creation of the District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. The proposed District is a mechanism for financing infrastructure, and any change that might be made in the future would be subject to all requirements and conditions specified by statute. For example, establishment of the District will result in no change with respect to the present requirement that the District donate utility lines to the County. The proposed development of lands to be included in the District contemplates construction of significant commercial and office/showroom space, together with some residential units and hotel rooms over a twelve-year period. Creation of theproposed District will not constitute any change in the basic character of the development. With respect to the provision of infrastructure and services, it is presently anticipated that the CDD will construct or otherwise provide for a surface water management system, roads, street lighting, landscaping, culverts, and water and sewer facilities. With Seminole County's consent, the CDD will also exercise other special powers, as authorized under Section 190.012(2), Florida Statutes, for the purpose of providing facilities for parks and recreation, security, and mosquito control. Capital costs of these improvements are presently intended to be borne by the District. There is no intent to have the District apply for any of the private activity bond allocation monies available. Mr. Maloy testified that Petitioner has no intent to have the District exercise its ad valorem taxing authority. Mr. Maloy's unchallenged and unrefuted testimony in this regard is accepted. From the perspective of The Viera Company, creation of the proposed District is important for the construction, operation, long-term management and maintenance of major infrastructure for the development. Mr. Maloy testified that the CDD the best alternative for delivering the needed community development facilities and services and that the creation of the CDD will also help ensure that District residents pay for the costs of the necessary infrastructure that will be constructed to serve them. In the present economic climate, a developer's access to the money necessary for the provision of needed infrastructure is very limited. One of the few avenues available is the bond market. The CDD will permit access to this source of funds to provide capital to build the necessary infrastructure. To address issues related to planning, Petitioner presented the testimony of Brian C. Canin. Canin is President of Canin Associates Urban and Environmental Planners, a planning and consulting firm. He has held that position since the firm's inception in 1980. Canin has extensive experience with Developments of Regional Impact and in planning and development of other large-scale projects, as well as in reviewing comprehensive plans. Canin was qualified at the hearing as an expert in land use planning. Canin was coordinator for the consulting team which prepared the DLI Properties DRI. He prepared and submitted the application for development approval encompassing all of the property located within the external boundaries of the proposed district. He also participated in all of the hearings. With respect to the Dovera CDD petition, Canin worked as part of the project team, providing supporting materials for the Petition. Canin identified Exhibit 5 to the Petition as a map prepared by Canin Associates for the DRI which depicts the land use plan for the proposed District. He indicated that Canin Associates later provided the map to Gee & Jenson (Engineers, Architects and Planners) for use in compiling the Petition. Canin also identified an updated version of Exhibit 5 to the Petition. He indicated that the version contained as an attachment to the Petition was submitted with the DRI. In the course of the hearings held on the DRI and during the approval of the Master Plan, certain changes were made to the land uses. Petitioner's Exhibit E represents the land uses currently proposed and approved for the area encompassed by the proposed District. Canin noted that the updated version of the land use plan includes a revision of the typical roadway section. Petitioner had been informed by County staff that the typical roadway section initially submitted by the developer did not meet the standards for a County road. The roadway section, which meets the standards for a county-owned road, was drawn to show that the road could meet those specifications without changing the amount of buildable acreage within the proposed development. This means that the existing right-of-way can accommodate a change, if necessary, to meet County-owned road standards. There will be no change in the DRI requirements with respect to buildable acres. Encompassing approximately 410 acres, the proposed land uses for the area within the Dovera CDD comprise a Planned Unit Development consisting of 512 multi-family residential units and related commercial, institutional, recreational, and other uses. The proposed development includes over 247,000 square feet of commercial space and more than two million square feet devoted to office and office/showroom space. The plan also includes 250hotel rooms. The development is set within environmental open spaces that are integrated into stormwater facilities and roadways. A copy of the September, 1991 Seminole County Comprehensive Plan was admitted into evidence as Petitioner's Exhibit F. Based on his review of the Seminole County Comprehensive Plan, Canin testified that the proposed district is consistent with the Seminole County Comprehensive Plan. In addition, project approval required numerous reviews in the course of the DRI process, as well as various hearings conducted by the County Land Planning Agency and Board of County Commissioners. Unless the project had been consistent with the Seminole County Comprehensive Plan at all these points in time, the developer would not have been allowed to proceed. Canin also testified that he had reviewed the State Comprehensive Plan found in Chapter 187, Florida Statutes, and that, in his opinion, the proposed District is consistent