1992-03-27 Stip. Stlmt. Agrmt. DCA/City STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
Petitioner, 1
vs. ) DOAH CASE NO. 91 -5962GM
CITY OF OKEECHOBEE, )
)
Respondent. )
)
STIPULATED SETTLEMENT AGREEMENT
Petitioner Florida Department of Community Affairs
(Department) and Respondent City of Okeechobee (City) hereby
stipulate and agree as follows:
GENERAL PROVISIONS
1 . Definitions. As used in this agreement, the following
words and phrases shall have the following meanings:
a. Act: The Local Government Comprehensive Planning
and Land Development Regulation Act, as codified in Part II,
Chapter 163, Florida Statutes (1987) .
b. Agreement: This stipulated settlement agreement.
c. Comprehensive Plan or Plan: The City of
Okeechobee Comprehensive Plan, as adopted by Ordinance No. 635 on
March 19, 1991 .
d. DOAH: The Florida Division of Administrative
Hearings.
e. In compliance or into compliance: Consistent with
Sections 163.3177, 163.3178 and 163.3191 , Florida Statutes,
Section 187.201 , Florida Statutes, the applicable regional policy
plan, and Chapter 9J-5, Florida Administrative Code, where such
rule is not inconsistent with Chapter 163, Part II, Florida
Statutes.
f. Notice: The notice of intent issued by the
Department to which was attached its statement of intent to find
the plan not in compliance.
g. Petition: The petition for administrative hearing
and relief filed by the Department in this case.
h. Remedial Action: A remedial plan amendment,
submission of support document or other action described in the
statement of intent or this agreement as an action which must be
completed to bring the plan into compliance.
i. Remedial Plan Amendment: An amendment to the plan
or support document, the need for which is identified in this
agreement, including its exhibits, and which the City must adopt
to complete all remedial actions. Remedial plan amendments
adopted pursuant to this agreement must, in the opinion of the
Department, be consistent with and substantially similar in
concept and intent to the ones identified in this agreement or be
otherwise acceptable to the Department.
j . Statement of Intent: The statement of intent to
find the plan not in compliance issued by the Department in this
case.
k. Support Document: The studies, inventory maps,
surveys, data, inventories, listings or analyses used to develop
and support the plan.
2. Entire Agreement. This is the entire agreement between
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the parties and no verbal or written assurance or promise is
effective or binding unless included in this document.
3. Approval by Governing Body. This agreement has been
approved by the City' s governing body at a public hearing
advertised in an advertisement published approximately 14 days
prior to the hearing in the manner prescribed for advertisements
in Section 163.3184(15) (c) , F.S. This agreement has been
executed by the appropriate City officer as provided in the
City's charter or other regulations.
4. Changes in Law. Nothing in this agreement shall be
construed to relieve either party from adhering to the law, and
in the event of a change in any statute or administrative
regulation inconsistent with this agreement, the statute or
regulation shall take precedence.
5. Other Persons Unaffected. Nothing in this agreement
shall be deemed to affect the rights of any person under the law
other than the parties.
6. Attorney Fees and Costs. Each party shall bear its own
costs, including attorney fees.
7. Effective Date. This agreement shall become effective
upon the last date of signing by the parties.
PART I
8. Purpose of Part I. The parties enter into Part I of
this agreement in a spirit of cooperation for the purpose of
avoiding costly, lengthy and unnecessary litigation and in
recognition of the desire for the speedy and reasonable
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resolution of disputes arising out of or related to the plan.
9. Department Powers. The Department is the state land
planning agency and has the power and duty to administer and
enforce the Act and to determine whether the plan is in
compliance.
10. Exhibits. Exhibits A and B are hereby incorporated by
reference. In the event of conflict between Exhibit A and
Exhibit B, the provisions of Exhibit B shall control.
11 . Adoption of Plan and Support Document. The City
provided the support documents and adopted the plan by ordinance
at a properly advertised public hearing held on March 19, 1991 .
12. Review of Plan and Finding of Noncompliance. After
reviewing the adopted plan the Department issued its notice and
statement of intent to find the plan not in compliance, and filed
the petition in this case to that effect.
13. Negotiation of Agreement; Intent. Subsequent to the
filing of the petition the parties conferred and agreed to
resolve the issues in the petition, notice and statement of
intent through this agreement. It is the intent of this
agreement to resolve fully all issues between the parties in this
proceeding.
14. Dismissal Recommendation. If the City completes the
remedial actions required by this agreement, including the
adoption of required plan amendments as set forth herein, the
Department shall request that the Administration Commission enter
an order dismissing this proceeding without imposing any sanction
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that might otherwise be imposed under the Act. Thereafter, the
Department shall take every action necessary to effectuate this
paragraph.
15. Filing and Continuance. This agreement shall be filed
with DOAH by the Department after execution by the parties and
shall constitute a joint request that DOAH continue this
proceeding for a time sufficient to allow the parties to complete
their responsibilities under the agreement. However, the
Department may request DOAH to schedule a hearing of this
proceeding at an earlier time, as provided in this agreement.
16. Retention of Right to Final Hearing. Both parties
hereby retain the right to have a final hearing in this
proceeding and nothing in this agreement shall be deemed a waiver
of such right.
