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

that: Except for a development order rendered pursuant to subsection (22) or subsection (25), a proposed change to a development order which individually or cumulatively with any previous change is less than any numerical criterion contained in subparagraphs (b)1.-10. and does not exceed any other criterion, or which involves an extension of the buildout date of a development, or any phase thereof, of less than 5 years is not subject to the public hearing requirements of subparagraph (f)3., and is not subject to a determination pursuant to subparagraph (f)5. Subsection (e) also provides that: This subsection does not require the filing of a notice of proposed change but requires an application to the local government to amend the development order in accordance with the local government’s procedure for amendment of a development order. The Bluewater Bay DRI is not subject to either subsection (22) (Downtown Development Authorities) or subsection (25) (Areawide Development of Regional Impact). The applicant’s proposed amendment is individually and cumulatively less than any numerical criterion contained in subparagraphs (b)1.-10, and does not include a request to extend the buildout date. Therefore, this is an application to amend the DRI development order in accordance with Okaloosa County’s procedures for amendment of any development order issued by the County. The Applicant’s preceding assertions are addressed in pertinent part as follows. a. Notice of Proposed Change (NOPC). Staff agrees that 380.06(19)(e),1 does not require the filing of the NOPC form and attendant process. This subsection does require that notice of the application be provided to the regional planning council (West Florida Regional Planning Council) and the State Land Planning Agency (Department of Economic Opportunity). The application was submitted to these agencies by memo from the Applicant dated April 9, 2015. b. Determination of Substantial Deviation. Staff agrees that 380.06(19)(e),1 does not require a determination at a public hearing if the proposed change requires further development of regional impact review. Staff agrees that the proposed change does not constitute a substantial deviation from the approved DRI development order based upon enumerated criteria. This position is supported by letters from the state 4 land planning agency and the regional planning council both dated May 15, 2015 (Exhibits OC-7 and OC- 8) which conclude that the proposed change is not a substantial deviation that will create the likelihood of additional regional impact. c. Procedure for Amendment of the Development Order. Staff does not agree that the application should be amended in accordance with the County’s procedures for amendment of any development order issued by the County for the following reasons. The application on its face is a request to amend a specific, previously approved DRI development order. The procedure for amending or changing any (non-DRI) development order is specified at Subsection 1A.02.07 of the Land Development Code. The Applicant has stated by letter dated April 8, 2015 LDC Section 1A02.07 is not applicable to this amendment request. Subsection 380.06(19)(e) and the application clearly state in pertinent part This subsection does not require the filing of a notice of proposed change but requires an application to the local government to amend the development order in accordance with the local government’s procedures for amendment of a development order. This is interpreted by staff to mean procedures for amending the DRI development order, not any development order. The County has no written procedure for amending a DRI development order. The procedure has been established by past practice involving previously approved changes to the DRI development order. That practice has been to first amend the DRI development order and Master Development Map, if applicable, then review the approved change as a separate development order pursuant to the development review process specified in the Land Development Code. For purposes of this report, specific guidance for past practice is taken from those changes approved after the date Bay Point, Inc. v. Bay County, et. al., 903 So.2d 936, (2005) was decided. This includes Resolution Nos. 06-114, 08-188, and 09-220. Past practice in these cases involved the Board making findings consistent with Rule 73C-40.025, Fla. Admin. Code. 4. Required findings. Findings of fact found in previous amendment resolutions consistent with Rule 73C- 40.025, Fla. Admin. Code and the staff response to each are as follow. a. The development unreasonably interferes with the achievement of the objectives of an adopted state land development plan applicable to the area. Staff response: “State land development plan” means a comprehensive statewide plan or any portion thereof setting forth state land development policies. Such plan shall not have any legal effect until enacted by general law or the Legislature confers express rulemaking authority on the state land planning agency to adopt such plan by rule for specific application (ss. 380.031(17), Fla. Stat.). There is no such plan applicable to Okaloosa County. b. The development is consistent with the State Comprehensive Plan. Staff response: The State Comprehensive Plan is found at Chapter 187, Fla. Stat. The State Comprehensive Plan is intended to be a direction-setting document. Its policies may be implemented only to the extent that financial resources are provided pursuant to legislative appropriation or grants or appropriations of any other public or private entities. The plan does not create regulatory authority or authorize the adoption of agency rules, criteria, or standards not otherwise authorized by law (ss. 187.101, Fla. Stat.). The requested change is consistent with the State Comprehensive Plan. 5 c. The development is consistent with the local land development regulations and the adopted local comprehensive plan. Staff response: Analysis of consistency with the Land Development Code and Comprehensive Plan are as follow. Land Development Code (LDC) Specific consistency with the LDC will be evaluated as part of the development review process at the time detailed site plan and engineering drawings are submitted. No development order will be issued unless and until all applicable code requirements have been met. General consistency with the LDC can be assessed through review of Section 1A.02.04 “General Guidelines for Issuing Development Orders and Permits” and Chapter 2 “Zoning Regulations.” 