with the State Comprehensive Plan. He noted that Section 187.201(18), Florida Statutes, provides for the creation of partnerships among local governments and the private sector which would identify and build needed public facilities. Canin also identified Section 187.201(20) which encourages the coordination of transportation infrastructure to provide major travel corridors and enhance system efficiency. Coordination of the Red Bug Lake Road construction and the proposed District's involvement in its financing are examples of how the proposed district fulfills this policy. Canin further testified that Section 187.201(21) permits the creation of independent special taxing districts as a means of lessening the burden on local governments and their taxpayers, and also encourages the use of such districts in providing needed infrastructure. Based on his extensive experience with Developments of Regional Impact, Canin testified that creation of the proposed District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. The District's activities are subject to the regulatory and permitting authority of the county, including the DRI approval process. From a land use perspective, the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Requiring DRI approval, the project was designed from the outset using an integrated land use plan, the purpose of which was to integrate diverse systems into one common plan. Canin testified that the proposed District is the best available alternative for delivering community development services and facilities to the area that will be served by the District. According to Mr. Canin, the proposed District will facilitate long-term financing of necessary infrastructure while providing a perpetual entity capable of operating and maintaining those systems and facilities. In Mr. Canin's opinion, private development would not be as advantageous because a private developer could not provide the same guarantees with respect to long-term operation and maintenance. Finally, based on his familiarity with the type and scope of development as well as the available services and facilities locate din the area of proposed development, Canin testified that the District's services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. He noted that transportation services were taken into account in the DRI process and are thoroughly integrated into the local comprehensive plan. To address engineering-related matters, Petitioner offered the expert testimony of Fred A. Greene. Greene is President, Chairman, and Chief Executive Officer of Gee & Jenson Engineers-Architects-Planners, Inc., an engineering and planning firm. He has held these positions for a combination of sixteen years. Greene is a registered engineer in Florida and personally has been involved in a number of DRI-related projects. He has a wide range of experience in providing engineering services relating to the use and operation of special districts, including community development districts. He advises districts on construction matters, design and maintenance, beginning with permitting for major infrastructure. Greene was qualified at the hearing as an expert in civil engineering and in land development, specializing in special districts. Greene played an active role in preparation of the documents required to establish the Dovera CDD. He visited the site and reviewed designs prepared by others for the water management system, the roadway system, and the water and sewer facilities. He also assisted in the preparation of the cost estimates contained in the Petition. The land within the proposed District is not presently developed and is primarily used for cattle operations. The land uses adjacent to the proposed district include residential communities to the north and west. The Seminole County Expressway is east of the proposed District and the land to the south is vacant. The existing drainage basins and outfall canals, the existing major trunk water mains, sewer interceptors and lift stations are identified in Petitioner's Composite Exhibit B, attached Exhibit 6. The land presently is drained by a series of ditches installed for agricultural purposes, the water flowing from west to east before discharging through Bear Creek into Lake Jessup. The proposed District is currently expected to construct the water management system, water and sewer facilities, internal roadways, security, mosquito control, and parks and recreation facilities. Seminole County will provide potable water through the existing twelve-inch lines. The District will construct water mains along the internal roads and later transfer title to the County. There is no plan to have the District provide water service to the development. With respect to the provision of sewer service and facilities, Petitioner plans to have the District construct a collection system along with lift stations and force mains that will discharge to the County's Iron Bridge Treatment Plant. These facilities will also be dedicated to the County. There is no plan to have the District provide sewer service to the development. The Petitioner plans to have the District construct and/or maintain within its boundaries a system of lakes, dry retention areas, wet retention areas, wetlands, flowways, culverts and control structures to accommodate surplus stormwater. Discharge would be through control structures and flow north through a system of existing canals to Lake Jessup. The Petitioner also expects the District to be involved in the construction and maintenance of roads. The roads would be constructed to applicable Seminole County standards, and to the extent that the roads remain district roads, the District will maintain them. The Seminole County Expressway is a N/S roadway presently under construction along the eastern boundary of the District. Realigned Red Bug Lake Road is presently under construction by Seminole County pursuant to a joint infrastructure agreement with Duda Lands, Inc. The agreement requires cost participation on that part of realigned Red Bug Lake Road which runs through the District. The District is expected to assume the developer's responsibility