Okaloosa County BOCC — January 19, 2016 — OC-9 Staff Analysis Of Issues Raised By Jill Crew — reading text

EXHIBIT OC-9 STAFF ANALYSIS OF ISSUES RAISED BY JILL CREW This analysis is intended to respond to issues raised by Jill Crew, Esq. in her June 12, 2015 letter to Elliot Kampert, Growth Management Director, October 29, 2015 letter to Greg Stewart, County Attorney, and her December 17, 2015 letter to John Hofstad, County Administrator. ISSUE 1: BBR Has No Authority to Amend the Magnolia Plantation Master Development Plan. Staff analysis: Resolution 90-41 (April 3, 1990) added the 210 acre tract commonly known as Magnolia Plantation to the BWB DRI. Section 4 of the Resolution states as follows: SECTION 4: SUCCESSORS The provisions of Development Order #77-1 were specifically made applicable to BBDC and its successors in interest. This Amended Development Order shall be applicable to BBDC, its successors in interest, and to EFI and its successors in interest. “Successor in interest” is defined in Black’s Law Dictionary as One who follows another in ownership or control of property. A successor in interest retains the same rights as the original owner, with no change in substance. CONCLUSION: The co-applicant, Bluewater Bay Resort, LLC, (BBR) is the owner of record and apparent successor in interest, and would retain the same rights as BBDC and EFI. As such, the applicant has legal standing to file the application. ISSUE 2: BBDC and EFI Relinquished Unused Residential Entitlements. Staff analysis: “Residential entitlements” are loosely defined as the number of residential units authorized for development within the DRI through the development order and the various amendments thereto, as approved by the Board of County Commissioners. Developers and owners of property within the DRI have no legal authority to create or relinquish authorized development. The DRI amendment process established by law recognizes that during the life of a DRI changes may be necessary or desirable from time to time. The original development order has been amended numerous times since 1977 resulting in the increase and decrease of authorized residential units, commercial space, relocation of uses on the Master Development Map, and other such changes. In each case, an applicant went through the formal process of obtaining approval from the BCC. The fact that one applicant obtained approval for a particular change does not preclude another applicant from requesting a change to the same property at a later date. CONCLUSION: The Board of County Commissioners may amend the DRI DO according to the legally prescribed procedure, and may change or adjust any given set of “entitlements” in response to a legally filed application. ISSUE 3: Wetland Protections and Development Around the Magnolia Plantation Golf Course. Staff analysis: Wetland protection measures specified in Resolution No. 90-41 are, in pertinent part, as follows: Except for such pedestrian and/or golf vehicle crossings which DER and COE permit, all wetlands as shown on the Master Land Use Plan shall be protected from development activity. Any construction on or development of areas adjacent to designated wetland areas 1  shall be accomplished in accordance with the rules and regulations of DER and COE applicable to such areas. The jurisdictional extent of the wetland area was determined by permitting agencies and denoted as “EP” (Environmental Preserve) on the DRI Master Development Map. The proposed change to the DRI DO does not involve any change to or adjustment of the area denoted as EP, consistent with Resolution No. 90-41. With regard to stormwater management Resolution No. 90-41 states as follows. Stormwater Management. The stormwater management system shall operate with respect to the 210 Acre Parcel so that the following items result: a) erosion is controlled; b) surrounding lakes, streams, property and waters of Choctawhatchee Bay are not negatively impacted by runoff; c) treated stormwater runoff will be permitted to drain in a natural manner through the wetlands into the Bay; and d) during and subsequent to construction the quality of runoff reaching the Bay will be essentially the same as it is in the pre-development state of the property. The drainage system will include the use of swales and natural sloughs to minimize velocities so that suspended matter will precipitate before reaching a receiving body. Where this does not occur naturally techniques such as energy dissipators will be used to ensure that flows stay below the velocity of scour. The narrative above makes no mention of the golf course as part of the stormwater management system or as serving as a natural buffer. In fact, the Drainage Master Plan provided as Exhibit 2 to Jill Crew’s letter clearly shows drainage pipes running underneath Fairway #4 into the adjacent wetland. Then, according to c above the runoff will drain in a natural manner through the wetlands into the Bay. It should be noted that this type of stormwater treatment would not be allowed under current county regulations. CONCLUSION: All development projects are reviewed and permitted in accordance with rules and regulations in effect at the time of approval. Likewise, any new development or redevelopment must comply with rules and regulations in effect at the time of application. In sum, during the development order review process the proposed redevelopment of the golf course will be required to comply with current stormwater management regulations which are more stringent than those in effect at the time Resolution No. 90-41 was adopted. ISSUE 4: Cross Easements to Ensure Compliance with Master Development Plan in Magnolia Plantation. Staff analysis: The County is not a party to the aforementioned