A SPECIAL MEETING OF THE BOARD OF COUNTY COMMISSIONERS
comprehensive plan workshop
MAY 7, 2009
The Lake County Board of County Commissioners met in special session on Tuesday, May 7, 2009 at 1:00 p.m., in the Board of County Commissioners’ Meeting Room, Lake County Administration Building, Tavares, Florida, for a Workshop on the Lake County Comprehensive Plan. Commissioners present at the meeting were: Welton G. Cadwell, Chairman; Jennifer Hill, Vice Chairman; Jimmy Conner; Elaine Renick; and Linda Stewart. Others present were: Sanford A. “Sandy” Minkoff, County Attorney; Erin Hartigan, Assistant County Attorney; Cindy Hall, County Manager; Barbara F. Lehman, Chief Deputy Clerk, County Finance; and Ellie McDonald, Deputy Clerk.
Commr. Cadwell announced that the Florida Association of Counties (FAC) would be holding their yearly tour at various government offices to provide updates from the Session and that they would be at the Sumter County Government Offices in Bushnell on Wednesday at 2:00 p.m.
INTRODUCTION - comprehensive plan
Ms. Amye King, Growth Management Director, addressed the Board and presented a brief introduction to the Workshop. She stated that the Comprehensive Plan before the Board today represents many years of hard work by the Local Planning Agency (LPA) and by staff, noting that numerous public meetings were held in this building and throughout the County. She explained that the major foundation highpoints of the Plan consist of: Protection of Open Space; Direction of Growth Urban Centers; Directed Densities to the Cities and Existing Urban Areas; Providing for Mixed Uses that allow for Clustering; Providing for Specific Lands for Industrial and Commerce Developments; and Providing for Specific Policies to Identify and Enhance Special Communities such as Mt. Plymouth/Sorrento, Ferndale, Sunnyside and others; and Protection of Water Resources such as springs, rivers, lakes and high recharge areas. She commented that the Staff Report was compiled not only by Growth Management, but also all departments of the County staff, and where appropriate there were responses and options for Board consideration. The first response is generally the preferred recommendation of staff by way of consensus.
Commr. Cadwell stated that during a conversation with Ms. King she had remarked that the Plan as a whole was good and that any changes staff offered at this point did not change the tenor of the Plan. He informed the Board that if they disagreed with any staff recommendations they should be noticed and discussed; otherwise they would go with staff recommendations.
Commr. Renick stated that the default was to go to staff recommendations not to the LPA.
Commr. Stewart commented that if they agree with the LPA it needs to be called to everyone’s attention.
county attorney’s comments
Items 1 and 2 - Requirements for Dedication of Easements and Prohibitions on Filling Wetlands
Mr. Sandy Minkoff, County Attorney, expressed his appreciation to Mr. Brian Sheahan, Planning and Community Design Director, Growth Management Department, for placing his office first on the Agenda. He introduced Ms. Erin Hartigan, Assistant County Attorney, who has both a planning and legal background. He mentioned that they had met several times with Mr. Sheahan and Mr. Ian McDonald, Chief Planner, Planning and Community Design, Growth Management Department. He commented that the Board would observe throughout the staff comments that their office agreed with or discussed same with them. He explained that there were a few important legal issues they would like to present to the Board. He noted that he and Mr. Sheahan were watching the legislation passed by the Legislature recently and commented that additional changes to the Plan would be required should all those Bills be signed by the Governor. He stated, however, that most of them were not significant, particularly for the unincorporated County, and it was his opinion that they would not change anything in the Plan; however, there were several references to the Housing Plan, Senate Bill 360, and others. He explained that if other changes were needed they would be presented to the Board with the statutory reference. He pointed out that the first two Comments on the Staff Report were almost identical. He stated that in cases where there was a required dedication or a complete prohibition of someone being able to use their property they should insert the language “to the extent allowed by the law” in order to avoid getting into constitutional takings claim such as in the Nollan and Dolan cases, and the Burt Harris Claim under Florida Statutes. He commented that these two items were intended not to require the dedication or prohibition to use the property. Constitutionally, before they can require dedication or prohibition to use the property there has to be an individualized determination that the impact of the development justifies requiring the taking of the property.