for that portion of realigned Red Bug Lake Road which runs through the District. The proposed District expects to purchase a truck and sprayer to assist in mosquito control within its boundaries. The District will be responsible for this activity, either by contract or by using its own staff. The proposed District currently plans to construct, operate and maintain facilities for parks and recreation. These facilities may include passive parks, playgrounds, pedestrian systems, bike paths, boardwalks and nature trails. With respect to the proposed District's current plans for security, in addition to gates, fences and similar installations related to security, the District may supplement security with additional staff and, where practical, may install automatic security devices. Exhibit 7 to the Petition shows the estimated infrastructure construction schedule and costs for the proposed District based on 1991 dollars. The anticipated schedule is for work to be performed by the Dovera CDD over the next twelve years. Unlike the DRI which has phases triggered by trips, the CDD phasing is premised on financing and construction engineering. However, the anticipated timetable in Exhibit 7 to the Petition is consistent with the schedule for development of the land. Based on his experience with special districts and DRI-related projects, Greene testified that creation of the proposed District will not constitute any change to the DRI development, its plan, its timing, its design, or anything else related to the DRI. Mr. Greene's unrefuted testimony established that the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as a functional interrelated community. A large tract lying adjacent to a major expressway, having been planned as a DRI and approved subject to issuance of a development order, is developable as a functional interrelated community. In this instance, all of the infrastructure systems, including those serving nonresidential areas of the development, are interrelated and have been purposefully designed to function as a single system. Greene's unchallenged testimony established that the proposed District is the best available alternative for delivering the proposed services and facilities to the area that will be served by the District. Although property- owners' associations constitute one alternative for the delivery of community development services and facilities, they are unable to finance infrastructure. In addition, regional water management districts prefer to have CDDs provide services because of their stability and record for collection of assessments. Being units of special-purpose local government, CDDs are generally perceived as being more stable than informal associations. While private development is another alternative, it cannot provide the same guarantees as CDDs with respect to operation and long-term maintenance of community development services and facilities. It is Mr. Greene's opinion that the proposed District's community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. The project infrastructure will be designed and constructed to state or county standards for the various items of work and would therefore be consistent with the local development regulations and plans. The District will also be subject to all permit requirements and conditions of the development order. Mr. Greene testified that the area to be served by the proposed District is amenable to separate special-district government because the area is large enough to support necessary staff to maintain and operate the proposed system. The District also has specific authority and a specific mission. Based on his experience with other districts of this size and larger that have been in existence for more than twenty years, Greene concluded that the proposed Dovera CDD will prove to be a successful operation. Dr. Henry H. Fishkind, President of Fishkind & Associates, Inc., an economic and financial consulting firm, prepared and presented the economic impact statement which accompanied the Petition. In addition to providing economic forecasting services, Fishkind also provides financial advice to both public and private sector clients, including special districts. At the hearing, Fishkind was qualified as an expert in economics, financing and statistics, including infrastructure financing and the use of special taxing districts. In addition to preparing the economic impact statement (EIS), Fishkind has assisted The Viera Company in assessing the financial feasibility of the proposed District. Fishkind confirmed the accuracy of the information contained in the EIS. The EIS was prepared, in part, to meet the statutory requirements of Chapter 120, Florida Statutes. At the hearing, Fishkind summarized the findings contained in the EIS. Seminole County and the State of Florida were identified as the two governmental entities which would be affected by the processing of this Petition and ongoing review and oversight of the District. Seminole County received the Petition for review and was paid a $15,000 filing fee to cover expenses related to processing the application. This fee is expected to adequately cover those costs. The County will have the option of reviewing the District's proposed budget each year. Dr. Fishkind does not anticipate that the County will incur any other direct costs by virtue of establishment of the District. Dr. Fishkind testified that Seminole County and its citizens will also receive some benefits by virtue of establishment of the District. The District will provide a mechanism to facilitate the financing and ongoing operation and maintenance of infrastructure for the project. In Dr. Fishkind's opinion, the District not only restricts the costs for needed facilities and services to those landowners who benefit from them, but, because it is an independent special-purpose government, also frees the County from any administrative burden related to management of these facilities and services. In addition, the District should help to assure compliance with the development order conditions as they relate to infrastructure. With respect to the State, the Bureau of Local