Okaloosa County BOCC — January 19, 2016 — OC-1 Staff Analysis — reading text

EXHIBIT OC-1 MAGNOLIA FAIRWAY #4 STAFF ANALYSIS ISSUE To consider the adoption of a resolution amending Okaloosa County Development Order #77-1, as amended, pertaining to the Bluewater Bay Development of Regional Impact (DRI) Development Order (DO). The application to change the DRI DO is submitted by Jesse Rigby, Esq. representing Randy Wise Homes, Inc. (the “Applicant”) acting as authorized agent for the property owner Bluewater Bay Resort, LLC (Exhibit OC-2). The Applicant’s specific request is to change the DRI Master Development Map with regard to property described in the application as Fairway #4 of the Magnolia Golf Course (the “Property) to convert approximately 10.28 acres from the “Golf” designation to a combination of “M/L” designation (approximately 7 acres) and open space for the remainder of the Property. “Open space” is not a land use designation denoted on the Master Development Map. The revised map provided by the Applicant denotes “R” for Recreation. BACKGROUND In January, 2013 Bluewater Bay Resort, LLC submitted an NOPC to change the DRI DO as follows. Bluewater Bay Resort, LLC is proposing to change the approved Bluewater Bay DRI Development Order to convert +19.6 acres of land designated as golf (G) on the approved development master plan to residential use. Holes 4, 6, 7, and 9 of the Magnolia Course will be reduced from Par 4 and Par 5 holes to Par 3. Golf cart paths will be modified to maintain connectivity of this course through the newly created residential sections. Hole 4 encompasses +10.4 acres of which +7.11 acres will be converted from G designation on the Master Plan to M/L designation which allows residential uses at a density of 4 dwelling units per acre. This would permit a maximum of 28 dwelling units. The Par 5 Hole 4 would be converted into a Par 3 hole with the connecting cart path. Hole 9 encompasses +7.7 acres of which +5.0 acres will be converted from G designation on the Master Plan to M/L designation which allows residential uses at a density of 4 dwelling units per acre. This would permit a maximum of 20 dwelling units. This hole would be reduced from a Par 4 to a Par 3 Hole with cart path connectivity. Holes 6 and 7 encompass +19.7 acres of which +7.41 acres will be converted from G designation on the Master Plan to H designation which allows residential uses at a density of 13.5 dwelling units per acre. This would permit a maximum of 100 dwelling units. The Par 4 Hole 6 and Par 5 Hole 7 will both be changed to Par 3 holes with cart path connectivity. After considerable public comment Bluewater Bay Resort, LLC withdrew its NOPC. Nonetheless, the withdrawn NOPC represents an expression of intent on the part of Bluewater Bay Resort, LLC to sell and/or develop the Magnolia Golf Course. As highlighted above, the current Application was part of the overall plan to redevelop the golf course as presented in the January, 2013 NOPC 1  DEVELOPMENT OF REGIONAL IMPACT (DRI) Pursuant to Section 380.06(1), Florida Statutes, a development of regional impact is “any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety or welfare of citizens of more than one county.” A Development of Regional Impact is determined in part based on the size of the development. Numerical thresholds for different types of development are identified in Section 380.0651, Florida Statutes, and Rule 28-24, Florida Administrative Code. Review of DRI’s is undertaken by state agencies (primarily Department of Economic Opportunity), the regional planning council, and the local government of jurisdiction. Once a DRI has been approved by the local government, any change to the approved development order must be evaluated to determine if the proposed change is a “substantial deviation” from the approved DO. Criteria to determine whether a proposed change is a substantial deviation are found at s. 380.06(19), Florida Statutes. Because a DRI is a somewhat unique situation and is controlled by an approved DRI development order these have been designated with the distinctive future land use designation and corresponding zoning district of Mixed Use – 1 (MU-1). Allowable uses in the MU-1 designation are “residential, commercial, institutional, recreation, or any combination thereof to be determined by an approved DRI development order.” DISPOSITION As specified in in ss. 380.06(19)(e), Fla. Stat. …the local government shall either deny the application for amendment or adopt an amendment to the development order which approves the application with or without conditions. 1. Approve If the local government determines that the proposed change does not require further development-of- regional-impact review and is otherwise approved the local government shall issue an amendment to the development order incorporating the approved change and conditions of approval relating to the change (ss. 380.06(19)(f)6). 2. Deny The local government may also deny the proposed change based on matters relating to local issues, such as if the land on which the change is sought is plat restricted in a way that would be incompatible with the proposed change, and the local government does not wish to change the plat restriction as part of the proposed change (ss. 380.06(19)(f)5). If the application is denied the reasons for denial must be specified, as well as changes in the development proposal, if any, that would make it eligible to receive development approval. Any appeal of the decision made by the local government by the owner, the developer, or the state land planning agency shall be to the Land and Water Adjudicatory Commission (Governor & Cabinet) as prescribed in s. 380.07, Fla. Stat. STAFF ANALYSIS Staff analysis of The NOPC was concentrated on the determination of legal standing to submit the application, the extent of vested rights/entitlements, appropriate review procedure, and required findings. 