The Chairman asked if anyone had problems with Items 1 and 2. There was no comment from any Board member.
Item 3 - CUP Requirement for Resource Extraction, Including Bottling Operations
Mr. Minkoff stated that they did not recommend a change in Item 3, but that the Board may like to discuss this item. He mentioned that the Board was aware of the recent Marion County case in which the original decision was in their favor; however, on rehearing the case the court wrote a decision that was unfavorable for them. He called their attention to the fact that if they require a Conditional Use Permit (CUP) for a water extraction, water reasons under current law would not be enough to deny it. He commented for example, that they were successful a few years ago when a landowner requested a water bottling plant in Astatula and the Board required them to obtain a CUP because it was zoned agriculture. In that instance, the Board denied his CUP and the landowner sued the County three times. He stated that although the County won the lawsuit, it was not on the grounds of water usage, but rather on the grounds of truck traffic and incompatibility of use with the neighbors. He explained that if they require a CUP for water extraction with the current St. Johns position, they would need to have reasons other than the fact that it hurts the aquifer in order to deny it. He explained that their comment reflects what they were trying to point out to the Board.
Commr. Cadwell remarked that going through the CUP process would provide an opportunity to encourage them to conserve without getting into permitting the water.
Mr. Minkoff responded that was correct and it would certainly heighten the review of the CUP process. For this reason they did not recommend the language be removed, and simply wanted to bring it to the Board’s attention as they went through the Plan.
Commr. Renick remarked that she thought it was important to keep the language because the whole pre-emption issue was going to come to a head soon. She stated that there were actually people at the St. Johns that have brought that up, independent of the Board, by saying that was St. Johns’ purview.
It was a consensus of the Board to leave the language as written in Item 3.
Mr. Minkoff mentioned that some of the other water management districts allow more strict regulation by local government than does the District.
Commr. Hill asked if they were referring only to bottling operations.
Mr. Minkoff replied “no,” the Comprehensive Plan Policy required a CUP for any resource extractions. He commented that currently they require mining site plan approval which is equivalent to a CUP for any other type of extraction.
Commr. Renick stated that they were familiar with discussing the limitations of what has been typically called mining and they were now talking about mining for water as part of that; therefore it had to be called resource extraction.
Commr. Hill questioned whether or not it would limit them if someone came in for a CUP on another heavy industrial use that might be using quite a bit of water.
Commr. Renick commented that they know what the issue is right now, but there might be some type of use that would require ten times the water which they would want to hear. She explained that could be an issue if they were still in the same situation as they were at present. She asked Mr. Minkoff what he would add to that and stated that it was her opinion the language should remain as it stands.
Mr. Minkoff replied that the actual policy, which appears on page 90, provides that in addition to requiring compliance with all provisions of the Plan, these uses including, but not limited to, mining and bottling operations would require a conditional use permit. He explained that a restaurant that used a well would not fall into that category, but rather it would be someone who would actually be taking a significant amount of the resource whether it be sand, clay or water.
