10-010544DRI Department Of Community Affairs vs. City Of Palm Coast, A Political Subdivision Of The State Of Florida And Wilson Green, Llc Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, July 22, 2011.

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FINAL ORDER

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STATE OF FLORIDA ....c

LAND AND WATER ADJUDICATORY COMMISSION ?

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

vs. FLWAC CASE NO.: APP-lO-015

DOAH CASE NO.: 10-10544DRI

CITY OF PALM COAST, a political subdivision

of the State of Florida; and WILSON GREEN,

LLC, Developer

Respondents.

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FINAL ORDER OF DISMISSAL

This cause came before the Secretary ofthe Florida Land and Water Adjudicatory

Commission upon the "Notice of Petitioner's Dismissal of Development Order Appeal" filed by

the Department Affairs on August 8, 2011. A copy of the "Notice of Petitioner's

Dismissal of Development Order Appeal" is attached and incorporated as "Exhibit A."

IT IS ORDERED that the dismissed.

DONE AND ORDERED this _1_\\_ day of August, 2011.

NOTICE OF RIGHTS

Any party to this Order has the right to seek Judicial review of the Final Order pursuant to

section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110,

Florida Rules of Appellate Procedure, with the Clerk ofthe Commission, Office of Policy and

Budget, Executive Office of the Governor, The Capitol, Room 1801, Tallahassee, Florida 32399­

0001; and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees,

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with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of

the day this Order is filed with the Clerk of the Commission.

\\;) JERRY . MCDANIEL, Secretary

"'7 Florida Land and Water

Adjudicatory Commission

J lit-FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this

day of August, 2011.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to the

following persons by hand delivery, electronic delivery, or US Mail this of August,

2011.

Honorable Rick Scott Honorable Jeff Atwater

Governor Chief Financial Officer

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Pam Bondi Honorable Adam Putnam

Attorney General Commissioner of Agriculture

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

1. Mary Thomas, Esquire Lynette Norr, Assistant General Counsel

Governor's Legal Office Department of Community Affairs

Room 209, The Capitol 2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-0001 Tallahassee, Florida 32399-2100

Wilson Green, LLC William E. Reischmann, Jf., Esquire

c/o FletcherManagement Company City of Palm Coast City Attorney

1548 The Greens Way 160 Cypress Point Parkway

Suite 4 Suite B-106

Jacksonville Beach, Florida 32250 Palm Coast, Florida 32164

Catherine D. Reischmann, Esquire Reginald 1. Bouthillier, Jf., Esquire

Debra S. Babb-Nutcher, Esquire Greenberg Traurig, P.A.

Gregg A. Johnson, Esquire 101 East College Avenue

Brown, Garganese, Weiss & D'agresta, P.A. Tallahassee, Florida 32301-7742

111 N. Orange Avenue

Suite 2000

Orlando, Florida 32802

Brian Teeple Florida Administrative Law Reports

Chief Executive Officer Post Office Box 385

Northeast Florida Regional Council Gainesville, Florida 32602

6850 Belfort Oaks Place

Jacksonville, Florida 32216

Honorable David M. Maloney

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

ORIGINAL

STATE OF FLORIDA

FLORIDA LAND AND WATER ADJUDICATORY COMMISSION

DEPARTMENT OF COMMUNITY

AFFAIRS,

Petitioner,

v.

CITY OF PALM COAST AND

WILSON GREEN LLC

Respondents.

-------------- /

NOTICE OF PETITIONER'S DISMISSAL OF DEVELOPMENT ORDER APPEAL

Petitioner Department of Community Affairs, ("Department" or "DCA"), hereby notices

dismissal of its appeal of the City of Palm Coast Development Order (DO) for the Old Brick

Township Development of Regional Impact (DRI), and in support thereof states:

1. On June 7, 2011, the parties executed a stipulated settlement agreement

(Agreement) for DOAH cases 10-101 04GM (; and 10-1 0544DRI, agreeing that the comprehensive

plan amendment would be in compliance and the Department's appeal of the DRI DO would be

resolved if certain remedial actions were taken by the City of Palm Coast. The Agreement

required the following:

