In re: POLK COUNTY LAND DEVELOPMENT
REGULATIONS ADOPTED BY
POLK COUNTY ORDINANCE NO. 10-013
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FINAL ORDER
The Department of Community Affairs (the Department) hereby issues its Final Order, pursuant to Sections 380.05(6) and (11), Florida Statutes (2009), approving Polk County Ordinance No. 10-013.
FINDINGS OF FACT
1. The Green Swamp Area is a statutorily designated area of critical state concern, and Polk County is a local government within the Green Swamp Area.
2. On May 27, 2010, the Department received for review Polk County Ordinance No.: 10-013 which was adopted by the Polk County Board of County Commissioners on April 7, 2010.
3. Proposed Ordinance No.: 10-013 amends Section 227, A5 Exemptions and only allows the removal of 8,000 cubic yards of soil in conjunction with an approved development order or permit. The applicable development order or permit involves review at Level 2 and Level 4 and requires a recommendation from the Development Review Committee, a public hearing before the Planning Commission with a formal recommendation, and a public hearing before the Board of County Commissioners pursuant to Section 903 of the Polk County Land Development Code.
4. The Ordinance is consistent with the Countys Comprehensive Plan Goals, Objectives, and Policies including Policy 2.102-A6: Topography Considerations, requiring Polk County to evaluate all development within unincorporated Polk County with regard for and for impacts on existing topography; and Policy 2.102-A7: Soils, requiring Polk County to evaluate all development within unincorporated Polk County with regard for and for impacts on soils.
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 The Department is required to approve or reject land development regulations that are enacted, amended or rescinded by any local government in the Green Swamp Area of Critical State Concern. Sections 380.05(6) and (11), Florida Statutes (2009).
6. Polk County is a local government within the Green Swamp Area of Critical State Concern. Section 380.0551, Florida Statutes (2009) and Rule Chapter 28-26, Florida Administrative Code.
7. Land development regulations include local zoning, subdivision, building and other regulations controlling the development of land. Section 380.031(8), Florida Statutes (2009). The regulations adopted by the Ordinances are land development regulations.
8. All land development regulations enacted, amended or rescinded within an area of critical state concern must be consistent with the principles for guiding development for that area. Section 380.05(6), Florida Statutes; see Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), affd, 740 So. 2d 1209 (Fla. 3d DCA 1999). The principles for guiding development in the Green Swamp Area of Critical State Concern are set forth in Rule 28-26.003, Florida Administrative Code (Principles).
9. Ordinance No. 10-013 is consistent with the Principles in Rule 28-26.003, Florida Administrative Code, and are not inconsistent with any one Principle.
WHEREFORE, IT IS ORDERED that Ordinance No.: 10-013 is found to be consistent with the Principles for Guiding Development of the Green Swamp Area of Critical State Concern, and is hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below.
DONE AND ORDERED in Tallahassee, Florida.
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CHARLES GAUTHIER, AICP
Director, Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
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 AGENCYS 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 DEPARTMENTS 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 DEPARTMENTS 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, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO 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 COMMUNITY AFFAIRS 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 THE: AGENCY CLERK, DEPARTMENTS OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN SUBSECTION 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 SUBSECTION 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 13th day of July, 2010.
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Paula Ford, Agency Clerk
By U.S. Mail:
Michael F. Craig, Esq.
Polk County Attorney
Drawer AT01
P. O. Box 9005
Bartow, FL 33831
Thomas Deardorff, Director
Growth Management Department
P. O. Box 9005, Drawer GM03
Bartow, FL 33831
Sam Thomas, Chairman
Board of County Commissioners
P. O. 9005, Drawer BC01
Bartow, FL 33831