17 . Description of Provisions not in Compliance and
Remedial Actions; Legal Effect of Agreement. Exhibit A to this
agreement is the statement of intent and contains a description
of the plan provisions found not in compliance by the Department
and remedial action needed to bring the plan into compliance. It
also constitutes an admission and stipulation by the Department
that if the described remedial actions are accomplished the plan
will be in compliance. Exhibit B contains additional detail
regarding some provisions not in compliance and remedial actions
needed for compliance. In the event of a conflict between
Exhibit A and Exhibit B, the provisions in Exhibit B shall
control.
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18. Remedial Actions to be Considered for Adoption. The
City agrees to consider for adoption by formal action of its
governing body all remedial actions described in Exhibit A (as
modified by Exhibit B) no later than the time period provided for
in this agreement.
19 . Transmittal hearing for remedial actions. Within 60
days after the effective date of this agreement the City shall
deliver to the Department, after a transmittal public hearing
pursuant to Section 163 . 3184 (3) of the Act, all remedial actions,
including all remedial plan amendments and support documents,
along with a transmittal letter describing the remedial action
taken for each part of the plan amended, including references to
specific portions and pages.
20. Review of Transmittal. The Department shall provide
the City with its objections, recommendations and comments on the
remedial amendments and support documents in the manner provided
in Chapter 9J-11, Florida Administrative Code, and Subsections
163 . 3184 (3) -(7) , Florida Statutes. If the City fails to deliver
or rejects any remedial plan amendment or support document
described in Exhibit A or Exhibit B, the Department may move for
a final hearing for this proceeding as provided in Paragraph 16
above.
21. Adoption or Approval of Remedial Plan Amendments.
Within 60 days after receipt of the Department's objections,
recommendations and comments, the City shall consider for
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adoption all remedial plan amendments and amendments to the
support document, and deliver the amendments and a transmittal
letter to the Department as provided in Subsection 163 . 3184 (7) ,
Florida Statutes, and Rule 9J-11. 011 (3) , F.A.C. The letter shall
describe the remedial action adopted for each part of the plan
amended, including references to specific portions and pages.
22 . Review of Adoptions and Notice of Intent. Within 45
days after receipt of the adopted remedial plan amendments and
support documents, the Department shall issue a notice of intent
pursuant to Section 163 . 3184, Florida Statutes, for the adopted
amendments in accordance with this agreement.
a. In Compliance: If the adopted remedial actions are
consistent with the recommendations in Exhibit A or Exhibit B,
the Department shall find the plan amendments in compliance and
shall request that DOAH relinquish jurisdiction and join the
Department in requesting that the Administration Commission adopt
a final order dismissing this proceeding and finding the plan, as
amended, in compliance.
b. Not in Compliance: If the remedial actions are
not adopted, or if the Department determines they are not
consistent with and substantially similar to the recommendations
in Exhibit A or Exhibit B, the Department shall issue a notice of
intent to find the plan amendments not in compliance and shall
forward the notice to DOAH for a hearing as provided in
Subsection 163 . 3184 (10) , Florida Statutes, and may request that
7
the matter be consolidated with the pending proceeding for a
single, final hearing. The parties hereby stipulate to that
consolidation and to the setting of a single, final hearing if
the Department so requests. The Department may also move for a
final hearing of this proceeding as provided in Paragraph 16
above.
Part II
24 . Purpose of Part II . The parties enter into Part II of
this agreement to provide funding to assist the City to undertake
the remedial actions necessary to bring the adopted plan
submitted pursuant to Subsection 163 . 3167 (2) , F.S. and Chapter
9J-12 , F.A.C. into compliance.
25. Liability. To the extent of funds received under this
agreement, the City hereby agrees to hold harmless the
Department, to the extent allowed by law, from all claims,
demands, liabilities and suits of third persons or entities not a
party to this agreement arising out of, or due to any act,
occurrence, or omission of the City, its subcontractors or
agents, if any, that is related to the City's performance under
this agreement.
26. Public Records. The City shall allow public access to
all documents, reports, papers, letters or other material,
subject to the provision of Chapter 119, Florida Statutes,
prepared or received by the City in conjunction with this
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agreement. The Department may unilaterally cancel this agreement
if the City refuses to allow public access to all documents,
papers, letters, or other material subject to the provisions of
Chapter 119, F.S. , and made or received by the City in
conjunction with the agreement.
27 . Availability of Funds. Payment of state funds pursuant
to this agreement is subject to and conditioned upon the total
release of authorized appropriations from the Local Government
Comprehensive Planning Assistance Program provided by law. The
State of Florida ' s performance and obligation to pay under this
Agreement is contingent upon an annual appropriation by the
Legislature as noted in Section 287 . 0582 , Florida Statutes.
28. Consideration.
a. As consideration for work performed under this
agreement, the Department agrees to pay a fixed fee of up to
$7, 500. 00. Payment will be based on the payment schedule and
other conditions contained in paragraph 29 below.
b. Use of Funds: Funds may not be used for the
purchase of equipment, fixtures, or other tangible property of a
nonconsumable and nonexpendable nature with an expected useful
life which exceeds the duration of this contract. Funds may also
not be used for attorney fees unrelated to this agreement.
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29. Method of Payment.