Government Finance in the Office of the Comptroller will review certain financial reports that all special districts must file. The cost of processing one additional report will be minimal. In addition, the Department of Community Affairs ("DCA") also has certain reporting requirements with which the District must comply. The costs to the DCA are partially offset by a required annual fee imposed on all special districts. The EIS also analyzed the expected costs and benefits to the citizens of Florida and the state at large. According to Dr. Fishkind's testimony, Chapter 190 encourages planned large-scale communities such as that within the proposed District, and the Dovera CDD would satisfy this legislative intent. The District is also intended to serve as a way to ensure that growth pays for itself, and that those who receive the benefits absorb the costs. Dr. Fishkind testified that, in addition to providing an improved level of planning and coordination and ensuring long-term operation and maintenance of needed facilities and services, the District would also promote satisfaction of state and local requirements for concurrency. Dr. Fishkind's unchallenged and unrefuted testimony in this regard is accepted. Dr. Fishkind also analyzed costs and benefits to the Petitioner. The costs include preparation of the Petition and all of the underlying analysis devoted to the project by team members. Dr. Fishkind testified that, in addition, the Petitioner, as landowner, will be the largest single taxpayer for some time, and will bear the largest portion of the donation of certain rights- of-way and easements. The Petitioner is also expected to provide certain managerial and technical assistance to the District, particularly in the early years. Benefits to the Petitioner include the District's access to the tax exempt bond market and other capital markets which would otherwise be unavailable. Another benefit to the Petitioner flows from the assurance that concurrency requirements will be met and that a stable, long-term entity is in place to maintain necessary infrastructure. Because any other similarly-situated landowner could also petition for establishment of a CDD, the granting of the Petition does not give this developer an unfair competitive advantage. The anticipated costs and benefits to persons who ultimately buy land and/or housing or rent commercial space within the proposed District ("Consumers") were also analyzed. In addition to city, county, and school board taxes or assessments, Consumers will pay certain assessments for the construction and maintenance of necessary infrastructure. The consumers should, in turn, have access to first quality public facilities and high levels of public service in a development where the necessary infrastructure will be maintained even after the developer is no longer involved. Ultimately, the statute provides a mechanism where Consumers may control the board of supervisors and determine the type, quality and expense of essential district facilities and services, subject to County plans and land development regulations. The EIS analyzed the impact of the District on competition and the open market for employment. Although there may be a transitory competitive advantage because of lower cost financing and access to capital, any advantage is not exclusive to The Viera Company. Although the CDD itself will not have a measurable impact on the open market for employment in Seminole County, Dr. Fishkind believes that access to capital markets may nonetheless have some positive effect on the development of employment. According to Dr. Fishkind, the District's potential effect on the open market for employment will likely be enhanced when compared to private development because CDDs are subject to government-in-the-sunshine and public bidding laws. Similarly, while anticipating no measurable impact on small and minority businesses as a direct result of establishing the Dovera CDD, Dr. Fishkind testified that such businesses may be better able to compete in the development because the District must operate according to government-in-the- sunshine and public bidding laws. Data supplied by The Viera Company and Gee & Jenson was used by Dr. Fishkind in performing his economic and financial analysis. Based on the result of his financial studies and analyses, Fishkind concluded that the proposed District is expected to be financially sound and able to fulfill its economic obligations. The expected general financial structure of the proposed District is based on a system of special assessments to defray the costs of its infrastructure. These special assessments would be imposed pursuant to Chapter 190, using the procedures outlined under Chapter 170 or Chapter 197, and would be pledged to secure bonds issued for the necessary improvements. It is not anticipated that the District will use any ad valorem taxation. This proposed financial structure for the Dovera CDD is very similar to that used successfully in many other CDDs in Florida. Dr. Fishkind testified that the financial structure is significantly different from that employed by a Tax Increment Financing District or TIF. A TIF is a dependent district the financial structure of which is premised on a "frozen" tax base of a particular area. TIF bonds are then repaid by the increase in real estate value within that area. This structure usurps certain taxes that would otherwise accrue to the local general-purpose government at large. TIFs are sometimes used in community redevelopment areas. Unlike a TIF, a CDD is actually an independent district with limited powers set out in the statute. A CDD's assessments and taxes do not in any way impact the County's taxing or assessment powers. Although a CDD may borrow money, the debts of a CDD cannot become the debt of any other governmental entity without its consent. In addition to the proposed District, there are several other available alternatives for the provision of community infrastructure, including private development, homeowners' associations, county provision, and dependent districts such as MSTUs or MSBUs. Dr. Fishkind testified that, from a