agreement and has no enforceable interest or standing with regard to said agreement. This is essentially a civil matter between two private parties. ISSUE 5: Common Scheme of Development. Jill Crew’s letter summarily asserts the following: 1) the golf course is clearly depicted on various recorded Magnolia Plantation subdivision plats; 2) the proposed redevelopment is not compatible with the surrounding community and the effect will be to increase density, traffic, and exert an additional burden on the existing infrastructure, streets, utilities, storm water management; 3) the amenities are an integral component of Magnolia Plantation and must not be altered at the whim of one parcel owner; and, 4) 2 Magnolia Plantation property owners have vested rights to ensure that the planned residential subdivision theme is not materially altered by anyone. Staff response: The instant proposed change is not the first change to the overall plan of development for Magnolia Plantation. Resolution Nos. 96-103 and 96-109, which was the result of an application filed by BBDC and EFI among others, resulted in opposition from the community and ultimately significant changes including the approval of higher density, multi-family development in the otherwise single-family Magnolia Plantation. Specific responses to the issues raised above are as follow. 1) It is not uncommon for preparers of plats to denote features such as highways, water bodies, railroad lines, public lands, etc. on a plat that are outside the actual legal description of the subdivided area to be recorded. Absent being included in the actual legal description or as some other specific dedication such as common area, park, etc. these types of denoted features are not considered part of the recorded subdivision. In fact, the plats provided as Exhibit 7 to the letter provide examples of such features as wildlife sanctuary, lake, other subdivisions, and wetlands in addition to the golf course that are not included as part of the recorded plat but shown as features nonetheless. 2) The applicant for the proposed change provided a compatibility report, traffic study, and stormwater analysis. It is staff opinion that these issues have been satisfactorily addressed. 3) There has been no substantial evidence provided that the golf course amenity is an integral component of the Magnolia Plantation community. The golf course has not been operated and maintained since 2013 and has since become overgrown with natural vegetation. The owners of the golf course indicate there are no plans to re-open it. Thus, the golf course will no longer be an amenity regardless of whether the proposed change is approved or not. 4) Florida common law provides that vested rights may be established if a property owner or developer has (1) in good faith reliance, (2) upon some act or omission of government, (3) made such a substantial change in position or has incurred such extensive obligations and expenses (4) that it would make it highly inequitable to interfere with the acquired right. There is no doubt that the owner of the golf course has a vested right under the DRI DO to develop and operate a golf course. It is not clear exactly what property rights the other owners of property in Magnolia Plantation might have since they do not own the golf course property, and there is no substantial evidence that any other property owners in Magnolia Plantation have relied upon the County or made such a substantial change in position or obligation so as to create a vested right. Conversely, Ch. 380 provides a legal process for a property owner to change an approved DRI DO such that the development rights associated with the DO can be changed. CONCLUSION: For the reasons stated above, the assertions raised above are without merit. ISSUE 6: BBR’s Inability to Operate a Profitable Golf Course Business in Not Sufficient Grounds. The instant application makes no reference to inability to make a profit from the golf course as grounds for the requested change. This was cited as a reason in a previous application which was withdrawn. ISSUE 7: Procedural History Concerning Randy Wise’s Attempts to Develop Magnolia Plantation Golf Course. Staff analysis: The application for proposed change pending before the County is for Fairway #4 only as described in the legal description attached thereto. There have been no other representations made either formally or informally of a phased development or overall plan of development for any property other than Fairway #4. 3 CONCLUSION: The County can only respond to the formal application pending before it. Even if there may be perceptions that development of other golf course fairways might occur in the future there is no substantive reason to indicate these are part of a common plan of development or phases of the same development. It is just as possible based on proximity and road frontages that each fairway would be developed as a discreet, independent development project. ISSUE 8: Randy Wise Failed To Disclose His Phased Development Conceptual Plans for Fairways 4, 6, 7, 9 and 1 as Required by the LDC. Staff analysis: See response to Issue 1 above. As shown on the “Development Plans” provided by Jill Crew Fairway #4 is geographically isolated from the other fairways depicted for future development. Fairway #4 is not contiguous to the others and could not share a common road network, stormwater management system, or other utilities. The site plan drawing attached to the application does not show phase lines, road stub outs or other obvious indicators of a phased or common plan of development. The County’s Land Development Code does not define phased development or common plan of development but does allow use of definitions found in