Deliverable Due Date Payment
Proposed remedial action No later than 60 $ 3 , 750. 00
days after execution
of agreement
Adopted remedial action No later than time $ 3, 750. 00
frames specified in
s. 163 . 3184 (7) , F. S.
for transmittal of
adopted plan amendments
Total $ 7,500. 00
The first payment will be made by the Department after
timely receipt of the deliverable which will be verified by the
Department to include all required proposed remedial action. If
the transmitted remedial actions are not received in accordance
with the schedule in this agreement, or if the Department in its
discretion determines that the transmitted remedial actions are
inconsistent with this agreement, the first payment shall not be
made. The final payment will be made after receipt of the
adopted remedial actions and issuance by the Department of a
Notice of Intent to find the plan in compliance. If the adopted
remedial actions are not received in accordance with the schedule
in this agreement, or if the Department determines that the
adopted remedial actions are not in compliance, the final payment
shall not be made and the City shall refund the first payment to
the Department within 30 days after issuance of the Notice of
Intent.
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30. Audit Requirements.
a. The City agrees to maintain adequate financial
procedures and adequate support documents to account for the
expenditures of funds under Part II of this agreement.
b. These records shall be available at all reasonable
times for inspection, review, or audit by state personnel and
their personnel duly authorized by the Department. "Reasonable"
shall be construed according to circumstances, but ordinarily
shall mean normal business hours of 8 : 00 a.m. to 5: 00 p.m. , local
time, Monday through Friday.
c. The City shall also provide the Department with
the records, reports or financial statements upon request for the
purposes of auditing and monitoring the funds awarded under Part
II of this agreement. Bills for fees or other compensation for
services or expenses shall be submitted in detail sufficient for
a proper preaudit and postaudit thereof.
d. The City shall include an accounting of these
funds under Part II of this agreement in the local audit prepared
by the City of the 1990-91 and 1991-92 fiscal years.
e. In the event the audit shows that all or a portion
of the funds provided under Part II, were not spent in accordance
with Chapter 9J-26, Florida Administrative Code, and the
conditions of this agreement, the City shall be held liable for
repayment to the Department of all funds not spent in accordance
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with these applicable regulations and agreement provisions within
thirty (30) days after the Department has notified the City of
such noncompliance.
f. The City shall retain all financial records,
supporting documents, statistical records, and any other
documents pertinent to Part II of this agreement for a period of
three years after the date of submission of the final
expenditures report or, if an audit has been initiated and audit
findings have not been resolved at the end of three years, the
records shall be retained until resolution of the audit findings.
g. Bills for any travel expenses shall be submitted
in accordance with Section 112 . 061, Florida Statutes.
31. Modification of Part II. Either party may request
modification of the provisions of Part II of this agreement.
Changes which are mutually agreed upon shall be made by written
correspondence from the Department, by the parties and
incorporated as part of this agreement.
This agreement contains all the terms and conditions agreed
to by the parties.
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In witness whereof, the parties hereto have caused this
agreement to be executed by their undersigned officials as duly
authorized.
DEPARTMENT OF COMMUNITY AFFAIRS CITY OF OKEECHOBEE
W lliam E. Sadowski
Secretary
3 - .27- 901, C--7,414 41, /„
Date Date
Attest:
City Clerk
Assistant General Counsel City Attorney
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EXHIBIT "A"
•
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
IN RE: CITY OF OKEECHOBEE )
COMPREHENSIVE PLAN )
ADOPTED BY ) DOCKET NO. 90-NOI-4702-(N)
ORDINANCE NO. 635 )
ON MARCH 19, 1991 )
STATEMENT OF INTENT TO FIND
COMPREHENSIVE PLAN
JOT IN COMPLIANCE
The Florida Department of Community Affairs hereby issues its
Statement of Intent to find the Comprehensive Plan of the City of
Okeechobee, .adopted by Ordinance No. 635 on March 19, 1991, Not In
Compliance based upon the Objections, Recommendations and Comments
Report (ORC Report) issued by the Department on December 23, 1990,
which is hereby incorporated by reference, and changes made to the
plan, as adopted, which were not previously reviewed by the
Department. The Department finds that the plan is not "in
compliance, " as defined in Section 163 .3184 (1) (b) , Florida Statutes
(F.S. ) , because it is not consistent with Section 163 . 3177 F. S. ,
the State Comprehensive Plan, the Central Florida Comprehensive
Regional Policy Plan, and Chapter 9J-5, Florida Administrative Code
(F.A. C. ) , for the following reasons:
I . DRAINAGE
A. Inconsistent provision. The inconsistent provision of
the plan under this subject heading is as follows:
1. The City has not adequately analyzed existing and
projected drainage facility needs and has addressed this deficiency
by adopting Drainage Subelement Policy 7 . 1, which states that the
City will undertake a stormwater management study to identify water
quality and drainage deficiencies. However, Policy 7.1 does not
include a timeframe for initiating and completing the drainage
study and the City has not committed to undertake the study within
a specified time. Rule 9J-5. 016 (4) , F.A.C.
B. Recommended remedial action. This inconsistency may be
remedied by taking the following action:
1. Revise Policy 7 . 1 to commit the City to undertake the
stormwater management study and to implement the results of the
study within a specified timeframe. The policy should include the
projected dates for completing the stormwater management study and
for revising the comprehensive plan to reflect the results of the
stormwater management study. Specify that amendments to the
comprehensive plan will be submitted to incorporate the results of
the stormwater management, study in the adopted plan including any
changes to the Future Land Use Map series and policy revisions
necessary to implement the stormwater management plan.