Item 4 - Annexation Agreements and Provision Concerning Interlocal Service Boundary Agreements
Mr. Minkoff opined that this item involves two different sections of the Plan and would stimulate some discussion. He commented that the Plan talked about requiring Annexation Agreements as noted on page 33, Policy 1-2.3.1 which states: “Within 12 months of the effective date of the Comprehensive Plan the County shall pursue Annexation Agreements with the Town of Montverde and Minneola in order to preserve the integrity of Ferndale . . ..” He stated that the problem with that section was that there was not anything called an Annexation Agreement; the previous Annexation Agreements were stricken by the courts. He explained that the Statutes now contain the Interlocal Service Boundary Agreement Act, a portion of which could be an Annexation Agreement. He commented that they suggested rather than using the words “Annexation Agreement” they could use “Binding Agreements Concerning Annexation” which was basically the same thing but provided more definition. He explained that the second issue on annexation was found on page 95 of the Land Use Plan. He stated that this section basically indicated that any time they would enter into an Interlocal Service Boundary Agreement that considered central water and sewer utilities; it would also require those in the municipality to agree on Future Land Use Area of the lands within the boundary. He mentioned that the issue raised there tries to narrow the Statute where the Interlocal Service Boundary Agreement Act was written to be far reaching and allowed governments to be creative. He stated that this would prohibit them from entering into any type of agreement with a municipality, if water or sewer were involved at all, unless they did the land use planning for the area involved. He commented that there may be some very narrow issues, for example, if they wanted to enter into an Interlocal Service Boundary Agreement with Umatilla and neither of them wants to do land use planning for those areas, it would be prohibited. He mentioned also that any Interlocal Service Boundary Agreement is required to (1) be negotiated by the elected people under the Statute; and (2) must be approved by the elected people. He commented that they did not see a reason to remove something that the Statute gave them in the Comprehensive Plan since the Board would ultimately make that decision.
Commr. Renick stated that she disagreed with the Annexation Agreement by calling them “Binding Agreements.” She commented that they knew this was an issue and the language change did not bother her, but the second part does. She explained that when they are talking about an Interlocal Service Boundary Agreement she stated she did not want them in any way to be limited. She explained that if the City and County want to get together and their only issue was fire service, then an Interlocal Service Boundary Agreement could be entered into for that without necessarily agreeing on land use. However, when water is the issue she explained that land use and water are so intricately tied to each other that they must both be included in the Agreement and that may make the Agreement fall apart. She explained that the language would need to remain as it is for future land and water uses, which are separate issues from every other type of Service Area Boundary Agreement. She went on to say that they may have a Service Boundary Agreement where the City and County want to discuss anything and everything, or perhaps just one issue, but she felt this ensured that if the discussion was water related it also would be related to land use as those two go together. She stated that she wanted to leave the LPA language on the Interlocal Service Boundary Agreement. She remarked that she had no issue with changing the language from Annexation Agreement to Binding Agreement. She explained that whenever they suggest that annexation is something other than the City’s first and foremost responsibility then she was uncomfortable calling it an Annexation Agreement. She commented that she knew others may disagree, but thought they still have the intent by calling it a Binding Agreement. She explained that her issue was with the Interlocal Service Boundary Agreement.
Commr. Cadwell stated that the only thing that concerned him in Mr. Minkoff’s rationale was that the cities could claim the provision was invalid and wanted to know what they would do in that instance. He asked if they simply would not negotiate with them or take them to court.
Mr. Minkoff responded that there were no real remedies, but what would happen is that they could not negotiate with them. He stated that fire protection would be a good example because one of the issues there was that the cities having water lines within the County refuse to place fire hydrants in the city. He explained that if they were negotiating fire with a City that has water lines throughout the unincorporated County, one of the provisions to consider was to put fire hydrants on the City’s water system, and this would be prohibited unless they agreed to the land use for the area where water lines already exist. He stated, therefore, that there were some unintended consequences and perhaps some middle ground might be to require that any time the County was asked to be part of it or the County asks the cities to be part of a session on Interlocal Service Boundary, if water and sewer is involved that they also make land use an issue. He commented, however, that to insist it be in the Agreement seems to tie the County’s hand when that would be unnecessary. He commented that perhaps they could get it on the table but not require that it actually be agreed to.
Commr. Renick stated that in reality some agreements may fall through. She explained that she understood Mr. Minkoff’s remarks, but asked that they consider the fact that if a City comes to the County with what they thought was a water issue, but in actuality it was a fire issue, then at that point the County would say that land use really was not an issue for the County with the City in this instance.