financial perspective, and based on an analysis of other options available, the proposed District is the best available alternative for delivering community development services and facilities to the area that will be served by the District. According to Dr. Fishkind, of these alternatives, only a CDD allows for the independent financing, administration, operation and maintenance of infrastructure while permitting residents to exercise increasing control over the District's governing board. Although independent of the county commission and enabling district residents to exercise control as a governing board, a homeowners' association would not be capable of undertaking the financial responsibility necessary to pay for the required infrastructure. Private developers do not have access to the tax-free bond market, and cannot provide the stability of long-term maintenance of infrastructure. Provision by the county or by a MSTU or MSBU would require the county to administer, operate and maintain the needed infrastructure. Dr. Fishkind testified that, from a financial perspective, and based on a review of the applicable plans, the CDD is consistent with the State and Seminole County Comprehensive Plans. Although CDDs are not directly mentioned in the Seminole County Comprehensive Plan, the proposed District is consistent with the plan's intent that growth should pay for itself. Based on his familiarity with the design of the proposed District and his experience with other districts of a similar size and configuration, Fishkind concluded that the area to be included in the District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. All the infrastructure for the proposed development has been planned as a unit and so should be expected to function as an interrelated system. It was also Fishkind's opinion, after reviewing the availability of the existing community development services and facilities in the area to be served by the proposed District, that the community development services and facilities expected to be provided by the District are not incompatible with the capacity and uses of existing local and regional services and facilities. The current assistance provided by the developer with respect to the development of Red Bug Lake Road and the Seminole County Expressway provides an example of infrastructure compatibility. Finally, taking into account the governing structure of the proposed District and the experience of other special districts in Florida, Fishkind concluded that the area that will be served by the proposed District is amenable to separate special-district government. It is Dr. Fishkind's opinion that an interrelated community created in compliance with a comprehensive master plan and specific infrastructure requirements represents an ideal circumstance within which to foster development of a CDD. Petitioner also presented the testimony of Gary L. Moyer. Moyer is President of Gary L. Moyer, P.A., a firm engaged in providing consulting and management services to special districts. He provides numerous services to approximately 33 special districts, 25 of which are CDDs. These services include planning of infrastructure, financing, implementation and the award and oversight of construction contracts. Upon completion of construction, he oversees the day-to-day operation and maintenance of the infrastructure. He has provided these services for approximately fifteen years. At the hearing, Moyer was qualified as an expert in special district governance and management. Moyer has been involved with CDDs ranging in size from only 28 acres to as many as 13,000 acres. Moyer testified that the proposed Dovera CDD would be an average size district among those providing primarily commercial and industrial land uses. CDDs operate pursuant to statute and must comply with requirements similar to those imposed upon general-purpose local governments. CDDs issue bonds to finance necessary infrastructure and typically repay this bonded indebtedness through imposition of non ad valorem assessments. The collection of these non ad valorem assessments has been accorded equal dignity with the collection of property taxes. Comparing other alternatives for the provision of community infrastructure, such as private development, property-owners' associations, and provision of services and facilities by local governments, Moyer testified that the proposed District is the best alternative for providing the contemplated services and facilities to the area that will be served by the District. The singular purpose of a CDD is to provide infrastructure to new communities. Although other entities may provide such facilities and services, none of them possess the focus which is characteristic of CDDs. Moyer also concluded, based on his familiarity with the land area that is to be included in the proposed District and his experience with several CDDs having similar land use characteristics, that the area is amenable to separate special district governance. Moyer also expressed the opinion, based on his experience as manager of other districts of similar size and configuration, that the area of land to be included in the proposed District is of a sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional interrelated community. The District appears to have the ability to provide the necessary infrastructure in a cost-effective manner to the lands to be included within its boundaries. With respect to the proposed District's anticipated use of County services, agreements with the tax collector and property appraiser for the collection of special assessments under Chapter 197, Florida Statutes, may be used. Such agreements are commonly used by other special districts. To the extent these services are used, the County is compensated by the District for these expenses.
Conclusions On March 12, 1992, a public hearing was held in this matter. The hearing was held in the Chambers of the Seminole County Commission, 1101 East First Street, Sanford, Florida, before James W. York, Hearing Officer of the Division of Administrative Hearings.
The Issue The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.
