1991-10-17 Pet. to Intervene (Shumpert, Altobello, et al) rt
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS, )
Petitioner, )
)
vs . ) CASE NO. 91-5962GM
CITY OF OKEECHOBEE, )
)
Respondent, )
and )
WILLIAM 0. SHUMPERT, REX BUTLER, )
MARY WILSON, C.E. CANTRELL, )
EVELYN DAVIES, and FRANK ALTOBELLO) I ,
and ETHEL ALTOBELLO, his wife, )
Intervenors. )
)
PETITION FOR LEAVE TO INTERVENE
Intervenors, WILLIAM 0. SHUMPERT, REX BUTLER, MARY
WILSON, C.E. CANTRELL, EVELYN DAVIES, and FRANK ALTOBELLO
and ETHEL ALTOBELLO, his wife, through their undersigned
counsel and pursuant to Florida Administrative Code Rules
22I-6 . 004 and 22I-6 .010, and Sections 163. 3184 and
120 .57 ( 1) , Florida Statutes, hereby files this Petition for
Leave to Intervene as parties in this cause which is to
determine the compliance of the CITY OF OKEECHOBEE
Comprehensive Plan with Chapter 163, Part II, Florida
Statutes, and, as grounds therefore states as follows:
Parties
1 . The Intervenors are co-owners of real property
comprising a tract of 45 acres lying adjacent to Taylor
Creek in the City of Okeechobee. Intervenor, WILLIAM 0.
SHUMPERT's address is 1524 S.E. 12th Street, Fort
-1-.
1 1
Lauderdale, Florida 33316 . Intervenor, REX BUTLER's address
is Rt 7, Box 412, Butler Dr. , Tupelo, MS 38801. Intervenor,
MARY WILSON's address is 3324 Burkle Lane, Plano, TX 75023 .
Intervenor C.E. CANTRELL's address is Post Office Box 134,
Smithville, MS 38870. Intervenor, EVELYN DAVIS's address is
206 Brewer Circle, Gardendale, AL 35071 . Intervenors, FRANK
ALTOBELLO and ETHEL ALTOBELLO's address is Post Office Box
417, Okeechobee, Florida 34973.
2 . Petitioner, the FLORIDA DEPARTMENT OF COMMUNITY
AFFAIRS (hereinafter referred to as "DCA" ) of 2740
Centerview Drive, Tallahassee, Florida 32399, is the agency
of the State of Florida affected in this cause. The agency
file number is 90-NOI-4702-(N) .
3 . CITY OF OKEECHOBEE, FLORIDA (hereinafter referred to
as "CITY" ) , with business offices at 55 S.E. 3rd Avenue,
Okeechobee, Florida 34974, is a "local government" as
defined in Section 163.3164(12) , Florida Statutes, and a
"governmental agency" as defined in Section 163. 3164(9) (c) ,
Florida Statutes.
Background
4 . The DCA has a duty to review comprehensive plans
submitted by local governments to determine if the plans are
in compliance with the Local Government Comprehensive
Planning and Land Development Regulation Act, Chapter 163,
Part II, Florida Statutes ( "the act" ) .
5. On March 19, 1991, the CITY adopted the
Comprehensive Plan ( "Plan" ) for the City of Okeechobee,
Florida, by Ordinance No. 635. After adoption, the Plan was
-2-
duly transmitted to the DCA for approval. The DCA reviewed
the Plan to determine compliance with the Act.
6 . On August 7, 1991, the DCA issued its Statement of
Intent to Find the Comprehensive Plan Not in Compliance. On
September 19, 1991, the DCA filed its Petition with the
Division of Administrative Hearings for a determination that
the Plan was not in compliance with the Act.
Intervenors are the affected persons
7 . Intervenors are the co-owners of approximately 45
acres of land in the City of Okeechobee now being used as
pasture land and for other purposes . Intervenors, FRANK
ALTOBELLO and ETHEL ALTOBELLO, his wife, are residents of
the City of Okeechobee and own a home, certain commercial
property and other property in the City of Okeechobee,
Florida, and operate a business of leasing and renting
offices and store units in the City.
8 . Intervenors participated in the governmental review
and adoption proceedings for the Plan and submitted both
oral and written objections during the course of those
proceedings.
9 . Intervenors meet the definition of an "affected
person" set forth in Section 163. 3184( 1) (a) , Florida
Statutes, and therefore, have a statutory right to
participate in this proceeding pursuant to Section
163 .3184( 10) (a) , Florida Statutes .
10 . Intervenors are participating in this proceeding in
support of the CITY in its defense of the Plan as adopted.
Ultimate Facts Alleged
-3-
11 . The Plan is consistent with the provisions of
section 163.3177, Florida Statutes, Florida Administrative
Code Chapter 9J-5, the State Comprehensive Plan, the Central
Florida Comprehensive Regional Policy Plan and the Resource
Management Plan for the Lower Kissimmee River and Taylor
Creek Drainage Basins.
