DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order no.: DEO-14-070
In re:LAND DEVELOPMENT REGULATIONS
ADOPTED BY THE CITY OF MASCOTTE,
FLORIDA, ORDINANCES NOS. 2007-10-452,
2008-07-466, 2008-03-460, 2008-08-467, 2008-07-460,
2008-07-455, 2008-03-450, 2009-05-479, 2010-01-483,
2011-08-498, 2011-05-496, 2012-05-505, 2012-02-501
_______________________________________________
FINAL ORDER
CITY OF MASCOTTE ORDINANCES NOS. 2007-10-452, 2008-07-466, 2008-03-460, 2008-08-467, 2008-07-460, 2008-07-455, 2008-03-450, 2009-05-479, 2010-01-483, 2011-08-498, 2011-05-496, 2012-05-505, 2012-02-501
The Department of Economic Opportunity (the “Department”) hereby issues its Final Order, pursuant to §§ 380.05(6) and (11), Fla. Stat., approving in part and rejecting in part land development regulations adopted by the City of Mascotte, Florida, by Ordinance Nos. 2007-10-452, 2008-07-466, 2008-03-460, 2008-08-467, 2008-07-460, 2008-07-455, 2008-03-450, 2009-05-479, 2010-01-483, 2011-08-498, 2011-05-496, 2012-05-505, and 2012-02-501 (the “Ordinances.”)
FINDINGS OF FACT
The Green Swamp Area is designated by § 380.0551, Fla. Stat., as an area of critical state concern. The City of Mascotte is a local government, a portion of which is within the Green Swamp Area.
The Ordinances were adopted by the City of Mascotte on December 3, 2007, August 4, 2008, April 21, 2008, October 20, 2008, August 4, 2008, April 21, 2008, August 4, 2008, April 21, 2008, May 18, 2009, February 1, 2010, August 15, 2011, June 6, 2011, May 21, 2012, and March 5, 2012, respectively. All Ordinances were rendered to the Department on April 4, 2014. Taken together, the Ordinances adopt the City’s Land Development Code, including its land development regulations.
The land development regulations in the Ordinances are consistent with the City’s Comprehensive Plan and the Principles for Guiding Development for the Green Swamp Area of Critical State Concern (“Principles”) except for the following sections of the Land Development Code that are inconsistent with the City’s Comprehensive Plan and the Principles:
Article 3, Section 3.6(H): Procedures for Land Use Decisions; Similar and Compatible Use Determinations. This section allows the City to approve unlisted uses in zoning districts that are similar to, and compatible with, listed permitted or conditional uses. The City has not amended its Comprehensive Plan to create specific land uses for the Green Swamp Area of Critical State Concern (the “Green Swamp”), possibly allowing any use, permitted or conditional, in the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1) (a) through (k).
Article 3, Section 3.9: Establishment of Zoning Districts. The zoning districts in the Land Development Code have no foundation, or match any other provisions, in the Comprehensive Plan because the only designation in the Future Land Use Map is “Conservation.” The lack of matching land use districts in either the Comprehensive Plan or the Future Land Use Map, could allow any of the districts to be created in the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1) (a) through (k).
Article 3, Section 3.11: Use Regulations. The use regulations for the zoning districts established in Section 3.9 of the Land Development Code have no foundation, or match any other provisions, in the Comprehensive Plan because the only designation in the Future Land Use Map is “Conservation.” The lack of matching land use districts in the Comprehensive Plan or the Future Land Use Map, could allow any of the uses in Section 3.11 to take place in the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 3, Section 3.20(C): Nonconformance; Use of Lots Nonconforming in Size. Lot sizes, including minimum lot sizes, have not been adopted in the Comprehensive Plan and, furthermore, the recognition of lot creation is tied to the adoption of the Land Development Regulations and not the adoption of the Comprehensive Plan. The lack of lot size standards in the Comprehensive Plan could allow densities and/or intensities of uses that could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 4, Section 4.7(B)(sub-sub 2): Planned Unit Developments; Additional Requirements for Residential Components of Planned Unit Developments; Open Space. The Comprehensive Plan lacks any established provisions concerning Open Space, and the lack of such provisions could allow densities and/or intensities of uses and insufficient open space that could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 4, Section 4.10: Nonstatutory Lot Splits. This provision provides for the splitting of lots; whereas lot sizes, including minimum lot sizes, have not been adopted in the Comprehensive Plan. The lack of lot size standards in the Comprehensive Plan could allow densities and/or intensities of uses that could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Sections 5.7(D)(1)(c) and (d): Environmental Preservation and Protection; Wetlands Protection; Purpose and Intent. These provisions allow for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Section 5.7(D)(3): Environmental Preservation and Protection; Wetlands Protection; Application Procedures and Submittal Requirements. This provision allows for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Section 5.7(D)(4): Environmental Preservation and Protection; Wetlands Protection; Conditions of a Wetlands Approval. This provision allows for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Section 5.7(D)(5): Environmental Preservation and Protection; Wetlands Protection; Factors to be Considered. This provision allows for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Section 5.7(D)(6): Environmental Preservation and Protection; Wetlands Protection; Inspections and Enforcement. This provision allows for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Section 5.7(D)(7): Environmental Preservation and Protection; Wetlands Protection; Denial, Suspension, or Revocation of Approval. This provision allows for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Section 5.7(D)(8): Environmental Preservation and Protection; Wetlands Protection; Appeals. This provision allows for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 5, Section 5.7(D)(9): Environmental Preservation and Protection; Wetlands Protection; Exemptions. This provision allows for development of wetlands, of which there is no Comprehensive Plan mapping or resource mapping delineating the size, scope, or areas of any wetlands within the City. Allowing development within wetlands could damage the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
Article 7, Section 7.3 (D)(5): Green Swamp Overlay Area. This provision allows pre-treated stormwater, as well as treated industrial waste, sewage or other man-induced wastes to be discharged into wetlands in conformance with Florida Department of Environmental Protection rules and regulations. This could allow industrial and other uses in the Green Swamp, as well as transmission of untreated wastes, through the Green Swamp, making this section inconsistent with Fla. Admin. Code r. 28-26.003(1)(a) through (k).
