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1992-08-03 Pet./Adm. Hearing . .. STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS CITY OF OKEECHOBEE, ) ) Petitioner, ) vs . ) DCA Docket No. 91-NOI-4701-( I) DEPARTMENT OF COMMUNITY AFFAIRS, ) Respondent. ) PETITION FOR ADMINISTRATIVE HEARING Petitioner, CITY OF OKEECHOBEE, by and through its undersigned attorneys, hereby files this Petition for Administrative Hearing pursuant to Sections 163 . 3184 ( 9 ) (a) and 120 . 57 ( 1) , Florida Statutes, and Rule 9J-11 . 012 (8) , Florida Administrative Code. In support of this Petition, Petitioner states as follows : A. BACKGROUND 1 . The agency involved in this proceeding is the Florida Department of Community Affairs (DCA) , 2740 Centerview Drive, Tallahassee, Florida 32399-2100 . The DCA docket number for this Smatter is 91-NOI-4701-(I) . The DCA is the designated state land planning agency, pursuant to Section 163 . 3164 ( 19 ) , Florida Statutes . 2 . The Petition is filed on behalf of the City of Okeechobee, Florida ( "Petitioner" or "City" ) , a Florida Municipal Corporation. IPetitioner' s address is 55 Southeast 3rd Avenue, Okeechobee, Florida 34974 . N 1 111 I'. r3 . Petitioner is an "affected person" as that term is defined in Section 163 . 3184 ( 1) , Florida Statutes, in that: A. Petitioner is the only municipality munici alit located within Okeechobee County and is an adjoining local government pursuant to Section 163 . 3184 ( 1) (a) , Florida Statutes . The rOkeechobee County Comprehensive Plan, as proposed and addpted, would produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within the City of Okeechobee. B. Petitioner owns the property legally described in Exhibit "A" . Said property lies within the boundaries of unincorporated Okeechobee County, Florida. C. Petitioner owns and operates a business within the boundaries of Okeechobee County and provides water and sewer services to residents and businesses located within the incorporated boundaries of the City of Okeechobee. The Petitioner also provides such services to residents and businesses located in unincorporated areas of Okeechobee County. D. Petitioner, through its attorneys and other representatives, participated in the local government. review and adoption proceedings for Okeechobee County Comprehensive Plan. Petitioner submitted written comments and objections to the proposed plan prior to the local government review and adoption hearings held on April 2, 1992 . 2 I . Ole B. FACTS 4 . On June 19, 1980, Okeechobee County ( "County" ) adopted the Okeechobee County Comprehensive Plan ( "1980 Okeechobee County Plan" ) , which became effective on or about July 1, 1980 . 5 . Pursuant to Section 163 . 3167 (2) , Florida Statutes, and Rule 9J-12 . 006 , Florida Administrative Code, the County was required to revise the 1980 Okeechobee County Plan in order for it to be in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, Sections 163 . 3161- .3215, Florida Statutes ( "Act" ) , and implementing rules adopted by the DCA. 6 . On July 23, 1986, the County entered into an agreement with the Central Florida Regional Planning Council ( "CFRPC" or "Council") whereby the Council would render professional services to assist- the County in preparing its revised plan. The agreement included a scope of services which listed the tasks to be performed by the CFRPC and the deliverables to be provided to the County. The County and CFRPC agreed that t y g the Council would complete the basic data assembly for planning activities required pursuant to DCA' s Minimum Criteria Rules, Chapter 9J-5, Florida Administrative Code. The County and CFRPC further agreed that after the Council compiled the minimum planning data required by DCA' s rules, the County would perform the analysis phase of the planning process . 1 is 3 7. The scope of services required that the CFRPC develop a data base for each of the mandatory plan elements required by the Act, including the plan' s Sanitary Sewer, Solid Waste, Drainage, Potable Water and Natural Groundwater Aquifer Recharge Element ( "Sewer & Water Element" ) . The scope of services further required that the data base for the Sewer & Water Element include an 11 identification and inventory of the public sanitary sewer and potable water facilities which provide service within the County and a map of the geographic service areas of the County served by those public sanitary sewer and potable water facilities . 