4. Dismissal. If the Local Government completes the Remedial Actions and

amendment to the Wilson Green DRI/DO required by this Agreement, and

complies with the Overlay Settlement Agreement, the Department shall: (i)

comply with the Overlay Settlement Agreement; (ii) issue a Notice of Intent

addressing both the Remedial Plan Amendment and the initial Plan Amendment

subject to these proceedings, and determine the Plan Amendment and Remedial

Plan Amendment to be in compliancepursuant to Paragraph 10.a. below; (iii) file

the cumulative Notice of Intent with DOAH; (iv) file a request to relinquish

jurisdiction to the Department for dismissal of this proceeding or for realignment

of the parties, as appropriate under Section 163 .3184(16)(f), Florida Statutes; (v)

dismiss the Wilson Green DRIIDO Petition ("DCA DRIIDO Petition Dismissal")

at which time the Department hereby agrees the OBT DRIIDO, as amended, is

EXHIBIT A

consistent with Section 380.06, Florida Statutes, Rule 9J-2, Florida

Administrative Code, and will take no further actions adverse to the OBT

DRI/DO, as amended, in any other related proceedings.

2. The City of Palm Coast (City) adopted its l1-R3 remedial amendments in the

"Overlay" case, DOAH 10-9050GM, on June 21, 2011, by Ordinance No. 2011-11, and the

Department issued its "nochallenge" letter on July 1, 2011.

3. Although the terms of the Agreement state that DCA will issue Notices of Intent

finding the Plan Amendment and the Remedial Plan Amendment in compliance, recent statutory

changes no longer direct the Department to issue such a notice for thoseamendments. In

paragraph 7, the Agreement incorporates inconsistent changes in statutes into the Agreement, thus

the statutory changes take precedence.

4. Instead of issuing a Notice of Intent for the remedial amendment, a courtesy letter

was issued by the Department to the City on July 1,2011, stating that the Department has

completed its review of the l1-Rl remedial amendment for the Old Brick Township DRI

comprehensive plan amendment, the Department has reviewed the amendment in accordance with

the expedited state review process, and the Department has identified no'provision that

necessitates a challenge pursuant to Section 163.3184(3),Florida Statutes.

5. On June 21,2011, pursuant to the Agreement, the City adopted changes to the Old

Brick Township DRI DO by Resolution 2011-56. Relevant portions of Resolution 2011-56 are

attached hereto as Exhibit A.

6. In accordance with the Agreement quoted above, the Department hereby dismisses

its appeal of the OBT DRI/DO Petition.

7. All parties agree that this matter should be dismissed and this case closed.

WHEREFORE. the Department respectfully requests that the Commission enter an Order

Closing File.

Respectfully submitted this 8th day of August, 2011.

, \\ J

Lk

Lynette Norr"\\y

Florida Bar No. 0010717

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

[phone] Phone

[e-mail]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to each

ofthe persons listed below by the manner indicated on this 8th day of August, 2011.

BY INTER-AGENCY MAIL: BY FIRST CLASS MAIL:

The Honorable Rick Scott, Governor Wilson Green, LLC

Office of Governor c/o Fletcher Management Company

The Capitol 1548 The Greens Way, Suite 4

PL02 Jacksonville Beach, Florida 32250

Tallahassee, Florida 32399-0001

The Honorable Jon Netts, Mayor

The Honorable Pam Bondi, Attorney General City of Palm Coast

Department of Legal Affairs 160 Cypress Point Parkway, Suite B-1 06

The Capitol Palm Coast, FL 32164

PLOI

Tallahassee, Florida 32399-1050 The Honorable Holsey Moorman

Coundl Member, District 1

The Honorable Jeff Atwater City of Palm Coast

Chief Financial Officer 160 Cypress Point Parkway, Suite B-1 06

The Capitol Palm Coast, FL 32164

LL26

Tallahassee, Florida 32399-0300 The Honorable Frank Meeker

Council Member, District 2

The Honorable Adam Putnam, Commissioner City of Palm Coast

The Capitol 160 Cypress Point Parkway, Suite B-1 06

PL08 Palm Coast, FL 32164

Tallahassee, Florida 32399-0810

The Honorable Mary DiStefano

Council Member, District 3

City of Palm Coast

160 Cypress Point Parkway, Suite B-1 06

Palm Coast, FL 32164

BY ELECTRONIC MAIL

The Honorable Bill Lewis

Council Member, District 4 Catherine D. Reischmann, Esq.