II . INTERGOVERNMENTAL COORDINATION
A. Inconsistent provision. The inconsistent provision of
the plan under this subject heading is as follows:
1 . The plan does not adequately address coordinating future
land uses with the Resource Management Plan for the Lower Kissimmee
River and Taylor Creek Drainage Basins. Although the City has
included objectives and policies which state that review procedures
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will be established to address coordination with the resource
management plan, the review procedures have not been described and
the resource management plan has not been discussed. Rules 9J-
5. 003 (68) , 9J-5.006 (3) (b) 6. and 9J- 5. 015 (3) (c) 1. , F.A.C.
B. Recommended remedial action. This inconsistency may be
remedied by taking the following action:
1. Expand the plan to include an analysis of the Resource
management Plan for the Lower Kissimmee River and Taylor Creek
Drainage Basins. and include an analysis of the suitability of
future land uses in order to support the goals of the resource
management plan. . Include objectives and policies which describe
the specific programs and activities including specific review
procedures the City will undertake to implement the resource
management plan. If necessary, revise the Future Land Use Map
series to be consistent with and further the resource management
plan. •
III . PROTECTION OF NATURAL RESOURCES
A. Inconsistent provisions. The inconsistent provisions of
the plan under this subject heading are as follows:
1 . The Future Land Use Map series does not depict
conservation land uses. Taylor Creek, which drains into Lake
Okeechobee, several isolated wetlands, and several relatively large
undeveloped tracts containing vegetative and wildlife communities
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exist within the City and are appropriate areas for designation as
a conservation land use. Rules 9J-5.006 (4) (a) 6. , 9J-5. 006 (4) (b) ,
and 9J- 5. 013 (2) (c) 9. , F.A.C. .
2 . The Future Land Use Map does not adequately protect
natural resources because an approximately 175 acre parcel that is
currently vacant and that contains several isolated wetlands is
depicted as Industrial land use on the Future Land Use Map series.
The parcel is adjacent to Taylor Creek which drains into Lake
Okeechobee and adequate development controls have not been
established to protect the creek and wetlands from the impacts of
development. The parcel is not presently served by sanitary sewer
and the expansion of services into this area has not been
specifically addressed. Additionally, the allocation of Industrial
land is not supported by data and analysis. Although the analysis
of projected land use needs indicates a need for only one
additional acre of Industrial land by the year 2000, the City has
allocated an additional 167 acres of Industrial land on the Future
Land Use Map series. Rules 9J-5. 006 (2) (c) 2 . , 9J-5. 006 (4) (a) 3 . , 9J-
5. 006 (4) (b) 3 . , and 4 . , F.A.C.
3 . Policies for the protection of environmentally sensitive
land and policies establishing development densities and
intensities do not adequately protect natural resources. Future
Land Use Element Policy 1 . 4 states that " [p]ermitted densities and
intensities in environmentally sensitive areas shall be as
established under Objective 2 and the Future Land Use Map. " No
intensity standards have been included under Future Land Use
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Element Objective 2 for Industrial, Commercial, and Public
Facilities land use categories and Residential densities allow 4
dwelling units per acre for single-family, 6 dwelling units per
acre for mobile home parks, and 10 dwelling units per acre for
multi-family housing. These densities, however, do not protect
environmentally sensitive areas. Additionally, Future Land Use
Element Policy 2 . 2 , which requires an environmental site review for
development proposals, exempts applications for single-family
residential structures from the site review process. Rules
9J-5. 006 (3) (c) 6. , and 7. , 9J-5. 013 (2) (c) 1. , 9J-5. 013 (2) (c) 3 . ,
9J-5. 013 (2) (c) 6. , ,and 9J- 5. 013 (2) (c) 9. , F.A.C.
B. Recommended remedial actions. These inconsistencies may
be remedied by taking the following actions:
1 . Revise the Future Land Use Map to depict conservation
land uses . Wetlands, floodplains, areas of high aquifer recharge
or natural karst formations, areas with native vegetative and
wildlife communities, and areas adjacent to surface water bodies
are suitable for conservation land use designations. Taylor Creek,
which drains into Lake Okeechobee, and the isolated wetlands
located within the City should be depicted as conservation areas on
the Future Land Use Map series. The conservation areas should
include appropriate buffer zones which prohibit all development
activity adjacent to environmentally sensitive areas.
2 . Revise the Future Land Use Map series to protect natural
resources by restricting development within and adjacent to
wetlands, Taylor Creek and other significant natural resources.
5
The City may choose to designate an entire parcel containing
isolated wetlands as a conservation area or may choose to depict
only the individual wetlands as conservation so long as a specified
buffer zone is established which prohibits all development activity
adjacent to the wetland and additional policies are adopted which
implement further development controls that adequately protect
natural resources. Include additional policies that require
clustering of development away from wetland areas of the site and
maintenance of upland buffers adjacent to the wetlands (specify the
minimum buffer width) . Restrict septic tank systems adjacent to
wetlands and Taylor Creek. Additionally, revise the allocation of
Industrial land depicted on the Future Land Use Map series to be
supported by adequate data and analysis indicating a projected need
for the amount of acreage allocated.