1A.02.04 General Guidelines for Issuing Development Orders and Permits: The decision to approve, approve with conditions, or deny a development order or permit shall be based upon the following general guidelines. 1. The proposed development must be consistent with the Comprehensive Plan and applicable provisions and requirements of this Code. 2. The proposed development must not create the potential for a significant financial liability or unreasonable hardship on the County. 3. The proposed development must not create an unreasonable hazard or nuisance, or constitute a threat to the general public health, safety, and welfare. 4. The proposed development must comply with all other applicable laws, statutes, regulations, codes, or ordinances. 5. The proposed development must not jeopardize the current and long-term viability of military installations and flight corridors provided, however, that appropriate mitigation may be required to minimize negative impact. There shall be a rebuttable presumption that these guidelines have been met when all applicable provisions and requirements of this Code have been met for development or a type of development. The Property is within the Mixed Use – 1 zoning district which is described as follows. 2.07A.01 Mixed Use – 1: Shall be the same as described in Comprehensive Plan Future Land Use Element Policy 10.1, incorporated herein by reference. Residential density shall not exceed 25 dwelling units per acre. Nonresidential intensity shall not exceed 0.75 floor area ratio and 65% impervious surface coverage. The MU-1 district may be allowed either inside or outside the urban development area boundary. It is the opinion of staff that the requested change is consistent with both the general guidelines and the zoning district requirements. The Applicant is not requesting a change to the zoning district. Comprehensive Plan Guidelines for determining whether a development order is consistent with the Comprehensive Plan are found in the plan Administration Element, Policy 1.7 and the staff response to each is as follows. 6 1.7 Relationship to development orders: Section 163.3194, Florida Statutes requires that any development order issued by a local government must be consistent with the adopted comprehensive plan. A development order shall be considered consistent with this Plan if the land uses, densities or intensities, capacity or size, timing, and other aspects of the development are compatible with and further the objectives, policies, land uses, densities or intensities, prescribed in this Plan. When making determinations regarding whether or not a development or a development order is consistent with this Plan the following guidelines shall be considered. 1.7.1 Land uses: The land use associated with a development or development order shall be deemed consistent with this Plan when the type of land use to be developed (i.e. residential, commercial, etc.) is allowed in the proper land use category specified in the Future Land Use Element and is located within the proper land use designation as shown on the Future Land Use Map; The Property is located within the Mixed Use – 1 FLUM (MU-1) category described in the Future Land use Element, Policy 10.1, Table 1 as follows. The Applicant is not requesting a change to the FLUM designation. Purpose: The purpose of the MU-1 category is to provide areas for Developments of Regional Impact pursuant to Section 380.06, Fla. Stat. Location/Designation Criteria: Existing DRI areas; proposed DRI areas; the DRI category may be located either inside or outside the urban development boundary. Allowable Uses: Residential, commercial, institutional, industrial, recreation, or any combination thereof to be determined by an approved DRI development order. Allowable Density: No more than twenty-five (25) dwelling units per acre. Allowable Intensity: Nonresidential intensity shall not exceed a floor area ratio of 0.75 and an impervious surface coverage of 65%. Staff response: The requested M/L is a residential use that is included within the DRI DO and shown on the Master Development Map. The requested change to M/L residential use is an allowed use in the MU-1 category. The requested change is consistent with this criterion. 1.7.2 Densities or intensities: The density or intensity of a development or development order shall be deemed consistent with this Plan when the proposed density or intensity of use is equal to or less than the allowed density or intensity specified in the Future Land Use Element for the type of development allowed in each land use category. Staff response: The MU-1 category allows a residential density up to 25 dwelling units per acre. The requested M/L on the Master Development Map denotes 4.0 dwelling units per acre. The requested change is consistent with this criterion. 1.7.3 Capacity, size, or timing: The capacity, size, or timing of a development or development order shall be deemed consistent with this Plan when: 1. Public facilities and services are adequate and available to serve the proposed development concurrent with the impact or demand that will be created by the proposed development; 2. The impact of the