Title: Repeal of Rule 40E-4.301(1)(i) 1, 2 and portions of 3, Land Use Compatibility Requirements for Issuance of Permits
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 Material Information
Title: Repeal of Rule 40E-4.301(1)(i) 1, 2 and portions of 3, Land Use Compatibility Requirements for Issuance of Permits
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum To: John R. Wodraska, Executive Director From: Stephen A. Walker, Office of Counsel
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 42
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000871
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text




MEMORANDUM


TO: John R. Wodraska, Executive Director
FROM: Stephen A. Walker, Office of Counsel --
THROUGH: Richard Rogers, Director of Resource Control Departmento?7
DATE: November 25, 1987
SUBJECT: Repeal of Rule 40E-4.301(1)(i) 1, 2 and portions of 3, Land Use
Compatibility Requirements for Issuance of Permits.
RECOMMENDATION
Repeal Rule 40E-4.301(1)(i)1,2, and portions of 3, land use compatibility
requirements for issuance of surface water management permits, and adopt
related amendments to the Basis of Review for Surface Water Permit
Applications.
REASON FOR RULE REPEAL
Rule 40E-4.301(1)(i), Florida Administrative Code, requires an applicant to
give the District reasonable assurances that the surface water management
system will serve a proposed land use which is compatible with local
government's comprehensive plan and existing zoning. On February 2, 1987,
the Joint Administrative Procedures Committee of the Florida Legislative, in
accordance with the authority granted in Section 120.545(1), Florida
Statutes, objected to Rule 40E-4.301(1)(1) on the grounds that there was no
statutory authority for the compatibility requirement. The proposed repeal
is in response to the objection filed by the Joint Administrative Procedures
Committee.
SUMMARY OF THE RULE
The repeal of portions of Rule 40E-4.301(1)(i), Florida Administrative Code,
will eliminate the condition for issuance of surface water management permits
which requires that the proposed land use be compatible with the local
comprehensive plan and existing zoning. After the repeal, permit applicants
will be able to apply for and, if all other applicable conditions are met,
receive District surface water management permits without local approval of
the proposed land use. Amendments to the Basis of Review for Surface Water
Permit Applications recommends that applicants still obtain required local
land use approvals prior to submission of a permit application to the
District.
HISTORY OF THE DISTRICT RULE
On March 16, 1978, the District adopted as a condition for issuance of
surface water management permits that the land use served by the surface
water management system be compatible with local zoning. The rules were
amended in October 1982 to require for conceptual permits that the proposed


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John R. Wodraska, ExeA %ive Director
Page 2
November 25,1987


land use be compatible with local comprehensive plans. In July 1986, the
conditions for issuance were further amended to provide for the Coordinated
Agency Review (coordinated review of Developments of Regional Impact
applications and surface water management conceptual approval applications)
mandated by the 1985 amendments to Chapter 380, Florida Statutes (Florida
Environmental Land and Water Management Act.) The 1986 amendments required
the land use for DRI projects with a signed preliminary development agreement
to be compatible with the local government's comprehensive plan and existing
zoning. An exception to the compatibility requirement was included in the
1986 amendments for conceptual approvals which are filed concurrently with a
DRI application for development approval and a local government comprehensive
plan amendment. It was during the 1986 amendment process that the Joint
Administrative Procedures Committee, by letter dated June 12, 1986, informed
the District of the Committee's concerns regarding the statutory authority
for the compatibility provisions of Rule 40E-4.301, Florida Administrative
Code.
IMPACTS ON DISTRICT PROGRAMS
The repeal of the compatibility requirements of Rule 40E-4.301(1)(i), 1 2,
and 3 may increase the cost to the District for its regulatory program by
requiring additional communications between the District and local
governmental agencies and their respective permitting and planning processes.
It is expected that there will be an increase in: (1) requests from local
governments for notification of permit applications, (2) mailings of
sufficiency received letters and staff reports for projects which have not
yet received local zoning and comprehensive plan approvals, and (3) the
number of phone calls from local governments seeking clarification of
proposed District actions for locally non-approved projects.
In addition, two situations can occur which will increase the amount of staff
time spent reviewing permit applications since the proposed rule repeal
allows applicants to submit their applications prior to local approval.
First, if the surface water management system is changed after permit
issuance to comply with local government's comprehensive plan or zoning
decisions, the project must be resubmitted to the District for a permit
modification. Second, a review by the staff would turn out to be unnecessary
if the permitted project is never approved by local governments in
comprehensive plan or zoning decisions. At this time, the District is not
able to estimate the number of extra and unnecessary reviews.
The District will continue its local government assistance programs which
includes coordination of District activities with local governments.
The District has also hired a consultant to conduct a study of land use and
water management institutional relationships. One purpose of the study will
be to evaluate the impact of this rule repeal and recommend an appropriate
district regulatory program to support local growth management systems.