City of Palm Coast Debra S. Babb-Nutcher, Esq.

160 Cypress Point Parkway, Suite B-1 06 Gregg A. Johnson, Esq.

Palm Coast, FL 32164 Brown, Garganese, Weiss &

D'agresta, P.A.

Brian Teeple 111 N. Orange Ave., Ste. 2000

Chief Executive Officer Orlando, Florida 32802

Northeast Florida Regional Council [e-mail]

6850 Belfort Oaks Place [e-mail]

Jacksonville, Florida 32216 [e-mail]

Reginald L. Bouthillier, JT., Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32301-7742

[e-mail]

RESOLUTION NO. 2011- Sk..

STllPULA TED SET1rLEMENT AGREEMENT

OLD BRICK TOWNSHiP

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF PALM COAST, FLORIDA, APPROVING THE OLD

BRICK TOWNSHIP STIPULATED SETTLEMENT

AGREEMENT WITH THE DEPARTMENT OF

COMMUNITY AFFAIRS, FLORIDA WILDLIFE

FEDERATION AND WILSON GREEN, LLC;

APPROVING AN AMENDMENT TO THE OLD BRICK

TOWNSIDP DEVELOPMENT OF REGIONAL IMPACT

DEVELOPMENT ORDER; PROVIDING FOR

EXHIBITS; PROVIDING FOR RECORDATION;

AUTHORIZING THE MAYOR TO EXECUTE

SAID AGREEMENT; PROVIDING FOR

CONFLICTS; PROVIDING FOR IMPLEMENTING

ACTIONS; PROVIDING FOR SEVERABILITY;

AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, the State of Florida, Department of Community Affairs ("DCA"), is the

state land planning agency and has the authority to administer and enforce the Local

Government Comprehensive Planning and Land Development Regulation Act, Chapter 163,

Part II, Florida Statutes, and the Florida Environmental Land and Water Management Act of

1972, Chapter 380, as codified in Part I, Florida Statutes; and

WHEREAS, the City of Palm Coast ("City") is a local government with the duty to

adopt comprehensive plan amendments that are "in compliance" and issue development orders;

and

()

WHEREAS, the City adopted Comprehensive Plan Amendment 10-01 ("Plan

Amendment") by Ordinance No. 2010-12 o.n September 7,2010; and

WHEREAS, the Plan Amendment designates approximately 5,273 acres as City of Palm

Coast Development of Regional Impact-Mixed Use (approximately 4,429 acres) and

Conservation (approximately 844 acres); and

WHEREAS, DCA issued a Notice and Statement of Intent regarding the Plan

Amendment on November 10, 2010 contending the Plan Amendment is "not in compliance" and

initiated a formal administrative proceeding challenging the Plan Amendment ("Plan

Amendment Case"); and

EXHIBIT

{OO192016.DOC.2} Resolution No. 2011- 51.0 A

Page 1 of 3

WHEREAS, the City adopted Resolution No. 20 10- I 14 approving the Development of

Regional Impact Development Order for the development of 5,273 acres known as Old Brick

Township on September 7,2010 ("Old Brick Township DRI"); and .

WHEREAS, DCA filed a Petition for Appeal of a Development Order ("DRI Case") on

November 5,2010 challenging the Old Brick township DRI; and

WHEREAS, the City and Wilson Green, LLC dispute the allegations in the Plan

Amendment Case and the DRI Case; and

WHEREAS, by way of the Order issued by Administrative Law Judge David M.

Maloney, dated December 29, 2010, the Plan Amendment Case (DOAH Case No. 10-] 0104GM)

and the DRI Case (DOAH Case No. 1O-10544DRI) were consolidated into one administrative

proceeding; and

WHEREAS, the Old Brick Township Stipulated Settlement Agreement attached as

Exhibit "A" wilI resolve the disputed issues within the DRI Case and Plan Amendment Case, and

avoid the expense, delay and uncertainty of lengthy litigation; and

WHEREAS, the City Council of the City of Palm Coast held an advertised public

hearing on June 7, 2011 to the Old Brick Township Stipulated Settlement

Agreement which includes an amendment to the Old Brick Township DRI Development

Order.