3 . Revise Policy 2. 1 to include densities or intensities for
all land use categories. Revise Policy 2 . 2 to delete the text
exempting single-family residential structures from the
environmental site review process unless the development proposal
is for a single dwelling unit that is not part of a larger
development and is clearly located in an area suitable for
development. Revise Policy 1.4 to reference additional policies
which establish less intensive land uses for environmentally
sensitive areas and delete the reference in Policy 1.4 regarding
the densities and intensities established under Objective 2 for
environmentally sensitive areas. The additional policies should
specify the land use categories and the less intensive densities
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and intensities permitted in environmentally sensitive areas as
well as the specific requirements for site review, clustering
development on suitable portions of environmentally sensitive
areas, the extent of natural buffer zones applicable in these areas
and any additional development controls that will be implemented to
ensure the protection of environmentally sensitive areas.
IV. FUTURE LAND USE
A. Inconsistent provision. The inconsistent provision of
the plan under this subject heading is as follows:
1. A policy which establishes standards for densities or
intensities for each future land use category is not included in
the adopted plan. Although Future Land Use Element Policy 2 . 1
establishes densities for Residential land uses, standards for
densities or intensities of use for Commercial, Industrial, and
Public Facilities land use categories are not included. Rule
9J-5. 006 (3) (c) 7 . , F.A.C.
B. Recommended remedial action. This inconsistency may be
remedied by taking the following action:
1. Revise Policy 2 . 1 to establish standards for densities or
intensities for each future land use category. Intensity standards
should specify the floor area ratio, impervious surface ratio,
building volume ratio, or other acceptable intensity standards.
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V. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN
A. Inconsistent provisions. The inconsistent provisions of
the plan under this subject heading are as follows:
1. The adopted comprehensive plan is inconsistent with the
State Comprehensive Plan, including the following provisions (Rule
9J-5.021, F.A.C. ) :
(a) Water Resources Policy (8) (b) 10. , to protect surface and
groundwater quality and quantity in the state;
(b) Natural Systems and Recreational Lands Policies
(10) (b) 1. , 2 . , and 7 . , to conserve forests, wetlands, fish, and
wildlife to maintain their environmental, economic, aesthetic, and
recreational values; and
(c) Land Use Policy (16) (b) 6. , to consider, in land use
planning and regulation, the impact of land use on water quality
and quantity.
B. Recommended remedial action. This inconsistency may be
remedial by taking the following action:
1. Revise the Future Land Use Map series and policies
protecting natural resources to be compatible with and further the
above referenced goals and policies of the State Comprehensive
Plan.
VI . CONSISTENCY WITH THE REGIONAL POLICY PLAN
A. Inconsistent provisions. The inconsistent provisions of
the plan under this subject heading are as follows:
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1. The adopted comprehensive plan is inconsistent with the
Central Florida Comprehensive Regional Policy Plan, including the
following provisions (Rule 9J-5. 021, F.A.C. ) :
(a) Water Resources (Regional Policy 1) , to protect, manage,
and conserve surface water and aquifer resources; and,
(b) Natural Systems and Recreational Lands (Regional Policy
1 and 2) , to mitigate land development impacts on the City's
natural systems and protect environmentally sensitive areas.
B. Recommended remedial action. This inconsistency may be
remedied by taking the following actions:
1. Revise the Future Land Use Map and policies protecting
natural resources to be compatible with and further the above
referenced goals and policies of the Central Florida Comprehensive
Regional Policy Plan.
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CONCLUSIONS
1. The plan is not consistent with the Central Florida
Comprehensive Regional Policy Plan.
2. The plan is not consistent with the State Comprehensive
Plan.
3 . The plan is not consistent with Chapter 9J-5, F.A.C.
4 . The plan is not consistent with the requirements of
Section 163 . 3177 , Florida Statutes.
5. The plan is not "in compliance" , as defined in Section
163 . 3184 (1) (b) , Florida Statutes.
6. In order to bring the plan into compliance, the City may
complete the recommended remedial actions described above or adopt
other remedial actions that eliminate the inconsistencies.
Executed this 7th day of August, 1991, at Tallahassee,
Florida .
g &owt q. /mcwc.
Robert G. Nave, Division Director
Division of Resource Planning
and Management
2740 Centerview Drive
Tallahassee, Florida 32399-2100
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EXHIBIT "B"
CITY OF OKEECHOBEE'S SECOND SET OF PROPOSED PLAN REVISIONS
SUBMITTED ON 12/12/91 IN RESPONSE TO THE DEPARTMENT OF COMMUNITY
AFFAIRS ' ALLEGED PLAN INCONSISTENCY CONCERNING DRAINAGE
(Section I.A of the Department's Statement of Intent to Find
the City's Comprehensive Plan Not in Compliance, August 7,
1991)
PROPOSED REVISIONS TO SANITARY SEWER, SOLID WASTER, DRAINAGE,
POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT,
GOALS, OBJECTIVES & POLICIES, (Pg. 29) :
Policy 7 . 1 . The- -it o-E-ekeeehebee-wi3-i- ert- ] -a
stormwater-mai°ragemerrt-s-t-udy-to-relents€y er--qtral ty-and
drainage-defiereneres-anti-meet ei3- -regn3rements-set
forth--i-rr-e.--•93-3.3.13;--F. r.C— By 1996 the City will
initiate an inventory study of the function and capacity
of the City' s existing stormwater drainage facilities and
system.
Policy 7 .2 : The City will amend the comprehensive plan
to include the recommendations of the stormwater
draingage study, upon its completion.