The Issue Whether Petitioner, K. S. Ravines Corporation, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. The Applicant, K. S. Ravines Corporation, is the owner of real property located in Middleburg, Clay County, Florida. The Applicant's property, known as the "The Ravines," is being developed as a 435-acre residential and golf course development. Development of the Property; Government Action Relied upon by Silver Sands. On or about June 1, 1990, the Applicant entered into a Purchase and Sale Agreement agreeing to purchase The Ravines. Subsequent to the execution of the Purchase and Sale Agreement, the Applicant pursued a due diligence effort. In particular, the Applicant contacted Clay County to confirm that The Ravines had been zoned as a Planned Unit Developed as represented by the seller of The Ravines. The Applicant also sought to confirm that the property possessed the development capabilities associated with the zoning. In response to the Applicant's inquiries, Keith I. Hadden, then Director of Development for Clay County, informed the Applicant of the following in a letter dated August 7, 1990: The property commonly known as The Ravines, as shown on that certain map of J. M. Ard & Associates, Inc., dated May 30, 1990, (Job No. 3751B), together with a parcel commonly referred to as the McCumber Contracting Parcel as shown on said map, and the access road from County Road 218 to the main property of The Ravines commonly known as Ravines Road (all hereinafter "The Ravines") is currently zoned "PUD" Planned Unit Development. . . . Mr. Hadden also confirmed that The Ravines was approved for development of 261 single family lots, 49 condominiums, 107 hotel units, and 60 patio homes; a total of 477 units. Silver Sands' Detrimental Reliance. In reliance upon Mr. Hadden's representations as Clay County Director of Planning, the Applicant purchased The Ravines for $10,709,423.00. At the time of the purchase the golf course was valued at $6,900,000.00. The Applicant purchased 168 single-family lots (44 developed and 124 undeveloped) and 60 undeveloped patio home lots. The undeveloped lots and the existing developed single- family lots purchased by the Applicant were valued at $3,943,000.00. The Applicant also spent $495,115.00 to make capital improvements to The Ravines after it purchased The Ravines. Rights that will be Destroyed. In January 1992 Clay County adopted a comprehensive plan pursuant to Part II, Chapter 163, Florida Statutes. The Ravines was designated with a land use designation in the plan of "Rural Residential." The "Rural Residential" land use classification of the Clay County Comprehensive Plan allows development of one residential unit per one acre of land. As a result, The Ravines may be developed at a total of 435 units instead of the 477 units that Clay County informed the Applicant The Ravines could be developed for in the August 7, 1990, letter from Mr. Hadden. As a result of the "Rural Residential" land use classification, the total developable lots at The Ravines would be reduced from 228 lots to 186 lots, or a reduction of 42 lots. This reduction represents a reduction of 18.4% of the total lots purchased by the Applicant. It is possible that this reduction could result in an 18.4% loss of the $3,943,000.00 paid for the lots, or approximately $496,000.00. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue The issues in these cases are whether two community development district petitions should be granted: the first, a Petition to Contract Lakewood Ranch Community Development District 2; and the second, a Petition to Establish Rule [sic] for Lakewood Ranch Community Development District 5.
Conclusions Under Section 190.003(6), Florida Statutes (2000), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." (All of the following statutory citations are to the year 2000 codification of the Florida Statutes.) Sections 190.006 through 190.046 constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011 enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012 lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems, facilities, and basic infrastructures for: water management; water supply, sewer, and wastewater management; needed bridges and culverts; CDD roads meeting minimum county specifications, street lights, and certain mass transit facilities; investigation and remediation costs associated with cleanup of environmental contamination; conservation, mitigation, and wildlife habitat areas; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.046(1) provides for the filing of a petition for contraction of a CDD. Under paragraphs (f) and (g) of Section 190.046(1), petitions to contract a CDD by more than 250 acres "shall be considered petitions to establish a new district and shall follow all of the procedures specified in s. 190.005." Section 190.005(1)(a) requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). District 2 and SMR have done so. Section 190.005(1)(b) requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments, as well. District 2 and SMR have met those requirements. Section 190.005(1)(c) permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Manatee County has exercised this option and has adopted a resolution in support of the contraction of District 2 and establishment of District 5. Section 190.005(1)(d) requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. District 2 and SMR have met those requirements. Under Section 190.005(1)(e), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. 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. Whether the 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 will 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. Factor 1 Some statements in the original petition to contract District 2 were not true and correct and had to be revised. As revised, all statements in the petition were shown by the evidence to be true and correct. All statements in the petition to establish District 5 were shown by the evidence to be true and correct. There was no evidence to the contrary. Factor 2 In these cases, the evidence was that the proposed contraction of District 2 and establishment of District 5 are not inconsistent with any applicable element or portion of the state comprehensive plan or of the local government comprehensive plan. There was no evidence to the contrary. (A different and more detailed review is required to determine that future development within the proposed CDDs will be consistent with all applicable laws and local ordinances and the Manatee County Comprehensive Plan. Establishment of a CDD does not constitute and should not be construed as a development order or any other kind of approval of the development anticipated in the CDD. Such determinations are made in other proceedings.) Factor 3 In these cases, the evidence was that the areas of land within District 2, as proposed to be contracted, and within proposed District 5 are of sufficient size, are sufficiently compact, and are sufficiently contiguous for each proposed CDD to be developable as a functional, interrelated community. There was