8 . In November 1986, the CFRPC provided the County with the agreed upon Okeechobee County Data Base for Preparation of the City-County Comprehensive Plan which included a 9 page section which addressed the Sewer and Water Element ( "1986 Sewer and Water Element Data Base" ) . A copy of the 1986 Sewer and Water Element Data Base is attached to this Petition as Exhibit "B" . Included in the 1986 Sewer and Water Element Data Base were maps which outlined the general service area boundaries of the City's water and sewer facilities . 9 . On September 13, 1990 the County approved a proposed revision of the 1980 Plan which was subsequently transmitted to DCA for review and comment. The proposed revision to the plan consisted of two separate documents both of which were dated September 1990 : Data and Analysis (September 1990 D & A) and Goals, Objectives and Policies (September 1990 GOPs) . 4 10 . The September 1990 D&A contained a 17 page section which specifically addressed the Sewer and Water Element. A copy of the September 1990 D&A for the Sewer and Water Element is attached to this Petition as Exhibit "C" . The September 1990 D&A document, like the 1986 Sewer and Water Element Data Base, contained a list of 5 information sources from which the data was obtained. However, unlike the 1986 Sewer and Water Element Data Base, the September 1990 D&A document which the County transmitted to DCA for review did not contain any maps delineating the geographic service areas of the County served by the City' s water and sewer facilities . 11 . On January 29, 1991, DCA issued its objections, recommendations, and comments ( "ORC Report" ) on the proposed IIIrevision* of the plan. 12 . The ORC Report contained both general and specific objections to the September 1990 D&A and September 1990 GOPs for III the Sewer and Water Element which was included with the proposed revised ections were the J lan. Included in the ORC Report' s objections P P IIIfollowing: GENERAL OBJECTION TO PLAN' S DATA AND ANALYSIS - IIIOBJECTION A. 1 (at Pg. 1) : As pointed out throughout this report, a number of goals, objectives and policies, III standards, findings and conclusions within the comprehensive plan are not supported by relevant and appropriate data. These include but are not limited to goals, objectives and policies and standards (including III policies setting densities and intensities of land uses) that do not address in a positive and specific way current or potential problems identified in the data and analysis . For specific instances, reference should be made to the objections under each element of the plan included in this report. 5 NI v OBJECTIONS TO SANITARY SEWER SUB-ELEMENT DATA AND ANALYSIS - OBJECTION A.2 (at Pg. 40) : The geographic service area of the County served by the City of Okeechobee ' s sanitary sewer facilities has not been identified. Also, the predominant types of land use served has not been identified. RECOMMENDATION: Expand the plan element to identify the geographic service area of the County served by the City of Okeechobee 's sanitary sewer facilities . Identify the predominant types of land use served. OBJECTION A.8 (at Pg. 42) : Although the County has recently received a legislative grant to conduct feasibility and preliminary engineering studies for providing sanitary sewer service, an analysis concerning this study and of problems and opportunities of new facility siting has not been included. RECOMMENDATION: Expand the plan element to include an analysis of the problems and opportunities of new facility siting. This analysis should include, but not be limited to the studies associated with the legislative grant, identifying activities, actions or programs which the County is undertaking to implement the study. I ' OBJECTIONS TO POTABLE WATER SUB-ELEMENT DATA AND ANALYSIS - OBJECTION A.2 ( 9 at P . 