1991-12-12 Morell to DCA MICHAEL WM. MORELL
ATTORNEY AT LAW
705 FOREST LAIR
ADMINISTRATIVE AND GOVERNMENTAL LAW TALLAHASSEE, FLORIDA 32312-1744 ALSO ADMITTED IN THE
ENVIRONMENTAL AND LAND USE LAW DISTRICT OF COLUMBIA
(904) 665-7274
(904) 668-1893 FAX
December 12, 1991
HAND DELIVERED
Robert Pennock
Chief, Bureau of Local Planning
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399
Re: City of Okeechobee' s Second Set of Proposed Plan Revisions
in DCA v. City of Okeechobee, DOAH Case No. 91-5962GM;
DCA Docket No. 90-NOI-4702-(N) .
Dear Robert:
Enclosed please find a copy of the City of Okeechobee's second
set of proposed revisions to the City of Okeechobee's comprehensive
plan.
The City previously submitted its first set of proposed plan
revisions to you on December 5, 1991 . It is the City' s
understanding that you and other Departmental representatives
reviewed and discussed the first set of proposed plan revisions
prior to the second settlement discussion meeting which was held
between the parties yesterday, December 11, 1991 in Okeechobee.
All parties to the proceedings were represented during
yesterday' s meeting to hear the Department's response to the
initial proposals . At the meeting the Department ' s representative,
Mr. Tony Arrant, expressed the Department's concerns about the
initial proposals and suggested further changes . After listening
to the Department' s concerns and suggestions expressed by Mr.
Arrant, further discussion occurred between him and the other
representatives of the parties in attendance at the meeting. As
a result of that further discussion, the enclosed second set of
proposed revisions were developed and agreed to by the
representatives of all of the parties - including Mr. Arrant. The
enclosed second set of proposed revisions is to be substituted for
the initial proposals made by the City's representatives on
December 5th.
Robert Pennock
December 12, 1991
Page Two
At the end of yesterdays meeting Mr. Arrant assured the
parties that the second set of proposed revisions will be submitted
to Secretary Sadowski for his review and approval at the Senior
Staff Meeting scheduled for tomorrow, December 13, 1991 .
The second set of proposed revisions are submitted by the
representatives of the City, in good faith, in response to each of
the alleged plan inconsistencies contained in the Department's
Statement of Intent issued on August 7, 1991 . The City trusts that
you and other Departmental staff who have assisted the City will
recommend that the Secretary approve the proposed revisions at
tomorrows Senior Staff Meeting so that the City Council may
schedule a public hearing prior, to executing a stipulated
settlement agreement with the Department.
The City looks forward to the Secretary' s response to the
enclosed proposed revisions as soon as possible.
With best personal regards, I am
Sincerely,
6u4LQ (0,4,1 . 2
Michael Wm. Morell
MWM:mm
Enclosures
cc. John Drago, City Administrator (with enclosures)
Karen Brodeen, DCA Assistant General Counsel (with enclosures)
Randy Fox, DCA Planner (with enclosures)
Tony Arrant, DCA Planner (with enclosures)
Lester Jennings, Esquire (counsel for intervenors) (with
enclosures)
Doug Leonard, Executive Director, Central Florida Regional
Planning Council (with enclosures)
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-£ity- o-f•-ekeeehobee-will- under ke--a
stormwater ranagement-st-udy-to-fdentffy-we-t-er`-qua-i-ity-and
drainage-defrereneres-anti-meet--a±i-data-requirements-set
forth--i-rr-S.---93-5—I-I-- -4� 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 special 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
ti
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.
Struek-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
Struck-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
Struck-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.
Struek-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 8
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 .
Struck-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 9
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.
Struck-through passages are
proposed to be deleted.
Underlined passages are
proposed to be added. 10