Mr. Minkoff stated he agreed, but the Comprehensive Plan provision as written would require the Agreement to deal with it agreeing on the future land use issues.
Commr. Renick stated that she thought if it was not an issue for the County that they could back off, but it would bring it to the table.
Commr. Stewart stated that land use is very important and that she needed to hear the consequences and tends to agree with Commr. Renick.
Commr. Cadwell stated he understood what they were trying to do, but the language did not say that both parties could decide that water was not an issue, it says you have to have that and land use done to enter into any Interlocal Agreement.
Commr. Renick opined that this was a serious item for everybody to digest and asked that they postpone this issue for further discussion later.
Commr. Cadwell agreed that it should be postponed.
Item 5. - Super Majority Requirement for Comprehensive Plan Amendments
Mr. Minkoff stated that at this time there was no recommendation for Item 5. He referred to page 100 of the proposed Plan in Policy 1-7.13.7 which requires that any Amendment to the Comprehensive Plan be approved by a super majority vote of the Board. He commented that the difficulty with this was that the Plan itself could be changed by a majority which could take out the provision requiring the super majority at any time.
Commr. Conner remarked that the language could remain as it was stating that three people could change the vote which would make it necessary to rewrite the super majority rule.
Commr. Renick commented that was true and that anything in the Comprehensive Plan could be changed in the future, but questioned whether they wanted to make it more difficult to make changes.
Commr. Cadwell stated that they get elected to do their job and some of the best votes ever cast on the Board were 3-2 and that their form of government works as it stands.
Commr. Conner stated that the other side of the super majority vote rule is that it gives control to the minority because if a rule states that a super majority vote is needed, then two people comprise a majority. He explained that 2 is a minority of 5 and in a 3-2 vote, that minority would be the majority. He commented that he was opposed to the super majority rule.
Commr. Stewart commented that the Comprehensive Plan is an important document that should not be changed on a whim and thought that if there was a super majority rule and it was voted to remove that provision, they would have to answer to the public.
Commr. Renick stated that they had previously had items other things have previously come where they would need a super majority.
Commr. Conner remarked that a super majority rule would be required when buying a piece of property when the appraisals were somewhat under the asking price. He commented in this case it is State law to have a super majority.
Commr. Hill remarked that it usually takes a super majority to move money.
Mr. Minkoff commented that their research found the areas where most super majorities were needed were in Charter Counties where the provision was placed in the Charter by the voters. Another example would be when the Legislature requires a 4/5 vote or vote of the electorate for gas tax. He stated therefore, the Legislature has imposed a higher rule and the Board could not change that and it also applies to a Charter County where the Board of County Commissioners could not change the Charter because it takes a vote of the public.
Commr. Conner directed his remarks to Commr. Stewart by stating that if this provision were left in the Plan it may give the appearance that it would be harder to change, but that would not be the case if there were three votes against it. In the future, all they have to do is change the rule and then cast the vote.
Commr. Stewart stated that they would still be responsible for passing the vote to make changes.
It was the consensus of the Board to stay with the “majority” rule.
Item 6. - DCA Approval of Green Swamp Regulations
Mr. Minkoff stated that there was a slight change to Item 6 noting that it was a policy found on page 58 of the Plan. He explained that the way the Plan is currently written it states that complying with any review or approval mechanism shall not become effective, amended, or modified and no action could be taken until approved by DCA pursuant to Chapter 380. He stated that they suggested it state that they would comply with Chapter 380 because they were not sure exactly what was written. He explained that it was an attempt to change the intent to require DCA’s approval on the areas of critical State concern in order to remove some of the language.
Commr. Renick stated that she thought the Comprehensive Plan was already saying the same thing as Chapter 380.
Mr. Minkoff stated that they were trying to comply with the Statute by simplifying the Plan because he was not sure they would have to approve everything under Chapter 380.05 in the area of the Green Swamp. He commented that there were certain limitations of approvals there.
