Title: Cups and Comp Plans - A Presentation to the Land Use and Water Planning Task Force - April 29, 1994
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Title: Cups and Comp Plans - A Presentation to the Land Use and Water Planning Task Force - April 29, 1994
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Cups and Comp Plans - A Presentation to the Land Use and Water Planning Task Force - April 29, 1994 (JDV Box 49)
General Note: Box 21, Folder 2 ( Land and Water Planning Task Force - 1994 - 1995 ), Item 36
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004399
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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CUPS
and
COMP PLANS


A Presentation to the

LAND USE AND WATER PLANNING
TASK FORCE

APRIL 29, 1994


by

THOMAS A. CLOUD
GRAY, HARRIS, ROBINSON
KIRSCHEMBAUM & PEEPLES, P.A.
Orlando, Florida







THE TASK FORCE'S
QUESTIONS:



* WHAT RESPONSIBILITY DO LOCAL
GOVERNMENTS HAVE IN
ESTABLISHING LAND USE
DESIGNATIONS CONSISTENT WITH
AVAILABILITY OF WATER?


* DOES A PROPERTY OWNER HAVE AN
EXPECTATION OF CONSUMPTIVE
USE BASED UPON THE PLAN'S LAND
USE DESIGNATION?









LOCAL GOVERNMENTS
ARE OBLIGATED AND
HAVE AN AFFIRMATIVE
DUTY TO ESTABLISH
LAND USE DESIGNATIONS
CONSISTENT WITH THE
AVAILABILITY OF WATER








* HOME RULE POWER TO
PROTECT THE PUBLIC
HEALTH, SAFETY, AND
WELFARE NOT
INCONSISTENT WITH
GENERAL LAW (
125.01(1), 166.041, F.S.;
ART. VIII, 1, FLA.
CONST.)








* GENERAL LAW DUTY TO

PLAN AND PROVIDE

SOLUTIONS FOR

PROBLEMS AND NEEDS

FOR:
POTABLE WATER
NATURAL GROUNDWATER
AQUIFER RECHARGE
CONSERVATION, USE &
PROTECTION OF NATURAL
RESOURCES ( 163.3177(6)(c), (d),
F.S.)







THE POWER AND DUTY TO
PLAN IS SUBJECT TO
THE WMDs' POWER TO
ALLOCATE CUPS


* 373.217, F.S. EXCLUSIVE
PREEMPTION OF REGULATION OF
CONSUMPTIVE USE OF WATER

* 163.3211, F.S. THE LEGISLATURE
SAID:

CONFLICTS WITH 163 AND OTHER
LAWS ARE RESOLVED IN FAVOR
MORE EXCESSIVE PROVISION

NO WITHDRAWAL OR
DIMINUTION OF POWERS OR
RESPONSIBILITIES OF OTHER
STATE AGENCIES

* PINELLAS COUNTY v. LAKE PADGETT
PINES










Ch. 373 WATER RESOURCES F.S. 1993

373.217 Superseded laws and regulations.-

(1) It is the intent of the Legislature to provide a means whereby reasonable
programs for the issuance of permits authorizing the consumptive use of
particular quantities of water may be authorized by the 1Department of
Environmental Regulation, subject to judicial review and also subject to review
by the Governor and Cabinet, sitting as the Land and Water Adjudicatory
Commission as provided in s. 373.114.
(2) It is the further intent of the Legislature that Part II of the Florida
Water Resources Act of 1972, as amended, as set forth in ss. 373.203-373.249,
shall provide the exclusive authority for requiring permits for the consumptive
use of water and for authorizing transportation thereof pursuant to s.
373.223(2).
(3) If any provision of Part II of the Florida Water Resources Act of 1972,
as amended, as set forth in ss. 373.203-373.249, is in conflict with any other
provision, limitation, or restriction which is now in effect under any law or
ordinance of this state or any political subdivision or municipality, or any rule
or regulation promulgated thereunder, Part II shall govern and control, and
such other law or ordinance of this state or any political subdivision or
municipality, or any rule or regulation promulgated thereunder, Part II shall
govern and control, and such other law or ordinance or Rule or regulation
promulgated thereunder shall be deemed superseded for the purpose of
regulating the consumptive use of water. However, this section shall not be
construed to supersede the provisions of the Florida Electrical Power Plan
Siting Act.
(4) Other than as provided in subsection (3) of this section, Part II of the
Florida Water Resources Act of 1972, as amended, preempts the regulation of
the consumptive use of water as defined in this act


History.--s. 9, ch. 76-243; s. 1, ch. 77-174.



