1991-09-18 DCA Petition against City G I
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Petitioner, )
)
vs. ) DOAH CASE NO.
)
) DOCKET NO. 90-NOI-4702-N
CITY OF OKEECHOBEE, )
Respondent. )
)
PETITION OF THE
DEPARTMENT OF COMMUNITY AFFAIRS
Petitioner Department of Community Affairs hereby files this
petition against Respondent City of Okeechobee, and says:
1. The Department is the state land planning agency and
has authority to administer and enforce the Local Government
Comprehensive Planning and Land Development Regulation Act,
Chapter 163 , Part II, Florida Statutes.
2 . Among the responsibilities of the Department under the
Act is the duty to review plans submitted by local governments
and to determine if the plans are in compliance with the Act.
Section 163 . 3184 (a) , Florida Statutes.
3 . "In compliance" means consistent with the requirements
of Sections 163 . 3177 , 163 . 3178 and 163 . 3191, Florida Statutes,
the State Comprehensive Plan, the Regional Policy Plan, and Rule
9J-5, Florida Administrative Code. Section 163 .3184 (1) (b) ,
Florida Statutes.
4. The City of Okeechobee is a local government which has
the duty to adopt a comprehensive plan which complies with the
Act pursuant to Sections 163 . 3167 (2) , 163.3177 and 163. 3184,
Florida Statutes.
5. On March 19, 1991, the City adopted the Okeechobee
Comprehensive Plan by Ordinance No. 635.
6. The Department complied with and completed all general
and specific statutory prerequisites and conditions required by
Section 163 . 3184, Florida Statutes, and found the plan to be not
in compliance.
7. A copy of the Notice of Intent and Statement of Intent
issued by the Department concerning the plan are attached as
Exhibit A and Exhibit B, which are hereby incorporated by
reference.
8. The plan is not in compliance because it contains the
"inconsistent provisions" described in the Statement of Intent.
9. The Department has determined that the plan may be
brought into compliance by accomplishing the "recommended
remedial actions" described in the Statement of Intent or by
completing other remedial actions that eliminate the
inconsistencies.
WHEREFORE, the Department petitions for an administrative
hearing on this matter and requests that the hearing officer
issue a recommended order to the Administration Commission
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finding the plan to be not in compliance, specifying remedial
actions to bring the plan into compliance, and imposing such
sanctions as are provided by law.
Respectfully submitted,
AiA ♦ •
Ka en Brodeen
Assistant General Counsel
Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
(904) 488-0410
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U.S. Mail to the parties listed
below this I day of September, 1991.
K ren Brode-
Assistant General Counsel
The Honorable Oakland R. Chapman
Mayor of Okeechobee
City of Okeechobee
55 Southeast 3rd Avenue
Okeechobee, Florida 34974
John R. Cook., Esquire
City Attorney
202 N.W. 5th Avenue
Okeechobee, Florida 34974
Michael Morell
705 Forest Lair
Tallahassee, Florida 32312-1744
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STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
NOTICE OF •INTENT TO FIND THE
CITY OF OKEECHOBEE CITY
. COMPREHENSIVE PLAN NOT IN COMPLIANCE
DOCKET NO. 90-NOI-4702- (N) •
The Department gives notice of its intent to find the City
of Okeechobee City Comprehensive Plan, NOT IN COMPLIANCE pursuant
to Section 163. 3184 , F. S.
The adopted City of Okeechobee City Comprehensive Plan, the
Department' s Objections, Recommendations and. Comments Report, and
the Department' s Statement of Intent to Find the Comprehensive
Plan Not in Compliance will be available for public inspection
Monday through Friday, except for legal holidays , during normal
business hours, at the Okeechobee City Clerk' s Office, City Hall,
55 Southeast 3rd Avenue, Okeechobee City, Florida.
This Notice of Intent and the Statement of Intent will be
forwarded to the Division of Administrative Hearings of the
Department of Administration for the scheduling of an administra-
tive hearing pursuant to Section 120. 57, F.S. The purpose cf the
administrative hearing will be to present evidence and testimony
and forward a recommended order to the Administration Commission.
Any affected person, as defined in Section 163. 3184 , F. S. ,
may petition for leave to intervene in the proceeding. A
petition for intervention must be filed at least five (5) days
before the date set for the final hearing and must include all of
the information and contents described in Rule 22I-6. 010, F.A.C.
A petition for leave to intervene shall be filed at the Division
of Administrative Hearings, Department of Administration, 1230
Apalachee Parkway, Tallahassee, Florida 32399-1550. Failure to
petition to intervene within the allowed time frame constitutes a
waiver of any right such person has to request a hearing under
Section 120. 57, F. S.
RabeAft M Robert G. Nave, Director
Department-of Community Affairs
Division of Resource Planning
• and Management
2740 Centerview. Drive
• Tallahassee, Florida 32399-2100
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
NOT 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 exiqing and
projected drainage facility needs and has addressed this deficiency
EXHIBIT B
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 maybe
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. . 0
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
4
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 9,J- 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.
•
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•
•
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 area's. The additional policies should
specify the land use categories and the less intensive densities
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•
and intensities P ermitted 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. ;nconsistent 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.
(9.o wt C /vt C.cre-
Robert G. Nave, Division Director
Division of Resource Planning
and Management
2740 Centerview Drive
Tallahassee, Florida 32399-2100
•
•
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