Item 7. - Requirement for Private Investment in Infrastructure Improvements
Mr. Minkoff stated that the language which appears on page 97 of the Plan that they objected to was: “the County shall require private investment in infrastructure improvements,” mentioning schools, feeder roads, aerial fire apparatus, and right of way. He remarked that when they impose impact fees they were intended to take the place of these items. He explained that if they require both fire and fire truck impact fees then they would essentially be double-dipping for the same purpose. He commented that the only time they would require any type of additional private investment would be when the impact was as significant as a Development of Regional Impact (DRI) or something of that nature.
Commr. Cadwell stated that he wondered how it would affect the County’s impact fees since they are based on cost.
Mr. Minkoff stated that before the County had impact fees their Development Agreements often had to provide a fire station or fire truck, but they could not do both.
Commr. Renick stated that she understood the double-dipping argument, but after what happened in the Legislature with the impact fee issue she questioned whether they would be covered even once if the Plan does not contain that language.
Mr. Minkoff replied that he thought the language would be fine if they replaced the word “shall” with “may” and that would allow them to choose either an impact fee or to include in the Land Development Regulations (LDRs) that they would be required to pay for it. He stated that in the alternative, they could modify it to say “shall require investment or impact fees” but not both.
Commr. Renick stated that she recommended keeping the stronger language and they could always come back to it.
Commr. Cadwell stated that they would leave it as it stands now and revisit it later.
Commr. Stewart asked if they could keep the private investment language and state that the County shall require private investment or the use of impact fees.
Mr. Minkoff responded that would work.
Item 8. - Requirement that the County Object to Particular Annexations
Mr. Minkoff referred to Policy 1-7.10.3 on page 95 of the Plan and remarked that the language they wanted to change currently says: “If a municipality initiates an action to annex property that is not reasonably compact, contiguous or creates an enclave, the County shall object to the annexation and shall, when appropriate, legally challenge the annexation.” He commented that at the Board’s direction Growth Management and the County Attorney’s office were looking at annexations as they occurred and discussing them with the Board as they come forward. He noted, however, that they do not object to the occasional small annexations reviewed by everyone because they seem reasonable even though it might not meet the Statute requirement. He stated that he was concerned it would require them to be at the cities objecting and possibly initiating litigation which did not make sense and suggested replacing the word “shall” with “may.”
Commr. Renick opined that the word “shall” gives them an option and should not be changed. She commented that a situation actually came up where they would want the City to be able to annex even if they were not contiguous. She gave an example where they had a small City that was going to be able to get a grant for land acquisition for a park but they were not actually contiguous; however, if they were able to say that it was in their City limits they would be able to get this from the State at that time. She commented at that point it would be worked out with an Interlocal Service Area Boundary Agreement which would always permit the City and County to agree that they would allow a non-contiguous annexation. She commented that the words “when appropriate” were somewhat redundant so that language should be removed, but Mr. Minkoff wants to change the word “shall” to “may” and she recommended that it remain “shall.”
Commr. Stewart concurred that they need that language strong and that she had no objection to the second “shall” and “may when appropriate legally challenge the annexation.”
Mr. Minkoff used Groveland as an example because they had recently annexed a church property. He stated that it was a relatively small piece of property and that annexation caused a pocket to occur which probably did not meet the Statute, but looking at the church and the use they wanted to make of the property, there were no objections from the staff to oppose it. He stated that if they put that they “shall” go to the City Council and oppose and “shall” litigate, it would push them into a position they may not wish to be in. He commented that he was comfortable either way.
Commr. Renick stated that as a City Council member she observed that when a City wants to annex property and the County Attorney’s office advises them that this really cannot be done, the attitude has been from Planning staff on both sides that if the City wants to annex they would not challenge it. She commented that City Council members often do not realize that the particular annexation is illegal, and after 30 days it becomes legal. She explained that if “shall” remains in the language, the example that Mr. Minkoff gave was that they would challenge it. She stated that when the annexation is challenged by explaining it cannot be done, and they do not have a problem with it, then it is worked out through the Interlocal Service Area Boundary Agreement.