1Note.--Section 3, ch. 93-213, transferred all existing legal
authorities and actions of the Department of Environmental
Regulation and the Department of Natural Resources to the
Department of Environmental Protection.








F.S. 1993 Ch. 163
INTERGOVERNMENTAL PROGRAMS


1633211 Conflict with other statutes.--Where this act may
be in conflict with any other provision or provisions of law
relating to local governments having authority to regulate the
development of land, the provisions of this act shall govern
unless the provisions of this act are met or exceeded by such
other provision or provisions of law relating to local
government, including land development regulations adopted
pursuant to chapter 125 or chapter 166. Nothing in this act
is intended to withdraw or diminish any legal powers or
responsibilities of state agencies or change any requirement
of existing law that local regulations comply with state
standards or rules.


History.--s. 17, ch. 75-257; s. 17, ch. 85-55; s. 25, ch. 87-224.









PINELLAS COUNTY
VS.
LAKE PADGETT PINES
333 So.2d 472
(Fla. 2d DCA 1976)

[8] Placing the project solely under Ch. 373 for environmental
supervision is fortified by the fact that under Ch. 380, the initial
decision as to whether to approve a development of regional impact
is placed in the hands of the local governmental body with an appeal
to the Florida Land and Water Adjudicatory Commission. It is
understandable that where, as here, a project is designed to furnish
water to a different county from that where the project is located,
the home county could well be reluctant to issue the required
approval under Ch. 380. This could be devastating to an urban
community with limited water resources. The Regional Water
Management Districts and the water supply authorities established
under Ch. 373 appear to be better structured to make such initial
determination on the basis of resolving water problems on a regional
rather than a local basis. With water being vital to human existence
and considering that water resource problems vary from one region
to another, it is desirable that these determinations be made on a
regional, rather than on a county or municipal level.
We think this consistent with the purpose clause of Ch. 373, which
makes clear the Legislature intended ". to accomplish the
conservation, protection, management, and control of the waters of
the state with sufficient flexibility and discretion to accomplish these
ends through delegation of appropriate powers to the various water
management districts."








PINELLAS COUNTY v. LAKE PADGETT PINES
City as, Fla.App., 333 So.2d 472


[9] We have not overlooked that Ch. 380 does involve water
in development of land. As mentioned above, the definitional
section of the Act in 380.031(6) provides that the word
"land" includes "earth, water ad air." There may well be
projects which will bring into play regulatory aspects of both
Chs. 373 and 380 concerning the supply of water. However,
we do not believe that in establishing Ch. 380, the Legislature
intended for local government to be in a position to control
the actions taken under Ch. 373, when those very actions are
vital to supplying water on a regional basis. The controversy
before us lends emphasis to this premise since the Cypress
Creek Project has been made necessary by existing
developments rather than by proposed developments which
undoubtedly require the "guidance of growth" referred to in
the policy declaration of Ch. 380.








DON'T FORGET THE
FOOTNOTE


7. We note that the home county is afforded protection, for
as amended by the legislature in 1974 (Ch. 74-114 8(5)),
Fla. Stat. 373.1961 now provides that a water management
district

"Shall not deprive, directly or indirectly, any county
wherein water is withdrawn of the prior right to the
reasonable and beneficial use of water which is
required to supply adequately the reasonable and
beneficial needs of the county or any of the
inhabitants or property owners therein."

















