Department of Economic Opportunity, Division of Community Development  

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    DEPARTMENT OF ECONOMIC OPPORTUNITY
    Division of Community Development

    DEO FINAL ORDER NO. DEO-13-020

    STATE OF FLORIDA

    DEPARTMENT OF ECONOMIC OPPORTUNITY

    In re:POLK COUNTY LAND DEVELOPMENT

    REGULATIONS ADOPTED BY POLK COUNTY

    ORDINANCE NO. 12-041.

    ________________________________________________/

    FINAL ORDER

    The Department of Economic Opportunity (the “Department”) hereby issues its Final Order, pursuant to §§ 380.05(6) and (11), Fla. Stat., rejecting Polk County Ordinance No. 12-041.

    FINDINGS OF FACT

    1. The Green Swamp Area is a statutorily designated area of critical state concern. § 380.0551, Fla. Stat. Polk County is a local government within the Green Swamp Area.

    2. On December 18, 2012, the Polk County Board of County Commissioners adopted Ordinance No. 12-041 (the “Ordinance”), a copy of which was received by the Department on December 21, 2012.

    3. The Ordinance amends the following provisions in the Polk County Land Development Code: Use Tables 2.1, 4.1, 4.3, 4.8, 4.12, 4.14, 4.16 and 5.2 (Use Tables for Green Swamp ACSC), Section 401.07 Table 1 Northridge Selected Area Plan, Section 403.01 Table 4 Wahneta Neighborhood Plan, Section 303 Conditional Uses, and Chapter 10 Definitions to add vehicle oriented recreation, provide for permitted and conditional land use districts and levels of review, provide for conditions of approval and provide for definitions. The Ordinance also deletes active recreation and amends definitions, standards and permitted and conditional land use districts for passive recreation, golf courses, high intensity recreation, low intensity recreation, recreation and amusement, marinas and related facilities – general, and recreation and amusement – intensive.

    4. The land development regulations in the Ordinance are not consistent with the Principles for Guiding Development and the Polk County Comprehensive Plan for the following reasons: Use Tables 4.8, 4.16 and 5.2 allow golf courses in a number of land use districts in the Green Swamp where golf courses are prohibited under the Polk County Comprehensive Plan. As to marinas, vehicle oriented recreation and general recreation and amusement, Section 303 provides that the Agricultural/Residential-Rural district is not considered a residential district when it is identified as residential in the Polk County Comprehensive Plan. In addition, Section 303 allows vehicle oriented recreation in the Preservation land use which allows non-motorized recreational uses and contains other restrictions with which the Ordinance is inconsistent.

    CONCLUSIONS OF LAW

    5. The Department is required to approve or reject land development regulations that are enacted, amended or rescinded by any local government in the Green Swamp Area of Critical State Concern. §§ 380.05(6) and (11), Fla. Stat.

    6. “Land development regulations” include local zoning, subdivision, building and other regulations controlling the development of land. § 380.031(8), Fla. Stat. The regulations adopted by the Ordinance are land development regulations.

    7. All land development regulations enacted, amended or rescinded within an area of critical state concern must be consistent with the principles for guiding development for that area. § 380.05(6), Fla. Stat.; see Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff’d, 740 So. 2d 1209 (Fla. 3d DCA 1999). The principles for guiding development for the Green Swamp Area of Critical State Concern are set forth in Rule 28-26.003, Fla. Admin. Code. (“Principles”).

    8. Those portions of the Ordinance identified in paragraph 4 above are inconsistent with the Principles in Rule 28-26.003, Fla. Admin. Code, as a whole and in particular with Principles (a) – (e) and (g) – (i).

    9. The portions of the Ordinance identified in paragraph 4 above are inconsistent with Policies 2.132-B8, 2.132-B9, 2.131-C8 and 2.118-A4 of the Polk County Comprehensive Plan.

    WHEREFORE, IT IS ORDERED that

    A. Tables 4.8, 4.16 and 5.2, and Section 303 for Marinas, Vehicle Oriented Recreation and Recreation and Amusement General, as amended by Polk County Ordinance No. 12-030, are found to be inconsistent with the Principles for Guiding Development for the Green Swamp Area of Critical State Concern, and are hereby REJECTED.

    B. Use Tables 2.1, 4.1, 4.3, 4.12 and 4.14; those portions of Section 303 deleting Active Recreation and amending provisions related to Passive Recreation, High Intensity Recreation, Low Intensity Recreation, and Intensive Recreation and Amusement; and the amendments to the Definitions in Chapter 10 of the County Code, are consistent with the Principles for Guiding Development are hereby APPROVED.

    This Order becomes effective 21 days after publication in the Florida Administrative Register unless a petition is filed as described below.

    DONE AND ORDERED in Tallahassee, Florida, this 15th day of February, 2013.

    ___/s/____________________________________

    J. Thomas Beck, AICP

    Director, Division of Community Development

    Department of Economic Opportunity

    NOTICE OF ADMINISTRATIVE RIGHTS

    ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY’S ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING.

    IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT’S ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION.

    IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.

    IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF ECONOMIC OPPORTUNITY A WRITTEN PLEADING ENTITLED, "PETITION FOR ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY:

    AGENCY CLERK

    DEPARTMENT OF ECONOMIC OPPORTUNITY

    OFFICE OF THE GENERAL COUNSEL

    107 EAST MADISON STREET, MSC 110

    TALLAHASSEE, FLORIDA 32399-4128

    FAX (850) 921-3230

    THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.

    A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.

    YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER.

    CERTIFICATE OF FILING AND SERVICE

    I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below by the method indicated this 18th day of February, 2013.

    _/s/__________________________________

    Miriam Snipes, Agency Clerk

     

    By U.S. Mail:

    Melony M. Bell, Chairman

    Polk County Board of County Commissioners

    P.O. Box 9005, Drawer BC01

    Bartow, FL 33831-9005

     

    Richard M. Weiss, Clerk

    Polk County Board of County Commissioners

    P.O. Box 9005, Drawer BC01

    Bartow, FL 33831-9005

     

    Michael F. Craig, Esq.

    Polk County Attorney

    330 West Church Street

    Bartow, FL 33830

     

    Thomas Deardorff, AICP, Director

    Polk County Office of Planning and Development

    P.O. Box 9005, Drawer GM01

    Bartow, FL 33831-9005

     

    By Hand Delivery or Interagency Mail:

    Rebecca Jetton, Community Planning Administrator, DEO Tallahassee

    Sherry A. Spiers, Assistant General Counsel, DEO Tallahassee

     

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