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03-09-98 vCITY OF ATLANTIC BEACH COMMISSION MEETING- March 9, 1998 AGENDA Call to order Invocation and pledge to the flag 1.Approval of the minutes of the Regular Commission Meeting of February 23, 1998 2.Recognition of Visitors: A. Introduction of Colonel Rice (Mayor) B. Presentation of Proclamation declaring the month of April 1998 as Parliamentary Emphasis Month in Atlantic Beach(Mayor) 3.Unfinished Business: ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE ROUTINE BY THE CITY COMMISSION AND WILL BE ENACTED BY ONE MOTION IN THE FORM LISTED BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. SUPPORTING DOCUMENTATION AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS 4. Consent Agenda: A. Acknowledge receipt of monthly reports from Building, Code Enforcement and Recreation Departments, and Capital Improvements Report No. 16 (City Manager) B. Bid No. 9798-14: Award contract for Annual Janitorial Services for City Facilities to Duval Janitor Service at an annual cost of$32,364.00 (City Manager) C. Bid No. 9798-15: Award contract to Campbell's Lawn Service in the amount of 21,578.24 for annual lawn maintenance service at city facilities (City Manager) D. Bid No. 9798-18: Award contract to Luckin Construction, Inc. In the amount of 19,366.25 for rehabilitation of a home at 65 Edgar Street (City Manager) E. Acknowledge completion report of Oak Harbor Water and Sewer Improvements Project (City Manager) F.Acknowledge receipt of final Change Order (No. 6) for a reduction in costs of 85,152.01 in the Beach Avenue Water and sewer extension project; authorize the City Clerk to commence the sewer assessments at the previously approved rate of 34.053 per front foot(City Manager) G. Authorize submittal of the annual CDBG program application including proposed budget Page Two AGENDA March 9, 1998 5.Action on Resolutions: A. Resolution No. 98-8 (Mayor) A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA, ALLOWING NON-RESIDENTS OF THE CITY TO SERVE ON THE CULTURAL ARTS BOARD IF APPROVED BY A MAJORITY OF THE CITY COMMISSION, AND PROVIDING AN EFFECTIVE DATE B. Resolution No. 98-9 (Mayor) Resolution of Esteem- Hope Van Nortwick C. Resolution No. 98-10 (City Manager) A Resolution of the City of Atlantic Beach changing the authorized signers for city accounts D. Resolution No. 98-11 (City Manager) A Resolution of the City of Atlantic Beach Recognizing Older Worker Week 6.Action on Ordinances: A. Ordinance No. 90-98-165 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH AMENDING THE OFFICIAL ZONING MAP OF THE CITY TO INCLUDE THE AREA INCORPORATED INTO THE CITY OF ATLANTIC BEACH BY ANNEXATION; TO ESTABLISH ZONING CATEGORIES AND ZONING DISTRICT BOUNDARY LINES FOR THAT AREA; TO PROVIDE FOR SEVERABILITY; AND TO SET AN EFFECTIVE DATE 7.New Business: A. Discussion and related action in connection with construction of a new lifeguard station(City Manager) B. Discussion and possible action in connection with undertaking drainage improvements between Plaza and 11th Street as Phase 1 of the core city drainage project (Comm. Beaver) C. Discussion and possible action in connection with the current design of proposed improvements to the Mayport Road/Atlantic Boulevard intersection, which proposes to use city owned property for a retention pond (Mayor) D. Approve Management Plan and the Grant Award Agreement for Dutton Island and authorize the Mayor to execute the award agreement on behalf of the City of Atlantic Beach(Mayor) E. Board Appointment: (Mayor) Appointment to fill the unexpired term of Karen Summers on the Cultural Arts Board (Term expires April 30, 1999) Page Three AGENDA March 9, 1998 8. City Manager Reports and/or Correspondence: A. Report and possible action in connection with the traffic light in Town Center at the intersection of Atlantic Boulevard and Ocean Boulevard (City Manager) B. Status Report on construction of animal control facility(City Manager) 9.Reports and/or requests from City Commissioners, City Attorney and City Clerk A. Report relative to Quasi-Judicial proceedings (City Attorney) Adjournment If any person decides to appeal any decision made by the City Commission with respect to any matter considered at any meeting, such person may need a record of the proceedings,and,for such purpose,may need to ensure that a verbatim record of the proceedings is made,which record shall include the testimony and evidence upon