A PROPERTY OWNER HAS SOME
EXPECTATION OF CONSUMPTIVE USE
BASED UPON A LAND USE DESIGNATION
IN A LOCAL GOVERNMENT
COMPREHENSIVE PLAN







THE COURTS PROVIDE
SOME GUIDANCE


* THE OUTLAW CASE

* THE WINTER PARK/MOUNT DORA
CASES

* THE SNYDER CASE

* THE TEQUESTA CASE









Everett H. FISCHER and Tommy H.
Outlaw, as Trustees, Petitioners,
V.
The BOARD OF COUNTY COMMISSIONERS
OF ORANGE COUNTY, Florida, Respondent.
No. 84-987.
District Court of Appeal of Florida,
Fifth District.
Dec. 6, 1984.
Rehearing Denied Jan. 23, 1985
cert. denied 472 So.2d 1181
COWART, Judge.
This case involved certiorari review of an order of the circuit court denying
certiorari and leaving in effect a decision of The Board of Commissioners of
Orange County, Florida, denying petitioners special exception for the location
of a package sewer disposal plant on, and to serve, land owned by the
petitioners and zoned for residential use.
The land in question has been zoned R-3 by orange County for many years
and was so zoned when purchased by petitioners. The only uses permitted in
such multi-family dwelling district are residential uses.
On October 11, 1980, Orange County approved in concept the petitioners'
plans to develop thirty-one acres of land zoned R-3 known as the Reams Road
project, expressly finding that the proposed development was consistent with
the county's Growth Management Policy (GMP) and approved the use of an
on-site package sewer disposal plant that met all appropriate permitting
including approval by DER. On December 10, 1980, petitioners' preliminary
plans for a water and sewage disposal plant were approved by the Orange
County Sewer and Water Board. Twice the propriety of the R-3 zoning has
been reviewed and affirmed, the second time after litigation which judicially
confirmed the zoning. However, when petitioners requested a special exception
necessary under county zoning to locate the previously approved package plant
on the petitioners' R-3 land, to serve those lands, the special exception was
denied by the county. Petitioners' petition for certiorari in the circuit court
to review they county's order denying the special exception was also denied.
In this case petitioner seeks certiorari review of the circuit court order denying
relief.








FISCHER v. BOARD OF
COUNTY COMERS
Cite as 462 So.2d 480
(Fla.App. 5 Dist. 1984)


[1-3] The zoning of land for residential use constitutes a
legislative finding by the zoning authority that the lands are
fit and proper for that use and also constitutes a
governmental limitation on the use of those lands, limiting
the lawful use thereof to the uses permitted under that
zoning. A proper method of disposing of liquid waste is
absolutely essential to any use of land for residential
purposes. If lands which are legally limited by governmental
zoning to residential use are further prohibited by
governmental action from the use of any method of disposing
of liquid waste, such prohibition of any sewage disposal
method operates effectively to deny the owner from making
any beneficial use of his lands. If the regional supplier of
public utility services, which has the exclusive right, and the
concomitant duty, to provide sewer service to land zoned for
residential use, refuses or fails to serve that land, then the
appropriate governmental authority may decide which of the
remaining sewage disposal methods are most appropriate for
that land as zoned, but that authority cannot deny to the
owner all remaining methods of disposing of liquid waste
without thereby unconstitutionally denying that owner the
beneficial use of his lands.








CITY OF MT. DORA

V.
J.J. MOBILE HOMES,
579 So.2d 219 (Fla. 5 DCA 1991)

WHEN A PUBLIC SERVICE ENTITY, WHETHER
GOVERNMENTAL OR PRIVATE, HAS A PRIOR (EARLIER
ACQUIRED) LEGAL RIGHT TO PROVIDE SERVICES IN
A PARTICULAR TERRITORY BUT DOES NOT HAVE THE
PRESENT ABILITY TO PROPERLY AND EFFICIENTLY
MEET ITS DUTY TO DO SO, THE PUBLIC IS ENTITLED
TO BE SERVED BY SOME OTHER PUBLIC SERVICE
ENTITY WHICH DOES HAVE THE PRESENT ABILITY TO
PROVIDED THE NEEDED SERVICE ALTHOUGH THE
LEGAL CLAIM OF RIGHT OF THE SECOND ENTITY TO
PROVIDE SUCH SERVICES IS SECONDARY IN TIME
PRIORITY TO THE PRIOR LEGAL RIGHT OF THE
ENTITY WITHOUT THE ABILITY. CITY OF WINTER
PARK v. SOUTHERN STATES UTILITIES, 540 So.2d 178
(Fla. 5th DCA 1989).