(Existing Policy 7 .2 renumbered Policy 7 . 3 . )
Struck-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 1
CITY OF OKEECHOBEE'S SECOND SET OF PROPOSED PLAN REVISIONS
SUBMITTED ON 12/12/91 IN RESPONSE TO THE DEPARTMENT OF COMMUNITY
AFFAIRS' ALLEGED PLAN INCONSISTENCY CONCERNING INTERGOVERNMENTAL
COORDINATION
(Section II.A of the Department's Statement of Intent to Find
the City's Comprehensive Plan Not in Compliance, August 7,
1991)
PROPOSED REVISIONS TO FUTURE LAND USE ELEMENT, DATA & ANALYSIS (Pg.
19) :
Kissimmee River Resource Management Plan
The Resource Management Plan for the Lower Kissimmee
River and Taylor Creek Drainage Basins is a wide-ranging
document addressing growth management and conservation issues
in the watershed area of the lower Kissimmee River. Its-goals
The Resource Management Plan's objectives, which were
specifically designed to provide optimal benefit to the people
of the state and region rather than the property owners,
taxpayers and residents of the City of Okeechobee, include
maintenance or improvement of water quality in the Kissimmee
River and in Lake Okeechobee, and carrying out economic
development and comprehensive planning-related activities in
such a way as to protect the area's natural resources .
The committee which developed the Resource Management
Plan believed that the plan' s objectives were compatible and
could be achieved through balancing three implementation
actions : ( 1) Land Acquisition; (2) Water Quality Protection;
and (3) Economic Development. Although the committee designed
the plan to maximize benefits to the state and region, the
committee did not fully address how the costs of implementing
the plan should be allocated among state government, the
region, local governments located within the study area and
property owners . For instance, although the committee stated
that a balancing of implementation actions, including land
acquisition, would be essential if the plan' s objectives were
to be achieved, the committee also made findings with regard
to the Taylor Creek Area Floodplain, Spoil Areas and Uplands
which are inconsistent with the plan' s statement concerning
the need to "balance" competing regulatory and property owner
interests : "In the Taylor Creek Basin, because of its
relatively greater percentage of agricultural and urban
development, the emphasis must be on improving water quality.
Therefore, land acquisition may not be needed. "
Struck-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 2
In view of the committee's decision not to fully endorse
a balancing of the plan' s three implemention actions within
the Taylor Creek Basin, the city shall coordinate with the
Resource Management Plan only to the extent that such
coordination: (a) is consistent with the principle that local
governments and landowners alone should not be forced to bear
public burdens which, in all fairness and justice, should be
borne by the public as a whole; and (b) would not result in
inverse condemnation.
The City of Okeechobee is located in the Taylor Creek
drainage basin, and therefore was one of the participants in
the plan' s development. Its primary involvement in the plan' s
implementation is through the establishment of comprehensive
plan policies and land development regulations to protect the
water quality of Taylor Creek. As are all local governments
within the study area, the city is required to do its fair
share to support the plan' s objectives by adopting ordinances
to implement best management practices to control erosion and
nonpoint source pollution.
The city will meet its obligations with regard to the
Kissimmee River Resource Management Plan through the following
actions :
1 . Establishment of speeial development review
procedures to-protect designed to provide the City with
the opportunity to review proposed development to ensure
that direct and irreversible impacts on environmentally
sensitive areas are minimized.
2 . Adoption of Future Land Use Element policies to
minimize the flow of polluting substances into Taylor
Creek, and to coordinate its activities with those of
other local governments involved in the Resource
Management Plan.
3. Adoption of Conservation Element policies to
establish development standards for environmentally
sensitive areas and cooperate with the South Florida
Water Management District's surface water monitoring
program.
4 . Adoption of land development regulations to implement
relevant policies of the Comprehensive Plan.
Struck-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 3
PROPOSED REVISIONS TO INTERGOVERNMENTAL COORDINATION ELEMENT,
GOALS, OBJECTIVES & POLICIES (Pg. 37-38) :
OBJECTIVE 4 : The City shall coordinate with the Resource
Management Plan for the Lower Kissimmee River and Taylor Creek
Drainage Basins to the extent that such coordination: (a) is
consistent with the principle that local governments and
landowners alone should not be forced to bear public burdens
which, in all fairness and justice, should be borne by the
public as a whole; and (b) would not result in inverse
condemnation.
Policy 4 . 1 : The City will coordinate with the Resource
Management Plan for the Lower Kissimmee River and Taylor Creek
Drainage Basins through the adoption of other objectives and
policies contained in this element and the establishment of
development review procedures designed to provide the City
with the opportunity to review proposed development to ensure
that direct and irreversible impacts on environmentally
sensitive areas are minimized.
Struck-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 4 •
CITY OF OKEECHOBEE'S SECOND SET OF PROPOSED PLAN REVISIONS
SUBMITTED ON 12/12/91 IN RESPONSE TO THE DEPARTMENT OF COMMUNITY
AFFAIRS ' ALLEGED PLAN INCONSISTENCIES CONCERNING PROTECTION OF
NATURAL RESOURCES
(Sections III .A 1. , III .A 2 . and III .A 3. of the DCA's
Statement of Intent to Find the City's Comprehensive Plan Not
in Compliance, August 7, 1991)
PROPOSED REVISIONS TO FUTURE LAND USE ELEMENT, DATA & ANALYSIS (Pg.