which the appeal is to be based. Any person wishing to speak to the City Commission on any matter at this meeting should submit a request to the City Clerk prior to the meeting. For your convenience, forms for this purpose are available at the entrance to the Commission Chambers. In accordance with the Americans with Disabilities Act and Section 286.26, Florida Statutes, persons with disabilities needing special accommodation to participate in this meeting should contact the City Clerk by 5:00 PM,Friday,March 6, 1998. v O 0 T T E E MINUTES OF THE REGULAR MEETING OF THE ATLANTIC s s BEACH CITY COMMISSION HELD IN CITY HALL,800 SEMINOLE ROAD,AT 7:15 PM ON MONDAY, MARCH 9, 1998 PRESENT: Suzanne Shaughnessy, Mayor Richard Beaver Mike Borno John Meserve Theo Mitchelson, Commissioners M S O E AND: James Jarboe, City Manager T C Alan C. Jensen, City Attorney I O Y ONE N Maureen King, City Clerk COMMISSIONERS N D S 0 The meeting was called to oidei Uy Mayor Shauglumssy. The iiivuLa iuii way given by Brenda Edge of Roberts Mount Pisgah African Methodist Episcopal Church followed by the Pledge of Allegiance to the Flag. 1. Approval of the minutes of the Regular Meeting held February 23, 1998. BEAVER X BORNO X X Motion: Approve minutes of the Regular Meeting held MX MISON X February 23, 1998. SHAUGHNESSY X There being no additions or corrections to the minutes, the motion carried unanimously. 2.Recognition of Visitors: A. Introduction of Colonel Rice (Mayor) Mayor Shaughnessy introduced Colonel (Ret.)Terry L. Rice,the City's Independent Professional Engineering Consultant for the Core City Stormwater Improvements Project, and presented high points of his career as Commander, of the US Army Corps of Engineers, Jacksonville District, which covered the State of Florida, Puerto Rico and the US Virgin Islands. Mayor Shaughnessy indicated Colonel Rice held a Doctor of Philosophy Degree in Hydraulics and Hydrology, and while Chair of the Everglades Project,he was able to bring citizens and regulatory agencies together. Mayor Shaughnessy announced the Town Hall Meeting on March 10, 1998 and stated citizen input on the Core City Project would be received by Colonel Rice at that time. J.P. Marchioli of 414 Sherry Drive requested installation of horns on the city M S O E T C I O Y ONE N COMMISSIONERS N D S 0 Minutes-Page-2- March 9, 1998 water tower to be used as a warning device for approaching storms. B. Presentation of Proclamation Declaring the Month of April 1998 as Parliamentary Emphasis Month in Atlantic Beach (Mayor) Mayor Shaughnessy read the Proclamation in its entirety and asked the members of the First Coast Parliamentarians to come to the front of the room to be recognized and receive the framed proclamation. Sherry Strange accepted the proclamation on behalf of the organization, and presented a brief history of the use of parliamentary procedure. Ms. Strange thanked the Mayor and Commissioners for their support of the organization. 3. Unfinished Business: None. ALL MATTERS LISTED UNDER THE CONSENT AGENDA ARE CONSIDERED TO BE ROUTINE BY THE CITY COMMISSION AND WILL BE ENACTED BY ONE MOTION IN THE FORM LISTED BELOW. THERE WILL BE NO SEPARATE DISCUSSION OF THESE ITEMS. IF DISCUSSION IS DESIRED, THAT ITEM WILL BE REMOVED FROM THE CONSENT AGENDA AND WILL BE CONSIDERED SEPARATELY. SUPPORTING DOCUMENTATION AND STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS. 4. Consent Agenda: A. Acknowledge Receipt of Reports from Building, Code Enforcement and Recreation Departments, and Capital Improvements Report No. 16 (City Manager) B. Bid No. 9798-14 - Award Contract for Annual Janitorial Services for City Facilities to Duval Janitor Service at an Annual Cost of$32,364.00 (City Manager) C. Bid No. 9798-15 - Award Contract to Campbell's Lawn Service in the Amount of$21,578.24 for Annual Lawn Service at City Facilities (City Manager) M S O E T C I O Y ONE N COMMISSIONERS N D S 0 Minutcs Pagc -3- March lMarch9, 1998 D. Bid No. 9798-18 - Award Contract to Luckin Construction, Inc., in the Amount of$19,366.25 for Rehabilitation of a Home at 65 Edgar Street (City Manager) E. Acknowledge Completion Report of Oak Harbor Water and Sewer Improvements Project (City Manager) F. Acknowledge Receipt of Final Change Order (No. 6) for a Reduction in Costs of$85,152.01 in the Beach Avenue Water and Sewer Extension Project; Authorize the City Clerk to Commence the Sewer Assessments at the Previously Approved Rate