d.os






John R. Wodraska, Exe .ive Director
Page 3
November 25,1987


POLICY ISSUES INVOLVED IN THE RULE REPEAL
The proposed repeal is in response to the objection filed by the Joint
Administrative Procedures Committee on the grounds that there was no
statutory authority for the compatibility requirements. The Committee's
objections were not directed toward the wisdom or the desirability of the
compatibility provisions, but only to their legal basis. District has
received public comments discussing the policy issues involved in the
desirability of these provisions. These are discussed below.
PUBLIC INPUT
On October 15, 1987, a Public Workshop was held on the proposed rule at the
District offices in West Palm Beach. All of those present attended for
informational purposes only and no formal comments were presented for the
District's consideration although a number of clarifying questions were asked
and answered.
Written comments on the proposed rule were received from several local
governments and regional planning councils (See attachments). All of the
comments, except for one "no objection," opposed the proposed change and can
best be categorized by one or more of the following points:
*will undermine the effectiveness of local government
comprehensive plans by allowing permits to be issued which could
be inconsistent with them (See letters from Lee County, Dade
County, Coral Springs, Naples, Southwest Florida Regional
Planning Council Tequesta)
*will undermine the intent, if not the letter, of the goals and
policies contained in the State Comprehensive Plan and State
Water Use Plan, which promote coordinated land and resource
development and protection, intergovernmental coordination, and
consistency among agency policies at all levels of government
(See letters from Dade County, Southwest Florida Regional
Planning Council)
*will limit local government authority because of the state
requirement of local consistency with agency functional plans and
policies (See letters from Coral Springs, Southwest Florida
Regional Planning Council, Naples)
*will allow an applicant to unduly influence a local government
land use decision-making process (See letters from Tequesta, Lee
County, Naples)
BACKGROUND
Since 1978 the District rules have required the applicant to show that the
proposed development is consistent with local zoning and more recently local
comprehensive plans. In 1986, the District amended its rules to put into


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John R. Wodraska, Exer ,ive Director
Page 4
November 25,1987


effect concurrent conceptual agency review within the development-of-
regional-impact review process and also to allow permits for projects which
have a preliminary development agreement prior to receiving a local
government Development Order. During the amendment process, the Joint
Administrative Procedures Committee notified the District by letter dated
June 12, 1986, that the Committee was concerned with statutory authority of
the provisions of 40E-4.301(1)(1), Florida Administrative Code, which require
compatibility with local zoning and comprehensive plans.
The Joint Administrative Procedures Committee is a committee that is formed
by legislation in Chapter 11, Florida Statutes. The Committee is composed of
three senators and three representatives with a duty, among others, to review
both proposed rules and existing rules to make sure that there is statutory
authority for agencies such as the District to adopt and implement these
rules. The Committee has the duty and legal authority to object to the
District rules even though the District 's compatibility requirements have
been in existence in some form since 1978.
The Joint Administrative Procedures Committee objection to the compatibility
requirements was that there was no statutory authority for requiring
compatibility prior to permit issuance. There are two statutes which give
the District most of its authority for enacting rules dealing with surface
water management permitting, sections 373.413, and 416, Florida Statutes.
The statutory sections give the Governing Board authority to impose such
reasonable conditions as are necessary to assure that the proposed
development "will not be harmful to the water resources of the District"
prior to permit issuance. The key language which became the focus of the
Committee's objection was "will not be harmful to the water resources of the
District". The Committee's position was that there could be a proposed
project which did not have local approval and which was not harmful to the
water resources of the District, and therefore, the District did not have
authority to deny that permit solely on the basis that it was incompatible
with the local zoning or the local comprehensive plan.
While there were other issues involved, the District's main response to the
Committee's objection was that Sections 373.413 and 416, Florida Statutes,
did give the District authority to require compatibility with the local
planning processes in order to have the proper infrastructure to provide for
the surface water and storm water management systems and to properly maintain
these systems. Otherwise, the water resource would be affected. The
Committee did not agree with the District's position. The Committee also
stated that there was no statutory authority in other chapters of the Florida
Statutes which deal with growth management plans and state comprehensive
plans to provide a statutory authority for these compatibility requirements.
The Committee's position was that the local government has the authority and
duty to deny a development that is not in compliance with local zoning or
local comprehensive plans regardless of whether or not the applicant has a
District permit. In making these objections, the Committee was not passing
judgment on the wisdom or desirability of the compatibility requirements, but
was objecting only to the legal basis.






John R. Wodraska, Exe. ive Director
Page 5
November 25,1987


In February 1987, the Joint Administrative Committee formally objected to
Rule 40E-4.301(1)(i) and requested the Governing Board to repeal the rule.
In March, the Governing Board declined to repeal the rule until further
investigation, via consultant study, of the impact of the rule. In April,
the Committee again requested the Governing Board to repeal the rule since
the Committee's objection was that there was no statutory authority, and a
study on the wisdom of the rule would not change their objection. In May,
the Governing Board considered the Committee's request for the second time
and decided to initiate rule making proceedings to repeal the compatibility
requirements. The Governing Board also decided to continue with the study.
In November, the Governing Board approved the selection of a consultant to
begin the Land Use/Water Management Institutional Relationships Study. The
Committee has requested an update on the status of the repeal and has been
told that the repeal will be brought to the Board on December 11, 1987.
SAW/rsl




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