5) :
Vacant and Undeveloped
Approximately 645 acres (29 . 3 percent) of land within the
city is vacant or undeveloped. This land represents a
valuable asset in terms of planning for future development in
the city. The development of this land would discourage urban
sprawl . People are moving to the Okeechobee area and if they
cannot buy land in the city they will buy in scattered areas
in the unincorporated areas of the county. Three particularly
large tracts of vacant land are located in the area east of
Taylor Creek and north of SR 70; in the southeast corner of
the city south of South 8th Street; and in the southwest
portion of the city between West 10th and West 7th Avenues .
Although these three vacant parcels may have been classified
as either wetlands or environmentally sensitive lands before
the channelization of Taylor Creek and the dredging and
filling of properties adjacent to the creek, they are now
pasturelands . The wildlife which exists on these three tracts
are adaptable wildlife such as squirrels, rabbits and birds .
City sewer and water line connects are readily available to
these three large tracts of undeveloped land so that septic
tanks and well water would not be necessary for their
development. One of these three tracts is a 160 acre parcel
owned by the City which has been designated industrial and
described further at page 17 of the Data & Analysis of the
Future Land Use Element under the subsection referred to as
"Future Land Use Map, Economic development" .
PROPOSED REVISIONS TO FUTURE LAND USE ELEMENT, DATA & ANALYSIS (Pg.
11 after "Natural Resources") :
Taylor Creek
Taylor Creek is the city's major concern relative to the
effect of new development on natural resources . Taylor Creek
runs from north to south along the eastern portion of the
Struek-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 5
City. The only surface water body to be found within the city
limits, the creek and lands adjacent to it have has been
' altered through channelization and dredging and filling to the
point that they it can only loosely be called a natural
resources . The level of water in the creek has been
controlled since the 1960 's by the South Florida Water
Management District (SFWMD) to a level of 13 . 5 feet. The
creek flows into the rim canal that runs outside of the Lake
Okeechobee dike. During dry seasons the Taylor Creek locks
are open allowing water from Taylor Creek to run into the lake
and during the wet season the locks are closed and water is
then pumped into Lake Okeechobee. The water level of Taylor
Creek cannot exceed 13 .5 feet. Since the average elevation
of land in the City is above 18 feet sea level, the City is
free of any flood threat from the creek. The U.S. Army Corp
of Engineers did extensive canalization of the creek in the
1930 ' s and in the 1960 's the SFWMD created the present system
with pumping stations, dikes, locks and levees, etc. , that
prevented flooding in the city. The residents of Okeechobee
can remember no time when Taylor Creek flooded.
As a result of the practices of the federal government
and the SFWMD in managing Taylor Creek over the past 60 years
for state and regional flood control purposes, localized
flooding has been eliminated and environmentally sensitive
lands and wetlands which used to be located within the city
adjacent to the creek have been lost. Therefore, as a legal,
historical and practical matter the City of Okeechobee has
very little control over Taylor Creek due to the management
of this body of water by the SFWMD.
However, water quality in the creek has a substantial
effect on water quality in Lake Okeechobee. For this reason,
the city should cooperate with the District and Okeechobee
County in establishing standards for new development which
will help to reduce levels of phosphorus and other pollutants
entering the creek. At the same time, such efforts will
improve the creek as a habitat for fish and other wildlife.
New development should also protect such native vegetative
communities as may still exist in the Taylor Creek area.
Other water quality improvement measures have been taken by
the District. In order to reduce the phosphorous content
flowing into Lake Okeechobee by Taylor Creek, the SFWMD
installed the C-61 canal which connects with Taylor Creek
approximately 1 .5 miles north of the City and transports water
south easterly of the city. This considerably reduced the
nutrient content of Taylor Creek running through the city.
The SFWMD is requiring property owners of large tracts of
property to have their property checked for phosphorous
Struek-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 6
• '
discharge and is requiring a reduction of this discharge.
Studies are also currently being done by the WMD to determine
the amount of nutrients, if any, that lands associated with
feed businesses located within the city are presently
contributing to Taylor Creek. Should the results of these
studies show unacceptable degradation of Taylor Creek' s water
quality, regulatory programs currently in place at the
District and DER level will require remedial actions .
Wetlands
While Taylor Creek no longer presents a practical flooding
threat; . and As a result of previous dredging and filling and
flood control practices of federal, state and regional
agencies, many of the wetlands or environmentally sensitive
lands adjacent to the banks of Taylor Creek which formerly
existed within the City have been lost. Some wetland areas,
however, still exist in the creek' s historic floodplain (see
Map 1 .2) . Isolated wetlands also exist some distance from the
creek. The city' s wetlands are largely of the palustrine
type, defined as including vegetated wetlands normally
- described as marsh, swamp, bog, fin and prairie. Most of the
city's wetlands are characterized by the National Wetlands
Inventory (U.S. Department of the Interior) as persistently
wet areas which are seasonally, temporarily or semipermanently
flooded. While many wetland areas exist in the city, they are
small and widely scattered, and do not pose a significant
limitation to development in the city.
Groundwater
As there are no commercially significant mineral deposits
within city limits, groundwater is the city' s only noteworthy
natural resource. . .