NOW, THEREFORE, BE IT RESOL YED BY THE CITY COUNCIL OF THE

CITY OF PALM COAST:

SECTION 1. APPROVAL OF THE OLD BRICK TOWNSHIP STIPULATED

SETTLEMENT AGREEMENT. The City Council of the City of Palm Coast hereby

approves the Old Brick Township Stipulated Settlement Agreement as attached hereto and

incorporated herein as Exhibit "A." .

SECTION 2. APPROVAL OF AMENDMENT TO OLD BRICK TOWNSHIP

DR!. The approval of the Old Brick Township Stipulated Settlement Agreement also

incorporates the City Council of the City of Palm Coast's approval. hereby of the amendment

to the Old Brick Township DRI Development Order as specifically provided for within

Exhibit "A".

SECTION 3. RECORDATION. The City of Palm Coast shall record the Old Brick

Township Stipulated Settlement Agreement in the Official Land Records of Flagler County,

Florida as provided for therein.

SECTION 4. SIGNATORY AUTHORITY. The Mayor is hereby authorized to

execute the Old Brick Township Stipulated Settlement Agreement.

{OO192016DOC.2} Resolution No. 2011·

Page 2 of3

SECTION 5. CONFLICTS. All resolutions or parts of resolutions in conflict with

any of the provisions of this Resolution are hereby repealed.

SECTION 6. IMPLEMENTING ACTIONS. The City Manager is hereby

authorized to take any actions necessary to implement the action taken in this Resolution.

SECTION 7. SEVERABILITY. lfany section or portion of a section of this Resolution

proves to be invalid, unlawful, or unconstitutional, it shall not be held to invalidate or impair

the .. ' •• _ II'f,'1 or effect of any other section or part of this Resolution.

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x ·f ". \\.:, ,04 'SECTION .. '1 " 8. EF..FECTIVE " DATE. This Resolution shall be effective upon approval

of Palm Coast.

::l . ..... '., -: t' ..

{,. a Hearing this 7 th day of June 2011.

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rl .... '''-It'' .. ...: \\ j ,,0 .... \\'

I \\' \\ \\ CITY OF PALM COAST, FLORIDA

ATTEST:

on tt _', or ,

Approved as to fonnand legality

WilliamE. Reischmann, Jr. Esq.

City Attorney

Attachment: Exhibit "A" -'Old Brick Township Stipulated Settlement Agreement

TAL 451.597.9i3v2 5-9-11

{OO192016.DOC.2} Resolution No. 2011- 51

Page 3 of3

Pages 4-53 of the 60-page Ordinance, which are attachments thereto, have not been reproduced here.

THE NEWS-JOURNAL CITY OF PALM COAST

Published Daily and Sunday . NOTICE OF PUBLIC HEARING ON

Daytona Beach, Volusia County, Florida ; STIPULATED SEtTLEMENT AGREEMENT

State of Florida, AND AMENDMENT TO OLD BRICK

County of Vol usia TOwNSHIP DEVELOPMENT OF REGIONAL

Before the undersigned authority personally appeared IMPACT DEVELOPMENT ORDER

Notice is baeby given that a public bearing will be held.before the City Council of the City of

Coast Pahn Cliast Parkway on Northeast, Juoe 7, 201I Palm Coast, Aorida. at 6:30 The PM. purpose in City of Council the be3ring Chambers, is to hear at 305 all inler­ Pabn

Cynthia Maley ested parties and ad upon a JllllllOSCd SlipIll,aled Settlement Agretmenl with the Florida

,iocludes Department an of 2mendment Community In Affairs the Old '(fOCA) Brie.\\: and TOWllShip aIIInlerven

who, on oath says that she is . Development Onlet. The title of ResoilIlion is as follows:

LEGAL COORDINATOR , RESOWl10N NO. 2011- XX

SfIPULATED .. OLD SEITLEMENT BRICK TOWNSHIP AGREEMENT

of The News-Journal, a daily and Sunday newspaper, FLORIDA, A RESOLImONOF APPROVING THE THE CITY OLD COUNCIL BRICK OF TOWNsmP THE CITY SI1PULATED OF PALM COAST, SET·

attached published at Daytona copy Beach of in advertisement, Volusia County, Florida; being the a. . AFFAIRS, TLEMENT FLORIDA AGREEMENT WILDLIFE WITH FEDERATION THE' DEPARTMENT AND Wll.SON OF COMMUNITY GREEN, LLC;

MENT APPROVING OF REGIONAL AN AMENDMENT IMPACT TO DEVELOPMENT THE OLD BRICK ORDER; TOWNSHIP PROVIDING DEVELOP· FOR

NOTICE OF PUBLIC HEARING TO EXHIBITS; EXECUTE PROVIDING SAID AGREEMENT; FOR RECORDATION; PROVIDING AUTHORIZING FOR CONFLIcrs; THE PROVID­ MAYOR

'ING FOR IMPLEMENTING ACI10NSj PROVIDING FOR SEVERABILITY;

L 936062 AND PROVIDING FORAN lFFECrIVEDATE. .

The raised Stipulated by the FDCA. SettlementAgreement. Petitioner, and Florida is iDttnd¢ Wtldlife as a Fedeialion complete and (FWF),lDlaveDCf, final settlunent of in all Division claims

in the Court, !date. of Administrlltive to Comprthensive He.ving PlanAme:ndmeut (OOAH) Case Nos. Io-DI !o-IOIMGM adopted IIIIder and lo-10544DRl, No, which 2010-12 ca.ses on

was published in said newspaper in the issues . September 7, 2010 and the Development of Regional bnpact Development 0n!eI' adopted under

MAY23,20Il tively. ResolutioD No. . 2010-114 011 Septemba 7, 2010 fir the Old Brick Township ., reSpec-

proposed A copy of resolliion lhiJ ooOee. are the miIable ljle relating for public to the proposed inspection Stipulated during reguIar SettlemcDt business Agreement hours Monday and the

published Affiant further at Daytona says Beach, that The in News-Journal said Volusia County, is a newspaper Florida, C)'Pl'SS through Point Friday Parkway, from 8:00 Suite a.m. B-106. 10 5:00 All p.rn. iDtaested in the parties Palm are Coast invited Crty 10 Offices appear located at the meeting at 160

and that the said newspaper has heretofore been continuously and be heard with. respect to the proposed legislation. Any pmllII wishing to express bislber

published in said Vol usia County, Florida, each day and lllrough opinion the may Community also sllbmit Development wriltell COlIlIlICnls J)epartnEnl reg.vdi.ng COIIlIllellIs the proposed sIlouJd be kgislalion made U C2fly to the a3 p0s­ City

the Sunday post and office has in been Daytona entered Beach, as second-class in said Volusia mail matter County, at sible to ensure fun considetatiOll.

Florida, for a period of oneyear next preceding the first If a pe:sou decides any decisioo made willi respect to any mailer coosidmd at the

may above be refereoced neassary hearing. to tIlSilIe heJsbe that,A wiIlllCed'a vabatim record record of of the !be proceedings proceedings. is For made, suclI which purposes, record it

further publication says of that the he attached has neither copy paid of advertisement; nor promised any and person, affiant iDcludes the testimony and evidence upon which !be appeal is to be bastd

firm or corporation any discount, rebate, commission or 'jl3Ie In accordance in 2IIy of tJ.,se with proceedings the should ww. cool3Cl DiJDhiJititJ the City Act, Oerl:'s pmons Office needing at 386-986-3713 assisbnce to partici­ at least

refund for the purpose of securing this advertisement for 48 boUls Jrior 10 the meeting. .

pubficatio/1 the sai,d r\\spaper

..

Sworn to and subscribed before me '- (S

This 23 RD of MAY

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49D

- Comrnission RACHAEL L. #OD SMITH 987348

My Comml5s/on October 7. 2012 Explru