53) : The geographic service area served by the potable water facilities owned and operated 11 by the City of Okeechobee serving the unincorporated County has not been identified. RECOMMENDATION: Expand the plan element to identify the geographic service area I/ of the County served by the City of Okeechobee serving the unincorporated County. OBJECTIONS TO SANITARY SEWER AND POTABLE WATER SUB- ELEMENT GOPS - I OBJECTION A. 10 (at Pg. 43) : An objective for providing for coordinating the extension of sanitary sewer facilities has not been included. Objective 1 (p.29) , concerns only concurrency and efficiency of facility use. Objective 2 (p. 30) concerns only maintaining a schedule of capital improvements needs . RECOMMENDATION: Revise the plan element to include a specific and measurable objective providing for coordinating the extension of sanitary sewer facilities . As the City of Okeechobee 6 provides central wastewater facilities to the County, the objective should provide for coordinating extension of facilities and capacity with the City. The County could establish density or intensity requirements for areas for expansion. The County should also address the provision of package treatment plants and septic tanks, placing limits upon their use, and establishing appropriate densities or intensities of use, especially in environmentally sensitive areas . Please see the comments of the Florida Department of Environmental Regulation (p. 14 ) regarding septic system placement. OBJECTION A.5 (at Pg. 54) : An objective for providing for coordinating the extension of potable water facilities has not been included. Objective 1 (p.29 ) concerns the concurrent provision of facilities and does not address coordinating extension of service. Objective 2 (p. 30 ) concerns the preparation and maintenance of a five-year schedule of capital improvements . Again, the objective does not address coordinating extension of service. 13 . The ORC Report also contained the following objection to the proposed revised plan' s public participation provisions : OBJECTION TO PUBLIC PARTICIPATION - OBJECTION A. 1 (at Pg. 1) : Procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the comprehensive plan and evaluation and appraisal reports have not been included. The section entitled "Public Participation Procedures" (pgs . 63-64 ) is only a discussion regarding "determinations" made by the County concerning existing participation procedures . RECOMMENDATION: Revise the comprehensive plan to include and adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the comprehensive plan and evaluation and appraisal reports . 14 . Under the provisions of the Act, after receiving the ORC Report Okeechobee County was required to adopt its plan within 60 days and transmit a copy of its plan to DCA within 5 days after adoption. The deadline for adoption of the Okeechobee County Plan was April 13, 1991 . 7 • 15 . On March 30, 1992, Petitioner filed a public records request with the County. A copy of Petitioner' s public records request is attached to this Petition as Exhibit "D" . Petitioner requested that the County provide it with copies of documents revising the 1980 Okeechobee County Plan including those proposed revisions to the data and analysis documents which the County was required to identify, discuss and consider prior to the final adoption of the plan at the conclusion of the public hearing which had been noticed for the evening of April 2, 1992 . 16 . On the afternoon of April 1, 1992, the County partially responded to Petitioner' s public records request. In response to IllIl1:l1 ' Petitioner' s specific request for the proposed revisions to the data and analysis documents to be considered at the final adoption hearing„the County provided Petitioner with a 36 page revision to the September 1990 Data and Analysis for the Water and Sewer Element ( "April 1, 1992 D&A for Water and Sewer Element" ) . A copy of the April 1, 1992 D&A for Water and Sewer Element is attached to this Petition as Exhibit "E" . Although the April 1, 1992 D & A for Water and Sewer Element contained an additional 19 pages of data and analysis that was not included with the September 1990 D&A IIIdocument which the County transmitted to DCA, the April 1st document was still dated "September 1990" . The list of sources included with the 36 page April 1st D&A revision included, the IIIidentical list of 5 information sources which had been included in the September 1990 D&A for the Water and Sewer Element. Finally, IIIthe April 1, 1992 D&A for the Water and Sewer Element still did not 8 r !!! ' contain the maps delineating the geographic service areas of the County served by the City' s water and sewer facilities which DCA had requested the County to include in the plan. 17 . On the afternoon of April 2, 1992 , Petitioner's attorney hand delivered written comments, objections and recommendations to 111 the proposed plan to the Chairman and members of the Okeechobee County Board of County Commissioners ( "Board" ) , the County Attorney, the County Finance Director and Interim County Manager, the County's planning consultant and DCA' s representative. A copy of Petitioner' s written comments, objections and recommendations is attached to this Petition as Exhibit "F" . Petitioner' s written comments, objections and recommendations were based upon its review d to the City by the County on April 1, of the documents provided y y y P 1992 and incorporated the objections contained in DCA' s ORC Report which are quoted above in T12 of this Petition. 