Development Review Process
[Note: This subsection of the D & A, from pages 12-13, and other
portions of the plan will be revised to reflect the changes from
"Environmental Site Review Process" to "Development Review Process"
reflected in the proposed revision to FLUE Policy 2 .2 below]
As a means of protecting its natural resources, the city
should develop and implement a program of land use and land
development regulations aimed at minimal disruption of soils,
floodplains and surface water quality. In addition to
directing certain uses away from areas where they are
incompatible, a variety of regulatory and site design
techniques can be employed to protect the natural functions
Struek-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 7
of environmentally sensitive areas .
* * *
PROPOSED REVISIONS TO FUTURE LAND USE ELEMENT, DATA & ANALYSIS (Pg.
17) :
Future Land Use Map
The City of Okeechobee's expected future land use
patterns are depicted in Map 1. 3 (page 27) . The Future Land
Use Map is generally based on projected future land use
acreage requirements, but also encompasses other values and
concepts relating to the city's needs and desires . As Table
1.2 shows, the various land use designations show a
substantial difference between calculated acreage needs based
on population growth and actual land allocations shown on the
Future Land Use Map. Providing minimally adequate acreage for
the city' s various land use types should be viewed as only one
of several roles played by a map of future land use. Other
important values, concepts and functions include:
* * *
-Economic development. The city' s economic base can be
strengthened by the provision of varied and plentiful
sites for industrial and commercial development.
Okeechobee County has lost much of its dairy industry
because of the SFWMD's policies of requiring dairies in
the area to reduce the phosphorous flow into Lake
Okeechobee. Dairies have been paid per cow to move to
other areas and the remaining dairies have been required
to reduce the phosphorous content run off from their
properties . In order to partially off-set the economic
loss to the community due to the policy of the SFWMD to
encourage the relocation of the dairy industry outside
of Okeechobee County, a 160-acre tract in the city' s
northeast corner has been designated industrial as a
result of the community' s desire and expectation of
industrial development at that location.
Strtsek-threugh passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 8
_ ,
0.
PROPOSED REVISIONS TO FUTURE . LAND USE ELEMENT, GOALS, OBJECTIVES
& POLICIES (Pg. 3-5)
Policy 2 .2 : In accordance with property rights policies
adopted by the Central Florida Regional Planning Council in
the Central Florida Regional Policy Plan, the City of
Okeechobee recognizes and will protect private property
rights . In implementing the Comprehensive Plan, the city will
ensure that its land development regulations protect the use
and value of private property from adverse impacts of
incompatible land uses, activities and hazards . Planning for
land use and public facilities in the city will consider
private property rights, and ensure citizen input into
government land use decisions affecting property rights .
[Strike all of the next four paragraphs which begin with the
words "By September 1991 . . . ", "The Environmental Site
Review. . . " , "Using the submitted information. . . " and "Building
permit applications . . . " , and insert the following paragraph: ]
Upon Plan adoption, the City shall require that all
development proposals be accompanied by evidence that an
inventory of wetlands; soils posing severe limitations to
construction; unique habitat; endangered species of wildlife
and plants; and areas prone to periodic flooding has been
conducted. The City shall further require that the extent to
which any development or redevelopment is proposed to be
in/on, to disturb, or to alter the natural functions of any
of these resources be identified. Such identification shall
occur at a phase in the development review process that
provides the opportunity for the City to review the proposed
project to ensure that direct and irreversible impacts on the
identified resources are minimized, or in the extreme,
mitigated. Where mitigation is approved, wetlands shall be
replaced with the same type and form that perform the same
function as the wetland lost to development. Where
development is determined to encroach upon a resource, the
City shall require a specific management plan to be prepared
by the developer, which results in no net loss of wetlands and
which includes necessary modifications to the proposed
development, specific buffers and setbacks, and clustering of
development away from site resources, to ensure the
protection, preservation or natural functions of the resource.
The minimum buffer for wetlands shall be 25 feet and the
average of all setbacks from the wetland resource shall be 40
feet. Areas designated as buffers shall preserve all natural
vegetative cover, except where drainageways and access paths
are approved to cross the buffer. Buffers may be supplemented
only with native trees, shrubs and ground covers .
Struek-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 9
4
1 i
CITY OF OKEECHOBEE'S SECOND SET OF PROPOSED PLAN REVISIONS
SUBMITTED ON 12/12/91 IN RESPONSE TO THE DEPARTMENT OF COMMUNITY
AFFAIRS' ALLEGED PLAN INCONSISTENCY CONCERNING FUTURE LAND USE
(Section IV.A of the Department's Statement of Intent to Find
the City's Comprehensive Plan Not in Compliance, August 7,
1991)
PROPOSED REVISIONS TO FUTURE LAND USE ELEMENT, GOALS, OBJECTIVES
AND POLICIES (Pg. 3) :
Policy 2 . 1 : The following land use designations are
established for the purpose of managing future growth:
* * *
Commercial . Permitted uses include office, retail, automotive
wholesale, and related commercial activities . Also permitted
are public facilities . Commercial development shall not
exceed a floor area ratio of 3 . 00 and a maximum impervious
surface not to exceed 85% of the site.
Industrial . Permitted uses include large-scale manufacturing
or processing activities . Also permitted are public
facilities . Industrial development shall not exceed a floor
area ratio of 3 . 00 and a maximum impervious surface not to
exceed 85% of the site.
Public Facilities . Permitted uses includes parks, schools,
government buildings, fire stations and other recreational and
non-recreational public properties . Development within this
category shall not exceed 85% of the site.
Struek-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 10
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