12 . The DCA filed a Statement Of Intent To Find The
Comprehensive Plan Not In Compliance, (hereinafter referred
to as "Statement of Intent" ) . The Statement of Intent was
incorporated in , its Petition. The Statement of Intent and
Petition alleged that the CITY's plan contained certain
inconsistencies with applicable law and state and regional
plans and recommended certain remedial actions . It alleges
five major inconsistencies including the following: ( 1) That
the plan does not contain a timeframe plan for completing a
study of drainage needs; (2) That the plan is inconsistent
with the Resource Management Plan for the Lower Kissimmee
River and Taylor Creek Drainage Basins; (3) That the plan
does not adequately provide for protection of natural
resources; (4 ) That it does not adequately provide for
future land uses in connection with densities and
intensities; (5) That it is inconsistent with the State
Comprehensive Plan and (6) that it is not consistence with
the Central Florida Regional Policy Plan. In connection
with the alleged major inconsistencies it lists specific
inconsistencies and recommends certain remedial actions
including designating certain undeveloped tracts adjacent to
Taylor Creek and wetlands as conservation for future land
-4-
use, reduce residential densities of property along Taylor
Creek, set up buffer zones along Taylor Creek and wetlands,
to prohibit development of lands adjacent to Taylor Creek
and wetlands and the installation of septic tanks on said
property, require single family residential property
developments to go through a site review process, to set
certain time frames for completing certain actions including
drainage and other recommendations . Intervenors co-own an
undeveloped 45 acre tract adjacent to Taylor Creek within
the City of Okeechobee that will or can be radically and
adversely affected should the remedial action recommended by
DCA be incorporated in the CITY's Plan. If the plan is
amended as suggested by the DCA it will prohibit or
significantly prohibit residential or other development of
developable lands along Taylor Creek and wetlands and result
in other unjustified development restrictions . The value of
land along Taylor Creek and wetlands in the City of
Okeechobee, including those owned by the Intervenors, will
be reduced negatively impacting the Intervenors ' ability to
develop this property and future development potential of
this property will be significantly impaired. The adoption
of the amendments will result in taking of Intervenors '
property without due process of law and will be in violation
of Intervenors ' rights under the various provisions of the
State and Federal Constitutions .
13 . In reviewing consistency with the State
Comprehensive Plan, the DCA has improperly singled out
specific goals or policies and applied them in isolation
-5-
from the other goals or policies instead of construing the
State Comprehensive Plan as a whole, as is required in
Section 187 . 101(3) , Florida Statutes, and Florida
Administrative Code Rule 9J-5 . 021(2) . The result of this
misapplication of the provisions of the State Comprehensive
Plan is to recommend the same remedial actions and with the
same impacts, as is referenced in the preceding paragraph.
Disputed Issues of Material Facts
14 . Intervenors set forth the following disputed issues
of material fact,:
a. Whether the Plan is consistent with Section
163 .3177, Florida Statutes .
b. Whether the Plan is consistent with the
requirements of Florida Administrative Code Rule 9J-5 .
c. Whether the Plan is consistent with the State of
Comprehensive Plan.
d. Whether the Plan is consistent with the
provisions of the Central Florida Comprehensive Regional
Policy Plan.
e. Whether the plan is consistent with the Resource
Management Plan for the Lower Kissimmee River and Taylor
Creek Drainage Plan.
f. Whether the recommended remedial actions will
protect environmentally sensitive land, surface water
bodies, or wetlands.
g. Whether the recommended remedial actions to
protect environmentally sensitive land and surface water can
be justified as valid incipient non-rule policy making by
-6-
adjudication.
h. Whether the recommended remedial actions will
cause the taking of Intervenors ' property without just
compensation, if amendments based on the recommended
remedial actions are adopted by the CITY.
i. Whether the recommended remedial actions and
applicable Florida Statutes, rules, policy and the procedure
followed by DCA violate the rights of Intervenors under the
due process and other provisions of the United States and
Florida Constitutions.
Rules and Statutes Entitling Intervenors to Relief
15 . Intervenors set forth the following rules and
statutes entitling it to relief.
a. Section 120.57 ( 1) , Florida Statutes;
b. Chapter 163, Part II, Florida Statutes;
c. Florida Administrative Code Rules 22I-6 . 004, and
22I-6,010;
d. Florida Administrative Code Chapter 9J-5;
e. Chapter 187, Florida Statute (State
Comprehensive Plan) ;
f. The Central Florida Comprehensive Regional
Policy Plan.
g. The Resource Management Plan for the Lower
Kissimmee River and Taylor Creek Drainage Plan.
h. The United States and Florida Constitutions
provisions prohibiting the taking of property without due
process of law and other provisions .
WHEREFORE, The Intervenors, respectfully requests that
-7-
the Hearing Officers enter an Order granting this Petition
for Leave to Intervene, and Granting Intervenors parties
status in this cause, and further, issue a Recommended Order
determining the City of Okeechobee Comprehensive Plan to be
in compliance with Chapter 163, Part II, Florida Statutes,
and consistent with Section 163. 3177, Florida Statutes,
Florida Administrative Code Rule 9J-5, the State
Comprehensive Plan, and the Central Florida Comprehensive
Regional Policy Plan, and recommending other specific
actions as deemed appropriate.
Respectfully submitted this 1 7-4 day of October,
1991.
L, TER, `'NGS
'Post Of ° Box 237
Okeechol e, Florida 34973
(813)4 .'' -2570
FL Bar # 0039488
Counsel for Intervenors
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U.S. Mail to: Karen Brodeen,
Attorney for Department of Community Affairs, 2740
Centerview Drive, Tallahassee, Florida 32399-2100, and
Michael Wm. Morell, 705 Forest Lair, Tallahassee, Florida
32312-1744 and John Cook, Attorneys for City of Okeechobee,
202 N.W. 5th Avenue, Okeechobee, Flora 34972 th' s 110'
day of October, 1991.
4
ii7 /ER W. i 'GS
-8-