no evidence to the contrary. Factor 4 In these cases, the evidence was that District 2, as proposed to be contracted, and proposed District 5 are the best alternatives available for delivering community development services and facilities to the areas that will be served by those two proposed CDDs. There was no evidence to the contrary. Factor 5 In these cases, the evidence was that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. Factor 6 In these cases, the evidence was that the areas to be served by District 2, as proposed to be contracted, and proposed District 5 are amenable to separate special-district government. There was no evidence to the contrary. REPORT AND CONCLUSIONS SUBMITTED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON 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 22nd day of January, 2001. COPIES FURNISHED: Erin McCormick Larrinaga, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Jose Luis Rodriguez, Esquire Governor's Legal Office The Capital, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2105 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
Findings Of Fact The Resource Recovery Facility The purpose of the proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,352 tons of refuse each day, and generate up to 62.5 megawatts of electrical power. The ultimate capacity of the facility is 3,300 tons of refuse each day, and a generating capacity of 96.1 megawatts. The proposed RRF complex will include a gatehouse and weigh station, refuse receiving and handling building, turbine generator building, administrative building and two landfills for the disposal of ash residue and non- processable solid waste. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse and receiving building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is a predominantly undeveloped 248-acre parcel of land situated at the southeast intersection of US 441 (State Road 7) and State Road (SR) 84, an unincorporated area of Broward County. The site is bounded on the north by the right-of- way for I-595, the northerly part of its east boundary by the proposed Ann Kolb Park, the southerly part of its east boundary and the south by the South Fork of the New River Canal (New River Canal), and the west by US 441. The uses surrounding the site are mixed. Located east of the site, and south of the proposed Ann Kolb Park, is a large fossil fuel electric generation facility owned by Florida Power & Light Company (FP&L). To the south, across the New River Canal, is a mixed residential- commercial area of single family residences, duplex residences, and marine-oriented businesses (marinas and fish wholesalers). To the west of US 441 is a mixture of light, medium, and heavy industry, including industrial office space, auto salvage facilities and prestressed concrete pouring yards. North of the right-of-way for I- 595, and SR 84, is a mixture of strip commercial and residential usage. Although the site itself is predominantly unoccupied pasture land, some of its lands have been developed. The southern portion of the site, abutting the New River Canal, is occupied by a marine engineering firm which operates dry dockage and related facilities (heavy industrial use). The other uses currently existing on the site are for a nursery and the sale of prefabricated sheds. Bisecting the site is a parcel of land presently being developed by the City of Fort Lauderdale (City) for a sludge composting facility. Broward County proposes to locate the RRF south of the City's facility, and the landfills north of the City's facility. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan) and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF, with attendant land fill, is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans. Prior to rezoning, various portions of the site were zoned A-I Limited Agricultural, B-3 General Business, M-3 General Industrial, and M-4 Limited Heavy Industrial. Permitted uses ranged from cattle and stock grazing (A-1) to asphalt paving plants, junk yards and the storage of poisonous gas (M-4). On March 16, 1984, the Board of County Commissioners of Broward County approved the rezoning of the site to a Special Use Planned Unit Development District (PUD), and approved the RRF conceptual site plan. The proposed RRF, and attendant landfill, constitute a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, are permitted nonresidential uses. The Department of Community Affairs, the Department of Environmental Regulation, and the South Florida Water Management District concur that the proposed RRF appears to be consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. South Broward Citizens for a Better Environment, Inc. (SBC) was the only party to contest the consistency of the proposed RRF with existing land use plans and zoning ordinances. SBC asserted that the proposed RRF violates: (1) the coastal zone protection element of the Broward County Comprehensive Plan, because the environmental impact assessment required by that element of the plan was inadequate or not done, (2) the urban wilderness inventory guidelines of the Broward County Comprehensive Plan, because the environmental effects of the proposed RRF on the area proposed to be designated as an urban wilderness area (proposed Ann Kolb Park) would outweigh the benefits of the project, and (3) Section 13 of Ordinance numbers 84- 6(2) and 84-7(2), which approved the rezoning for the site, because the impact assessment required by the Ordinances had not been prepared. While the coastal zone protection element and urban wilderness inventory guidelines of the Broward County comprehensive plan were germane to Broward County's decision to rezone the site and approve the development, they are not pertinent to this land use hearing. Broward County's decision is final, and these proceedings do not provide a forum to collaterally attack it. The relevance of SBC's assertions aside, the evidence presented established that the proposed RRF did not violate the coastal zone protection element, the urban wilderness inventory guidelines, or any other element of the Broward County Comprehensive Plan. SBC's assertion that the proposed RRF will violate Section 13 of the rezoning ordinances is ill- founded. Section 13 provides: PRIOR TO LANDFILL DEVELOPMENT, AN IMPACT ASSESSMENT SHALL BE PREPARED BY THE RESOURCE RECOVERY OFFICE OF BROWARD COUNTY TO ADDRESS THE POTENTIAL HYDROLOGICAL IMPACTS OF THE DEVELOPMENT OF THE LANDFILL ON ANN KOLB PARK. DATA AND INFORMATION UTILIZED TO OBTAIN FDER PERMITS WILL BE USED TO CONDUCT THIS ASSESSMENT. IN THE EVENT POTENTIALLY SIGNIFICANT IMPACTS ARE IDENTIFIED, A MANAGEMENT PLAN SHALL BE DEVELOPED TO OFFER RECOMMENDATIONS AND MITIGATIVE ACTIONS TO INSURE THE INTEGRITY OF ANN KOLB PARK. (Emphasis supplied) The evidence is clear that an impact assessment is only required before development commences. Consequently, the proposed RRF does not violate the rezoning ordinances. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel, a daily newspaper, on July 4, 1985, and also in the Florida Administrative Weekly on June 28, 1985.