18. On the evening of April 2, 1992, the Board held a public hearing on the proposed plan. At no time during the public hearing or prior to the vote to adopt the Plan, did the Board direct their 1/ attorney, staff, the CFRPC or planning consultants to revise or supplement the Plan' s data and analysis to include material which was not included in the April 1, 1992 D&A for the Water and Sewer Element. At the conclusion of the public hearing the Board voted to adopt Ordinance 92-05 by which the County adopted the Okeechobee County Comprehensive Plan. Or 9 I r, 19 . The Adopted Plan GOPs for the Sewer and Water element contained the following Policy 3 .2 : 01 Policy 3 . 2 : Okeechobee County shall continue working ill with the City of Okeechobee to evaluate the feasibility of establishing a utility authority which would be responsible for meeting the potable water and sanitary sewer needs of southern Okeechobee County. Feasibility shall be determined ill through ongoing discussions with the City, as well with assistance from the Florida Department of Environmental Regulation and the South Florida Water Management District and ill ongoing potable water and sanitary sewer studies . If determined to be feasible, the utility authority shall incorporate existing service areas and coordinate expansion of facilities, including requiring that septic tanks along Lake ill Okeechobee and Taylor Creek be replaced by connection to existing or expanded public supply sewage treatment s facilities . 20 . At no time before, during or after the April 2, 1992 IIpublic hearing did the County respond to the City or its representatives, either orally or in writing, concerning the IIwritten comments, objections and recommendations which had been provided to the County by the City. 21 . Furthermore, Petitioner believes that at no time between the afternoon of April 1, 1992 (when the County provided Petitioner with copies of the April 1, 1992 D&A for the Water and Sewer Element which the County was required to identify and discuss prior I ill to adopting the plan) and the evening of April 2, 1992 when the County adopted the Plan, did the Board take official action to publicly identify or discuss relevant data and analysis other than that contained in the April 1, 1992 D&A for the Water and Sewer III Element. 10 IMIliiir ...,- I . . • 22 . DCA received the adopted Okeechobee County Comprehensive Plan on May 29, 1992 -- 57 days after it was adopted and 1 year and L42 days after the April 13, 1991 deadline required by the Act. �. 23 . On June 4 , 1992, Okeechobee County further responded to Petitioner's public records request of May 30, 1992 and provided Petitioner with a copies of the following adopted plan documents submitted to DCA on May 29 , 1992 : the data and analysis for the adopted plan, the GOPs for the adopted plan, and a list of 044 revisions and responses to the ORC Report. A copy of the County' s Mt cover letter of transmittal to Petitioner is attached to this Petition as Exhibit "G" . 24 . The data and analysis for the adopted plan was dated "April 1992" and contained a 63 page section which specifically 11 addressed the Sewer and Water Element ( "Adopted Plan D&A for Sewer and Water Element" ) . A copy of the Adopted Plan D&A for Sewer and Water is attached to this Petition as Exhibit "H" . 25. The list of sources included with the 63 page Adopted Plan D&A for Sewer and Water Element included 7 new information sources, none of which were included in the September 1990 or April 1, 1990 D&A documents for the Sewer and Water Element. Included among these new information sources were a document referred to as "Draft Okeechobee County Utility System Study" dated 1991 and an "unsigned contract" dated 1992 which was referred to as "Cooperative Agreement Between the South Florida Water Management District and Okeechobee County, Florida. " ( "SFWMD Agreement") . I 11 • • 26 . The Adopted Plan D&A for the Sewer and Water Element contains two maps prepared by the CFRPC which are different than those maps the Council prepared and included in the 1986 Sewer and Water Element Data Base. Map 4 .2 and Map 4 . 