DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order No. DEO-19-010
In re:A LAND DEVELOPMENT REGULATION
ADOPTED BY CITY OF APALACHICOLA,
ORDINANCE NO. 2018-07
_______________________________________________
FINAL ORDER
APPROVING APALACHICOLA ORDINANCE NO. 2018-07
The Department of Economic Opportunity (“Department”) hereby issues its Final Order, pursuant to subsection 380.05(6), Florida Statutes, approving land development regulations adopted by the City of Apalachicola (“City”), Ordinance No. 2018-07 (the “Ordinance”).
FINDINGS OF FACT
1. The Apalachicola Bay Area is designated by Section 380.0555, Florida Statutes, as an area of critical state concern. The City is within the Apalachicola Bay Area.
2. The Ordinance was adopted by the City on February 5, 2019, and rendered to the Department on February 25, 2019.
3. The Ordinance amends the City’s Land Development Regulations by repealing and replacing existing language relating to the protection of trees. The Ordinance amends sections II and VII, and creates a new section XII of the Land Development Code.
a. In section II, the Ordinance removes the definition of the term “caliper,” revises the definition of the term “tree,” and creates definitions for the following terms: “diameter at breast height,” “drip line,” “patriarch tree,” “relocate,” and “substantial alteration.”
b. In section VII, the Ordinance amends the Site Plan Review Regulations by removing the “Time Limit on Approval” section, which required the reevaluation of a site plan if an applicant did not commence construction on a site within one year following the approval of the site plan. The Ordinance also amends section VII to require site plans containing maps and documents that indicate tree protection to include: a map with specified criteria, a plan for protecting trees, and a discussion of any proposed grade changes and how the changes would affect protected trees.
c. The Ordinance creates “Tree Protection” under Section XII to:
i. Identify a list of protected native trees;
ii. Require the preservation of patriarch trees;
iii. Specify the activities that do, and the activities that do not, require a tree permit;
iv. Establish a process for the issuance of permits for the removal, relocation, or substantial alteration of protected trees;
v. Prohibit certain activities to protect trees during building operations;
vi. Establish requirements for electric utility companies and their contractors to follow when tree pruning or trimming within the electric utility right-of-way;
vii. Create a Reforestation Fund, which is funded by the collection of fees for the removal of protected trees; and
viii. Establish penalties for an individual who substantially alters a protected tree.
d. The Ordinance also repeals Ordinance No. 2011-01 in its entirety.
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are adopted by any local government in an area of critical state concern. See subsection 380.05(6), Florida Statutes.
5. “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. Subsection 380.031(8), Florida Statutes. The regulations adopted by the Ordinance are land development regulations.
6. The Ordinance is consistent with the City’s Comprehensive Plan as required by subsection 163.3177(1), Florida Statutes, generally, and is specifically consistent with Coastal Management Element Objective 2, Coastal Management Element Policies 2.8 and 13.4, Conservation Element Objective 8, and Conservation Element Policy 5.4.
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. See subsection 380.05(6), Florida Statutes. The Principles for Guiding Development for the Apalachicola Bay Area of Critical State Concern are set forth in subsection 380.0555(7), Florida Statutes.
8. The Ordinance is consistent with the Principles for Guiding Development in subsection 380.0555(7), Florida Statutes, as a whole, and is specifically consistent with the following Principles:
(a) Land development shall be guided so that the basic functions and productivity of the Apalachicola Bay Area’s natural land and water systems will be conserved to reduce or avoid health, safety, and economic problems for present and future residents of the Apalachicola Bay Area.
(b) Land development shall be consistent with a safe environment, adequate community facilities, a superior quality of life, and a desire to minimize environmental hazards.
(c) Growth and diversification of the local economy shall be fostered only if it is consistent with protecting the natural resources of the Apalachicola Bay Area through appropriate management of the land and water systems.
WHEREFORE, IT IS ORDERED that the Department finds that the City of Apalachicola Ordinance No. 2018-07 is consistent with the City of Apalachicola’s Comprehensive Plan and the Principles for Guiding Development for the Apalachicola Bay Area of Critical State Concern and is hereby APPROVED.
This Final Order becomes final 21 days after publication in the Florida Administrative Register unless a petition is timely filed as described in the Notice of Administrative Rights below.
DONE AND ORDERED in Tallahassee, Florida.
/s/James D. Stansbury
James D. Stansbury, Bureau Chief
Bureau of Community Planning and Growth
Department of Economic Opportunity
Notice of administrative rights
Any person whose substantial interests are affected by this final order has the opportunity for an administrative proceeding pursuant to section 120.569, Florida statutes.
For the required contents of a petition challenging agency action, refer to SUBSECTIONS 28-106.104(2), 28-106.201(2), and SECTION 28-106.301, Florida Administrative Code.
Depending on whether or not material facts are disputed in the petition, a hearing will be conducted pursuant to either section 120.569 and SUBSECTION 120.57(1), Florida statutes, or Section 120.569 and SUBSECTION 120.57(2), Florida statutes.
Any petition must be filed with the agency clerk of the department of economic opportunity within 21 calendar days of the final order being published in the florida administrative register. A petition is filed when it is received by:
Agency Clerk, Department of Economic Opportunity, Office of the general Counsel
107 East Madison St., MSC 110, Tallahassee, Florida 32399-4128, Fax (850)921-3230.
You waive the right to any administrative proceeding if you do not file a petition with the agency clerk within 21 calendar days of the final order being published in the florida administrative register.
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 following persons by the methods indicated this 24th day of April, 2019.
/s/Stephanie Webster
Stephanie Webster, Agency Clerk, Department of Economic Opportunity, 107 East Madison Street, MSC 110, Tallahassee, FL 32399-4128
By U.S. Mail:
The Honorable Van W. Johnson, Sr., Mayor, Apalachicola City Hall, 192 Coach Wagoner Boulevard, Suite 1, Apalachicola, Florida 32320
Deborah Guillotte, City Clerk, Apalachicola City Hall, 192 Coach Wagoner Boulevard, Suite 1, Apalachicola, Florida 32320
Cindy Clark, City Planner, Apalachicola City Hall, 192 Coach Wagoner Boulevard, Suite 1, Apalachicola, Florida 32320
Lee Mathes, City Administrator, Apalachicola City Hall, 192 Coach Wagoner Boulevard, Suite 1, Apalachicola, Florida 32320