The Issue Whether Respondent, IMT-LB Central Florida Portfolio, LLC (Respondent), committed a discriminatory practice in violation of Chapter 760, Florida Statutes (2009).1
Findings Of Fact Respondent owns and/or operates a residential rental property located at 4400 Martin’s Way, Orlando, Florida. The property, identified in this record as Village Park Apartments (Village Park), consisted of a two-story, multi-building, multi- apartment complex. Sometime in late October 2009, Petitioner leased an apartment at Village Park. Petitioner’s apartment was on the second floor and no other apartments were above his. Petitioner’s lease agreement required that Petitioner obtain and provide public utilities for his apartment. Although Petitioner claims he did not timely receive a copy of his lease in order to be on notice of this provision, the record is clear that after Petitioner became aware of the provision, he did not obtain public utilities for the apartment. Shortly after Petitioner received a bill for utility service for his apartment from Respondent in December 2009, Petitioner complained to governmental authorities about conditions at the apartment complex. With regard to the conditions of his living unit, Petitioner maintained there was a roof leak, a vanity pipe leak, and a non-working toilet. Ms. Johnson, an inspector for the City, came out to Village Park and inspected the unit. She found that the toilet and vanity required repair. She further determined that Respondent would need to get a certified roofing person to verify the condition of the roof, and to certify to the City that the roof was water tight. It was Ms. Johnson’s position that water damage was evident on the ceiling in Petitioner’s unit, and that Respondent would need to get a certified roofing person to verify the condition of the roof, as well as someone to restore the interior of Petitioner’s unit by repairing and/or painting the ceiling. An inspector from the Orange County Health Department also visited Village Park concerning a complaint about rats at the dumpster. Respondent timely addressed the rodent issue and the property is under contract with an extermination company that provides appropriate rodent deterrence. Respondent timely repaired the vanity leak and the toilet issue in Petitioner’s apartment. The roof issue, however, was not quickly resolved. Initially, Petitioner refused to allow Respondent into the unit to repair the ceiling. Ms. Johnson advised Petitioner that he would have to allow Respondent entry in order for them to be able to fix the ceiling and restore it to an appropriate condition. According to Ms. Johnson, the ceiling in Petitioner’s unit did not collapse as alleged by Petitioner. Ms. Johnson also noted that there was debris around the dumpster at Village Park. She was favorably impressed with the speed with which the maintenance crew cleaned up the mess at the dumpster site. Despite some delays in getting the roof inspection completed to Ms. Johnson’s satisfaction, all issues with Petitioner’s unit were resolved to the City’s satisfaction. Concurrent with the repair timeline to Petitioner’s unit, Respondent filed an eviction proceeding against Petitioner. That action progressed through the court, through mediation, and resulted in a stipulated settlement agreement. The Landlord/Tenant Stipulation was executed on January 27, 2010, and provided, in pertinent part: Defendant [Petitioner] agrees to place utilities in his own name at OUC no later than Feb. 3, 2010. * * * Defendant agrees to allow Plaintiff [Respondent] to enter his apartment for repairs on Feb. 1, 2010 between 9:00 a.m. and 5:00 p.m. Petitioner failed to abide by the terms of the stipulation. Ultimately the court issued a Final Judgment for Possession and Writ of Possession for Petitioner’s unit. Petitioner's claim that the eviction process was retaliation for the complaints made to the county and city authorities, belies the fact that Petitioner failed to honor the terms of the lease, and the stipulation reached in the eviction proceeding. Petitioner’s race was not directly or indirectly involved in any manner. Nor was Petitioner treated less favorably than a similarly situated party not of Petitioner’s race.