6 contained in the Adopted Plan D&A for Sewer and Water Element purport to delineate the wastewater and potable water service areas for the City of Okeechobee, respectively. The source for both maps is represented to be an "Okeechobee County Utility Study" dated 1991 . 27 . Included in the Adopted Plan D&A for the Water and Sewer Element is a discussion of the scope of the "proposed agreement" between the County and SFWMD. The discussion of the proposed scope of the agreement includes the following quote at page IV-22 of a task contained in the wastewater portion of the proposed agreement: "Task 1 . 6, District and County determine financial feasibility for Okeechobee Utility Plan based on review of deliverable[s ] ( from previous tasks) . " 28 . On July 10, 1992, the DCA issued notice of its intent to find the Okeechobee County Comprehensive Plan in compliance with its rules and statutes . Petitioner received notice of the agency decision by publication in the July 12, 1992 edition of the Okeechobee News . Pll r X' 12 Ii C. ISSUES 29 . Petitioner challenges the Okeechobee County Comprehensive i Plan adopted by the Board of County Commissioners of Okeechobee County on April 2, 1992, by Ordinance 92-5 . Specifically, Petitioners challenge those portions of the plan which: (A) purport to identify the wastewater and potable water geographic service areas served by the City of Okeechobee; (B) purport to coordinate the extension and expansion of capacity of sewer and potable water facilities with the City; and (C) purport to authorize the County and SFWMD to determine the financial feasibility of a regional utility authority. 30 . Petitioner alleges that the following general issue of material fact is in dispute: Whether the Okeechobee County Comprehensive Plan adopted by the Board of County Commissioners of Okeechobee County on April 2, 1992 is in compliance with Part II of Chapter 163, F.S. ( 1991) ; and Rule 9J-5, F.A.C. 31 . Petitioner asserts that the following disputed issues of fact exist, and allege that the Okeechobee County Comprehensive Plan is not in compliance with the following statutes and rules : A. Whether the Plan complies with Section 163 . 3181 ( 1) , Florida Statutes, and Rules 9J-5 .004 and 9J-5 .005, Florida Administrative Code, which require effective public participation in the comprehensive planning process and notice to affected persons prior to taking official actions that regulate the use of property and economic enterprise. Petitioner alleges that by revising the D&A document, after taking official action to adopt the plan at the April 2, 1992 13 plan adoption hearing, to include new data and new analysis drawn from new informational sources, Okeechobee County failed to provide effective notice to and public input from affected persons, including the City. As a result of such failure, the 1 public, and the City, were denied the chance to consider the omitted data and analysis during the planning process . B. Whether the Okeechobee County Board of County Commissioners considered all oral and written comments and objections received during the plan review and adoption proceedings, including the support documents and objections, recommendations and comments of the DCA, the City and other agencies . C. Whether the com lan complies with Sections 163 . 3177 (8) P P and ( 10) (e) , Florida Statutes, and Rule 9J-5 . 005(2) , Florida Administrative Code, which require that all elements, goals and policies of the plan be based on appropriate data. The challenged portions of the plan do not comply with this requirement in that the technical data and list of sources relied upon by Okeechobee County does not support: ( 1) the identification of the City' s wastewater and potable water geographic service areas included in the plan; (2 ) the policies adopted by the County in the Sewer and Water element concerning coordination and cooperation between the County and the City regarding the extension and expansions of the City' s existing sanitary sewer and potable water system to serve 11 residents in the unincorporated areas of Okeechobee County; • 11 14 I . . 