JUDGE COWART'S VIEWS
HAVE BEEN MODIFIED BY
THE FLORIDA SUPREME
COURT IN THE SNYDER
CASE









BREVARD COUNTY

vs.

SNYDER

18 F.L.W. S 522


At this point, we depart from the rationale of the court below. In the first
place, the opinion overlooks the premise that the comprehensive plan is
intended to provide for the future use of land, which contemplates a gradual
and ordered growth. See City of Jacksonville Beach, 461 So.2d at 163, in which
the following statement from Marracci v. City of Scapoose, 552 P.2d 552, 553
(Or. Ct. App. 1976), was approved.

[A] comprehensive plan only establishes a long-range maximum
limit on the possible intensity of land use; a plan does not
simultaneously establish an immediate minimum limit on the
possible intensity of land use. The present use of land may, by
zoning ordinance, continue to be more limited than the future use
contemplated by the comprehensive plan.

Even where a denial of a zoning application would be inconsistent with the
plan, the local government should have the discretion to decide that the
maximum development density should not be allowed provided the
governmental body approves some development that is consistent with the plan
and the government's decision is supported by substantial, competent evidence.
Further, we cannot accept the proposition that once the land owner
demonstrates that the proposed use is consistent with the comprehensive plan,
he is presumptively entitled to this use unless the opposing governmental
agency proves by clear and convincing evidence that specifically stated public
necessity requires a more restricted use. We do not believe that a property
owner is necessarily entitled to relief by proving consistency when the board
action is also consistent with the plan.








Upon consideration, we hold that a
landowner seeking to rezone property has the
burden of proving that the proposal is
consistent with the comprehensive plan and
complies with all procedural requirements of
the zoning ordinance. At this point, the
burden shifts to the governmental board to
demonstrate that maintaining the existing
zoning classification with respect to the
property accomplishes a legitimate public
purpose. In effect, the landowners'
traditional remedies will be subsumed within
this rule, and the board will now have the
burden of showing that the refusal to rezone
the property is not arbitrary, discriminatory,
or unreasonable. If the board carries its
burden, a landowner's only remaining
recourse will be to demonstrate that the
existing zoning classification of the property
is confiscatory and thereby constitutes a
taking.








The VILLAGE OF TEQUESTA, etc.,
et al., Petitioners,
V.
JUPITER INLET CORPORATION,
etc., Respondent.
No. 52223.
Supreme Court of Florida.
May 3, 1979.
Rehearing Denied June 26, 1979.


4. The diversion of water from the shallow-water aquifer is
not a "taking" or an appropriation of property for public use
requiring condemnation proceeding unless there is a
resulting damage to the land itself, for example, a diversion
of water to the extent that the land becomes unsuitable for
cultivation, raising the level of flowing waters to the extent
that land is flooded, etc.;
5. The landowner does not have a constitutionally-protected
property right in the water beneath the property, requiring
compensation for the taking of the water when used for a
public purpose;
6. Just as legislation may limit the use of property for
certain purposes by zoning, so it is that the right to the use
of the water may also be limited or regulated.
7. The Water Resources Act now controls the use of water
and replaces the ad hoc judicial determination in water
management districts where consumptive use permitting is in
force.
8. Jupiter's remedy is only through proper application for
a permit under the Florida Water Resources Act.












SO THERE IS SOME
EXPECTATION... BUT
ONLY IF A CUP
HAS BEEN ISSUED


NOTWITHSTANDING SCPs, SRPPs,
LGCPs, ICEs, EARs, DCA, OR RPCs,

OR ANY OTHER JARGONESE
YOU PLEASE,

NOBODY HAS A GOD-GIVEN RIGHT,

TO A CUP!







WHAT DOES IT ALL
MEAN?