2 1. Legal standing to submit application. Ms. Jill Crew, Esq. representing Mr. Raimund Herden and the Magnolia Plantation Property Ownner’s Association asserts in separate letters to Elliot Kampert, Growth Management Director (Exhibit OC-3), Greg Stewart, County Attorney (Exhibit OC-4), and John Hofstad, County Administrator (Exhibit OC-5) that neither the Applicant nor Bluewater Bay Resort, LLC has legal standing to request an amendment to the DRI DO. This issue was researched and settled at the time Bluewater Bay Resort, LLC submitted its January, 2013 NOPC. It is staff opinion now as was then that Bluewater Bay Resort, LLC, as a successor in interest to the Property, has the requisite standing to request the amendment, and may further designate the Applicant to act as its authorized agent in this matter. 2. Vested Rights/Entitlements. The Applicant makes several references in the application, a compatibility analysis (Exhibit OC-6), and correspondence to the vesting of the development authorized when the DRI was originally approved in 1977, and that the proposed change represents a re-allocation of previously approved development. The DRI development order has been amended, at the behest of successors in interest, some thirteen times since its original approval. Each time an amendment was approved that altered the type of development authorized on any given parcel within the DRI, the enabling resolution repealed and replaced the predecessor Master Development Map. The most recent amendment of this type occurred pursuant to Resolution 08-188, which adopted a new Master Development Map that clearly allocates the density and exact number of units to be allowed within each polygon shown on the Master Development Map. The discussion of Policy 3.1 presented on pages 9-11 of the compatibility analysis recognizes that the Master Development Map has assigned density for each polygon throughout the evolution of this the map also assigns a specific number of allowable units to each polygon. This is significant because it is the Master Development Map, not a broad category described in the ADA and amended development order, which establishes the actual number of residential units that can be designated on a specific parcel. The compatibility analysis states as follows “Based on those approved baseline impacts, Section 163.3167(5) vests approved DRIs from subsequent changes to comprehensive plans or land development regulations that would have the effect of limiting the ability to complete development that is approved as a DRI.” This runs contrary to conclusions reached in Bay Point, Inc. v Bay County, et al., 903 So. 2d 936, (2005) as follows in pertinent part. Once a DRI has been approved, the right to develop pursuant to the terms of the DRI vests. See ss. 163.3167(8), F.S. (2001). Vesting means development rights obtained through a previously approved DRI are not lost by subsequent changes in the law. It does not, and cannot, create entitlement to greater rights than those originally obtained. Accordingly, a proposed change jeopardizes vested rights because, by definition, the change seeks different development rights than those development rights originally approved” (emphasis added). By voluntarily assigning a cumulative total number of dwelling units to the various residential areas of the DRI that is less than the number approved in the original development order, the successors in interest have voluntarily given up the excess units. Therefore, while the County agrees that it would be inconsistent with Chapter 380, Florida Statutes, to require additional regional impact review or mitigation for the proposed change, it must also be recognized that this is the first time residential development has been assigned to the subject parcel, and that assignment of the units is not a re-allocation (i.e., shifting approved units from one parcel to another). The application states that the applicant’s request does not increase the number of residential dwelling units approved by the County for the overall DRI. While this may be a correct statement it does not mean that because there are approved but not built or assigned residential units there is a vested right or 3 entitlement to assign these units to areas on the Master Development Map not designated for residential use. The applicant’s vested right under the approved DRI development order Master Development Map is to develop “Golf.” Any other use of the Applicant’s property must be approved by amendment of the approved development order and map. There has also been considerable discussion between the Applicant, the County, and those in opposition regarding the number of “vested” residential units authorized by the various amendments to the DRI DO. While it would be to the benefit of all involved for the Board to specify the number of units authorized, it should be recognized that this number may be, and has been, adjusted up or down in response to requests for changes to the DRI DO. It is staff opinion that consistent with Bay Point any requested change to the Master Development Map that seeks different development rights than those already approved disturbs any previously created vested rights, and requires further approval by the Board of County Commissioners. 3. Review Procedure. The application states as follows. This application is submitted pursuant to the authorization contained in ss. 380.06(19)(e), Fla. Stat. (2014).Subparagraph (e)1. provides