CONCLUSIONS OF LAW
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. §§ 380.05(6) and (11), Fla. Stat.
“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 City Ordinances Nos. 2007-10-452, 2008-07-466, 2008-03-460, 2008-08-467, 2008-07-460, 2008-07-455, 2008-03-450, 2009-05-479, 2010-01-483, 2011-08-498, 2011-05-496, 2012-05-505, and 2012-02-501 are land development regulations.
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) and (11), Fla. Stat. The Principles for Guiding Development for the Green Swamp Area of Critical State Concern are set forth in Fla. Admin. Code r. 28-26.003.
The land development regulations in City Ordinance Nos. 2007-10-452, 2008-07-466, 2008-03-460, 2008-08-467, 2008-07-460, 2008-07-455, 2008-03-450, 2009-05-479, 2010-01-483, 2011-08-498, 2011-05-496, 2012-05-505, and 2012-02-501 comprise the City’s Land Development Code and are consistent with the Principles for Guiding Development for the Green Swamp Area of Critical State Concern in Fla. Admin. Code r. 28-26.003, except for Land Development Code sections: Article 3, Section 3.6(H); Article 3, Section 3.9; Article 3, Section 3.11; Article 3, Section 3.20(C); Article 4, Section 4.7(B)(sub-sub 2); Article 4, Section 4.10; Article 5, Section 5.7(D)(1)(c) and (d); Article 5, Section 5.7(D)(3); Article 5, Section 5.7(D)(4); Article 5, Section 5.7(D)(5); Article 5, Section 5.7(D)(6); Article 5, Section 5.7(D)(7); Article 5, Section 5.7(D)(8); Article 5, Section 5.7(D)(9); and Article 7, Section 7.3(D)(5) which are inconsistent with the Principles.
WHEREFORE, IT IS ORDERED as follows:
A.Except for the Land Development Code sections identified in paragraph B below, City of Mascotte Ordinance Nos. 2007-10-452, 2008-07-466, 2008-03-460, 2008-08-467, 2008-07-460, 2008-07-455, 2008-03-450, 2009-05-479, 2010-01-483, 2011-08-498, 2011-05-496, 2012-05-505, and 2012-02-501 are found to be consistent with the Principles for Guiding Development for the Green Swamp Area of Critical State Concern and with the requirements of sections 380.05(6) and (10), Fla. Stat., and are hereby APPROVED.
B.The land development regulations in the City’s Land Development Code at sections: Article 3, Section 3.6(H); Article 3, Section 3.9; Article 3, Section 3.11; Article 3, Section 3.20(C); Article 4, Section 4.7(B)(sub-sub 2); Article 4, Section 4.10; Article 5, Section 5.7(D)(1)(c) and (d); Article 5, Section 5.7(D)(3); Article 5, Section 5.7(D)(4); Article 5, Section 5.7(D)(5); Article 5, Section 5.7(D)(6); Article 5, Section 5.7(D)(7); Article 5, Section 5.7(D)(8); Article 5, Section 5.7(D)(9); and Article 7, Section 7.3(D)(5) are found to be inconsistent with the Principles for Guiding Development for the Green Swamp Area of Critical State Concern and with the requirements of sections 380.05(6) and (10), Fla. Stat., and are hereby REJECTED. Therefore, these Code sections do not apply within the Green Swamp Area of Critical State Concern.
This Order becomes effective 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/___________________________________
WILLIAM B. KILLINGSWORTH
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 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 STREET, MSC 110
TALLAHASSEE, FLORIDA 32399-4128
FAX NUMBER 850-921-3230
CLERK’S EMAIL: JAMES.BELLFLOWER@DEO.MYFLORIDA.COM
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 _3_ day of June, 2014.
/s/_____________________________
James W. Bellflower, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399-4128
Telephone: (850)245-7160
By U.S. Mail:
Honorable Tony Rosado, Mayor
City of Mascotte
100 E. Myers Blvd
Mascotte, FL 34753
Michelle Hawkins, City Clerk
City of Mascotte
100 E. Myers Blvd
Mascotte, FL 34753
By Hand Delivery or Interagency Mail:
Rebecca Jetton, ACSC Administrator, DEO Tallahassee