1! ( 3) the economic feasibility standard included in Policy 3 .2 of the Sewer and Water Element as the basis for making any County-City determination of whether to establish a regional utility authority, or, in the event that such an authority is not determined to be economically feasible, to be used as a basis for the County to make a decision whether or not to start its own utility system; and (4 ) the provision of the Adopted Plan D&A for the Sewer and Water Element, which conflicts with Policy 3 .2, by which the County and SFWMD purport to make the determination of whether the County' s utility plan or regional utility authority is financially feasible. D. Whether the analysis contained in Adopted Plan D&A was predicated upon data not in existence and available at the time the County adopted the plan. E. Whether the policies contained in the Adopted Plan GOPS, including those for the Sewer and Water Element, are supported by the best available existing data, as such criterion is stated by Rule 9J-5 . 005(2) (c) , Florida Administrative Code, and whether such data were collected and applied in a professionally acceptable manner, as required by Rule 9J-5 . 005(2) (a) , Florida Administrative Code. F. Whether the Plan' s omission of the maximum economic feasibility standard as the basis for making a determination of whether to establish a regional utility authority, or in the event that such an authority is not established, as a 15 1 basis for the County to make a decision whether or not to start its own utility system, is supported by the best available existing data. G. Whether the Intergovernmental Coordination Element is consistent with the criteria of Section 163 . 3177 ( 6 ) (h) , Florida Statutes, and Rule 9J-5 . 015(3) , Florida Administrative Code. H. Whether the Okeechobee County Plan is consistent with the State Comprehensive Plan, Chapter 186, Florida Statutes, and the Regional Comprehensive Policy Plan of the Central Florida Regional Planning Council, Chapter 29G-2, Florida Administrative Code. D. LEGAL BASIS FOR RELIEF 32 . Petitioner is entitled to relief under legal authorities including but not limited to Chapters 120 and 163, Florida Statutes, and Rule 9J-5, Florida Administrative Code. E. DEMAND FOR RELIEF Based upon the foregoing, Petitioner respectfully requests : (i) That a formal administrative hearing be scheduled and conducted by a DOAH D hearing officer; O g (ii) That the hearing officer enter a recommended order ■�i finding that the challenged plan is not in compliance with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative. Code, and recommending that the Administration Commission grant such other relief as is just and appropriate; 11 16 f.• 11 (iii) That the DCA enter an order of determination that the Okeechobee County Comprehensive Plan in not in compliance, and (iv) That the Administration Commission enter a final order adopting the hearing officer' s recommended order as final agency action and grant such other relief as the Commission determines is just and appropriate. Respectfully submitted on August 3 , 1992 by: 046,Q Ikkg Michael Wm. Morell Attorney at Law 310 West College Avenue Tallahassee, Florida 32301-1406 ( 904) 425-8300 and John R. Cook City Attorney City of Okeechobee 202 N.W. 5th Avenue Okeechobee, Florida 34972 (813) 467-0297 Attorneys for City of Okeechobee CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing has been forwarded by U.S. Mail to John D. Cassels, Jr. , County Attorney, Okeechobee County, 400 N.W. Second Street, P.O. Box 968, Okeechobee, FL 34973 on this 3r4 day of August, 1992 . 44/IS Wu, .4k99 Michael Wm. Morell 17 CERTIFICATE OF MOOD-PAITH FILING State of Florida ) County of Okeechobee ) Being duly sworn, John J. Drago, (City Administrator for the City of Okeechobee) , a Florida Municipal Corporation, states that he has read the foregoing Petition immediately prior to the filing of the Petition, that the allegations in the Petition are true, and that, to the best of his knowledge, information, and belief formed after reasonable inquiry, the Petition is not interposed for any improper purpose, consistent with Section 163.3184 (12) of the Florida Statutes. Alai/ 4+11N +'. D' ;,,, + , CITY ADMINISTRATOR O SWORN TO AND SUBSCRI : D be ore me this 3rd day of August, 1992. I (3,1,■Azet!' 11 NOTARY PUBLIC STATE OP FLORIDA AT LARGE My Commission Expires: NOTARY PUBLIC.STATE OF FLORIDA. ?1' C OrlIM1S31ON EXPIRES:Sept.2, 1995. BOtk0ED THkU NOTARY PUBLIC UNDERWIUTER$I I _ •-..