In Re: POLK COUNTY LAND DEVELOPMENT

REGULATIONS ADOPTED BY

POLK COUNTY ORDINANCE NOS. 09-055,

09-056, 09-058, 09-059, and 09-060.

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FINAL ORDER

The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to Sections 380.05(6), (11), Florida Statutes, (2008), approving Polk County Ordinances Nos. 09-055, 09-056, 09-058, 09-059, and 09-060.

FINDINGS OF FACT

1. The Green Swamp Area is a statutorily designated area of critical state concern, and Polk County is a local government within the Green Swamp Area.

2. On October 29, 2009, the Department received for review Polk County Ordinance Nos. 09-055, 09-056, 09-058, 09-059, and 09-060 which were adopted by the Polk County Board of County Commissioners on September 2, 2009, and September 16, 2009.

3. Proposed Ordinance No. 09-055 revises the term “Equipment Repair Major” to “Heavy Machine Equipment Sales and Service” and changes the use table which contain the original term; Ordinance No. 09-056 implements a comprehensive plan amendment which was approved by the Department in 2009 and adds the RHX designation to the Critical Area Resource Management Plan; Ordinance No. 09-058 amends the Land Development Regulations to amend Section 206, Accessory Uses, Section 209 Accessory Buildings and Chapter 10, Definitions; Ordinance No. 09-59 amends Table 4.8 in Chapter 4 of the Land Development Regulations; and Ordinance No. 09-060 amends the Land Development Regulations to create a new use know as Vehicle Recovery Service/Agency.

4. The Ordinances are consistent with the County’s Comprehensive Plan and further Policy 2.110-H1: Characteristics; Policy 2.102-A1: Compatibility; Policy 2.131-C2 Land Use Categories Established; Policy 2.131-C3 General Development Criteria; Policy 2.131-C4 Modified Land Use Categories; Policy 2.110-F1 Characteristics; Policy 2.110-H1 Characteristics; Policy 2.113-A4 Development Criteria and Policy 2.102-A1 Compatibility.

CONCLUSIONS OF LAW

5. The Department is required to approve or reject land development regulations that are enacted, amended or rescinded by any local government in the Green Swamp Area of Critical State Concern. Section 380.05(6) and (11), Florida Statutes (2008).

6. Polk County is a local government within the Green Swamp Area of Critical State Concern. Section 380.0551, Florida Statutes (2008) and Rule Chapter 28-26, Florida Administrative Code.

7. “Land development regulations” include local zoning, subdivision, building and other regulations controlling the development of land. Section 380.031(8), Florida Statutes (2008). The regulations adopted by the Ordinances are land development regulations.

8. All land development regulations enacted, amended or rescinded within an area of critical state concern must be consistent with the principles for guiding development for that area. Section 380.05(6), Florida Statutes; see Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff’d, 740 So. 2d 1209 (Fla. 3d DCA 1999). The principles for guiding development in the Green Swamp Area of Critical State Concern are set forth in Rule 28-26.003, Florida Administrative Code. (“Principles”).

9. Ordinance Nos. 09-055, 09-056, 09-058, 09-059, and 09-060 are consistent with the Principles in Rule 28-26.003, Florida Administrative Code and are not inconsistent with any one Principle.

WHEREFORE, IT IS ORDERED that Ordinance Nos. 09-055, 09-056, 09-058, 09-059, and 09-060 are found to be consistent with the Principles for Guiding Development of the Green Swamp Area of Critical State Concern, and are hereby APPROVED.

This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below.

DONE AND ORDERED in Tallahassee, Florida.

__________________________________

CHARLES GAUTHIER, AICP

Director, Division of Community Planning

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

NOTICE OF ADMINISTRATIVE RIGHTS

ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY’S ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING.

IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT’S ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED PURSUANT TO SECTIONS 120.569 AND 120.57(2), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT’S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION.

IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.

IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED, “PETITION FOR ADMINISTRATIVE PROCEEDINGS” WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK, IN THE DEPARTMENT’S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.

THE PETITION MUST MEET THE FILING REQUIREMENTS IN SUBSECTION 28-106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH SUBSECTION 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.

A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.

YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER.

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below by the method indicated this 22nd day of December, 2009.

____________________________

Paula Ford, Agency Clerk

By U.S. Mail:

Michael F. Craig, Esq.

Polk County Attorney

Drawer AT01

P. O. Box 9005

Bartow, FL 33831

Thomas Deardorff, Director

Growth Management Department

P. O. Box 9005, Drawer GM03

Bartow, FL 33831

Sam Thomas, Chairman

Board of County Commissioners

P. O. 9005, Drawer BC01

Bartow, FL 33831