* REALITY CHECK

* DON'T BE OVERWHELMED
JARGON OR PROCESS


BY


* THE LAWS ARE ON THE BOOKS

* REMEMBER THE GOAL

AFFORDABLE, SAFE WATER TO ALL
WITHOUT HARM TO THE RESOURCE






Water tops

i wish list to

lawmakers
(0" I Money requests, fall close behind
-\.'. nOC By Tony Boylan
oV ,~,er 6< FLORIDA TODAY
VS.. C C c t e, If the Brevard County Commission could write to Santa
rB '- KIR- "l otr s laus asking for the end pf the South Brevard Water
o '' % Authority, it would.


A belated water shortage warning
The West Coast Regional Water Supply Au-
thority warns that the area faces a severe wa-
ter crisis.












o 'VT& ) OBSERVER
OS 00 -.:LY 17,000
3 Xc j CCter s litstu NEW SMYRNA BEACH.
90 t ye'SCO APR 13 1994
SVe1t T' -.o Assistant County Manager Dick
C o. Lt P \\ s e Klton told the committee the coun-
ve"t" ty and the water cooperative are

Water rationing would be next, warn officials
By NANETTE HOLLAND
Tribune Staff Writer
CLEARWATER -- A proposal to slash
pumping at area wellfields to the bare mini-
mum would lead to California-style water
rationing for 1 million people in Pinellas,
Pasco and Hillsborough counties, local wa.
ter officials said Friday.




South beaches favor water authority
y Dennis Thompson Jr.
FLORIDA TODAY
Representatives from beach commu-
t ies in South Brevard County said
sday they will ask state legislators to
keep a revamped South Brevard Water
Authority as the area's water overseer. '



Ios e,it\


ss- Titusville has eye
S,, \' o" e e
I~ on Volusia water
o1" IBy CAROL B. COLE
PALATKA One city held hos.
tage by another.


rCC.tv'
'C,"


Group forges

water plan
Bills would ax..
county authority
By Dennis Thompson ..'
FLORIDA TODAY .i
Brevard County's "Legislative
Delegation agreed Wednesday to
suppo.- legislation abolishing the


Titusville: Volusia water


BYMARK I.JOHNSON
Anoclat* editor
As Volusia County officials ex-
press concern about possible intru-
sion into .heir water supply by the
city of Titusville. Titsville officials


a last resort







CLOSING THOUGHTS


* COURTS FAVOR UTILITIES IN
PROVIDING WATER BECAUSE THEY
"FULFILL THE CRUCIAL AND
INDISPENSABLE GOVERNMENT
FUNCTION OF PROVIDING A FINITE
RESOURCE TO ALL FLORIDIANS."
DAVEY COMPRESSOR CO. v. CITY OF
DELRAY BEACH, 19 FLA. L. WEEKLY
S146 (Fla. 1994)

* AS WITH COMP PLANNING, BALANCE
BETWEEN STATE RULE AND HOME
RULE IS OUT OF WHACK

* THE MORE THINGS CHANGE, THE
MORE THEY STAY THE SAME








SEXTUS JULIUS FRONTINUS
(CIRCA 97 A.D.)


"The following method of cheating practiced by the water-men
is, further, unbearable; when a water-right is transferred to
a new owner, they will insert a new ajutage in the delivery
tank; the old one they leave in the tank and draw water from
it which they sell. Most especially, therefore, as I believe,
should the commissioner have in mind to stop this; for thus
he will maintain not only the measure of the water itself, but
also the good condition of the tank, which get to be leaky
when they are so often and unnecessarily tapped into.

This mode of gaining money, practiced by the water-men, is
also to be abolished: the one called 'tapping.' Far away, and
in all directions, run the pipes under the city pavement. I
discovered that these pipes were furnishing water by special
branches to all whom they passed and who had been able to
arrange for it; being bored for that purpose here and there,
by the so-called tappers; whence it came, that only small
quantity of water reached the places of public supply. The
amount of water gained in consequences of our abatement of
this evil, I measure by means of the fact that we have
gathered a large quantity of lead by the removal of that kind
of branch pipes." See Frontinus, The Water Supply of the
City of Rome, supra at pages 66 and 67.

MORE RULES WON'T
SOLVE THE PROBLEM




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