Department of Community Affairs, Division of Community Planning

DEPARTMENT OF COMMUNITY AFFAIRS
Division of Community Planning

DCA Final Order No.: DCA11-OR-141

DCA Final Order No.: DCA11-OR-141

In re:      POLK COUNTY LAND DEVELOPMENT

                REGULATIONS ADOPTED BY

                POLK COUNTY ORDINANCE NO.11-008

_______________________________________________/

FINAL ORDER

The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to §§ 380.05(6) and (11), Florida Statutes, (2010), approving Polk County Ordinance No. 11-008.

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 July 8, 2011, the Department received for review Polk County Ordinance No. 11-008 that was adopted by the Polk County Board of County Commissioners on June 28, 2011.

 3. Proposed Ordinance No. 11-008 amends Ordinance No. 00-09, Land Development Code, amending the Use Tables in Chapters 2, 4, and 5 providing for Permitted and Conditional Use Reviews; amending Chapter 2, Land Use Districts and Regulations; amending Chapter 7, Site Development Standards, providing for Site Development Criteria; and amending Chapter 10, Definitions, providing for definitions to address a new use know as Agritourism.

 4. Proposed Ordinance No. 11-008 amends Section 222.D of the Polk County Land Development Code to allow general farming and animal grazing uses in all land use categories; amends Chapter 2 of the Land Development Code to include Section 229 Agritourism identifying the criteria, level of review and associated regulations for the development of Agritourism uses; and amends Chapters 7 and 10 to include parking and buffering regulations as well as definitions for Agritourism.

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 The Department is required to approve or reject land development regulations that are enacted, amended or rescinded by any local government in the Green Swamp Area of Critical State Concern.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. (2010).

6. Polk County is a local government within the Green Swamp Area of Critical State Concern. § 380.0551, Fla. Stat. (2010) and Rule Chapter 28-26, Fla. Admin. Code.

7. “Land development regulations” include local zoning, subdivision, building and other regulations controlling the development of land. § 380.031(8), Florida Statutes (2010). 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. § 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 in the Green Swamp Area of Critical State Concern are set forth in Rule 28-26.003, Florida Administrative Code. (“Principles”).

9. Ordinance No. 11-008 furthers Principles for Guiding Development, paragraphs 28-26.003(1)(a) and (b), Florida Administrative Code.

(a) Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas.

(b) Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern.

 10. Ordinance No. 11-008 is consistent with the Principles for Guiding Development as a whole and is not inconsistent with any Principle.

 11. Ordinance No. 11-008 is consistent with the Polk County Comprehensive Plan and furthers Future Land Use Policies 2.132-D4 and 2.132-E19.

WHEREFORE, IT IS ORDERED that Ordinance No. 11-008 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.

                __________________________________

                J. Thomas Beck, 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 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, 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, IN THE DEPARTMENT’S 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 SUBSECTION 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 22nd day of July, 2011.

                _________________________

                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

 

Edwin V. Smith, Chairman

Board of County Commissioners

P. O. 9005, Drawer BC01

Bartow, FL 33831