Commr. Cadwell wanted to know if the language “when appropriate” removes the requirement for them to sue and that this might be appropriate when they have no money for a lawsuit.
Commr. Stewart asked what the affect would be if they changed “shall” to “may.” Commr. Cadwell commented that because Commr. Renick did not want to change that either, he was trying to get some comfort level with “when appropriate” in the Comprehensive Plan so that they were not stating they would definitely sue.
Mr. Minkoff asked if it would ever be inappropriate to challenge it if he gave the Board an opinion and it violates the Statute.
Commr. Hill stated that she preferred using the word “may” there because it gives them the option, but if the word “shall” is used they would challenge almost all of them and they may not want to do that.
Commr. Cadwell stated that he was not as concerned about the first “shall” because generally they were going to do that anyway, but he did not want the second “shall.”
Commr. Renick stated it was her understanding that they were saying that they “shall” object to the annexation and then “may” legally challenge the annexation when appropriate. She explained that this would require monitoring all annexations. She commented that they would have to notify the City that it was not a legal annexation and then would have to decide whether or not to legally challenge it.
Mr. Minkoff stated that if they were changing what is done currently then they would automatically comment on annexations where they felt the Statute was not exactly being met. He commented that they would then bring it to the Board and if the Board felt it was serious enough they would take legal action if they went with the first “shall” and the second “may.”
Commr. Cadwell asked if they were comfortable changing to “may” and leaving “when appropriate” there.
It was a consensus of the Board to change the second “shall” to “may” and leave “when appropriate legally challenge the annexation there.”
miscellaneous questions on the staff report
Commr. Stewart asked if they had always included Settlement Agreements in the Comprehensive Plan and wondered if they could handle all settlements similar to Cagan’s Crossing.
Mr. Minkoff stated that he and Mr. Sheahan had discussed this issue. He commented that they had recently settled the Graybook case and part of that settlement required the Graybrooks to give the County 20 lots to be used for affordable housing. He explained that the intent of this Comment was that that note would come forward unto the new Comprehensive Plan so that property would be tied to giving them those 20 lots. He commented that in the Center Lake properties settlement there was a requirement that they use the Town of Montverde’s water system together with a density limitation which they wanted to carry through. He mentioned that the Hart property settlement required that it be developed inside Clermont and if it was residential development they wanted to carry through those notes. He stated that he felt that was what this Comment was referencing.
Uses Required for Conditional Use Permits
Commr. Cadwell referred to page 14 of the Staff Report and asked if they wanted to use the language regarding the typical uses included on the CUP.
Mr. Sheahan responded by stating that this was a policy decision. He explained that if they examined Comprehensive Plans throughout the State some jurisdictions were very particular in their uses as the LPA had recommended here; other jurisdictions were much more general by including commercial and industrial uses. He commented that other jurisdictions stick with general uses because they are allowed, but were specific when it comes to conditional uses. He remarked that this Comment was to call these uses to the attention of the Board and ask for direction.
Commr. Renick stated that she thought Commr. Cadwell wanted more generalized uses and she wanted the uses to be more specific.
Close of Workshop
Commr. Renick remarked that she was ready to bring the Workshop to a close since they have not had an opportunity to go much further into the Plan than this section due to Tuesday’s Agenda.
Commr. Cadwell stated that they could hold as many meetings as necessary to complete their review of the Plan and that they would need enough time between the meetings to allow for more review.
Ms. Cindy Hall, County Manager, stated that the next Workshop was scheduled for May 26, allowing them three weeks for review. She also commented that the packages for the Budget Workshop on Tuesday were ready and asked Board members to get one before leaving today’s meeting.
There being no further business to be brought to the attention of the Board, the meeting was adjourned at 1:50 p.m.
welton g. cadwell, chairman
NEIL KELLY, CLERK