of$34.053 Per Front Foot (City Manager) G. Authorize Submittal of the Annual CDBG Program Application, Including Proposed Budget Relative to Item 4-G, Community Development Director George Worley, passed out revised Proposed 1998/99 CDBG Budget sheets and explained the figures remained the same and only the format for the budget presentation had changed. Mayor Shaughnessy inquired if anyone wished to remove anything from the consent agenda for discussion , and nothing was removed from the consent agenda. BEAVER X Motion: Award bid contracts as recommended by Staff BORNO X X MESERVE X X and approve Consent Agenda items as presented.MITCHELSON X SHAUGHNESSY X There was no discussion and the motion carried unanimously. 5. Action on Resolutions: A. Resolution No. 98-8 (Mayor) A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA, ALLOWING NON-RESIDENTS OF THE CITY TO SERVE ON THE CULTURAL ARTS BOARD IF APPROVED BY A MAJORITY OF THE CITY COMMISSION, AND PROVIDING AN EFFECTIVE DATE. M S O E T C I O Y ONEN COMMISSIONERS N D S 0 Miiiuk7.3 Puge 1 March 9, 1998 BEAVER X BORNO X Motion: Adopt Resolution No. 98-8. MESERVE x x MITCHELSON X X Mayor Shaughnessy read the Resolution by title only and explained she SHAUGHNESSY x was sponsoring the Resolution to allow talented residents of the neighboring communities to particpate in cultural arts endeavors. She indicated she would not recommend the type of change to boards which had zoning authority. Commissioner Beaver stated he had a problem with going outside the community when there were Atlantic Beach residents who were willing to serve on the Board. Mayor Shaughnessy stated it was difficult to fill positions on the Cultural Arts Board*and three terms would expire at the end of April. She then requested that Commissioner Beaver submit the names of residents who would be willing to serve on the Cultural Arts Board. There being no further discussion, the motion carried unanimously. B. Resolution No. 98-9 (Mayor) Resolution of Esteem - Hope Van Nortwick BEAVER X X BORNO X X Motion: Adopt Resolution No. 98-9. ME SERVE x MITCHELSON X Mayor Shaughnessy read the Resolution in its entirety praising the work of SHAUGHNESSY X Ms. Van Nortwick on the Tree Conservation Board. Ms. Van Nortwick was not present to receive the Resolution. Commissioner Mitchelson stated he had worked with Ms. Van Nortwick on the Tree Conservation Board and commended her for her contribution to preserve the quality of life in Atlantic Beach. Commissioner Mitchelson requested that the Resolution be presented to Ms. Van Nortwick at the next Commission Meeting. There being no further discussion, the motion carried unanimously. C. Resolution No. 98-10 (City Manager) A Resolution of the City of Atlantic Beach , Florida, Changing the Authorized Signers for City Accounts Amendment 3-23-98 Insert "because First Night demands so many volunteers who might otherwise serve on the (Cultural Arts) Board, M S O E T C I 0 Y ONE N COMMISSIONERS N D S 0 Mii tutus Page -5- March 9, 1998 BEAVER X BORNO X X Motion: Adopt Resolution No. 98-10. MESERVE X X MITCHELSON X Mayor Shaughnessy read the Resolution by title only. SHAUGHNESSY X City Manager Jarboe explained that the Resolution listed those authorized as signers by position, rather than by the individual's name. It was explained that two signatures are required and the authorized signers are the City Clerk, City Manager and Finance Director. After a brief discussion of the change, the motion carried unanimously. D. Resolution No. 98-11 (City Manager) A Resolution of the City of Atlantic Beach, Florida Recognizing Older Worker Week BEAVER X BORNO X X Motion: Adopt Resolution No. 98-11. MESERVE X X MITCHELSON X Mayor Shaughnessy read the Resolution in its entirety. Myrtle Collins of SHAUGHNESSY X Green Thumb was unable to be present to receive the Resolution and Mayor Shaughnessy asked City Clerk King to forward the document to her. There was no discussion and the motion carried unanimously. 6. Action on Ordinances: A. Ordinance No. 90-98-165 AN ORDINANCE OF THE CITY OF ATLANTIC BEACH AMENDING THE OFFICIAL ZONING MAP OF THE CITY TO INCLUDE THE AREA INCORPORATED INTO THE CITY OF ATLANTIC BEACH BY ANNEXATION; TO ESTABLISH ZONING CATEGORIES AND ZONING DISTRICT BOUNDARY LINES FOR THAT AREA; TO PROVIDE FOR SEVERABILITY; AND TO SET AN EFFECTIVE DATE. BEAVER X BORNO X X Motion: Pass Ordinance No. 90-98-165 on first reading. MESERVE X X MITCHELSON X SHAUGHNESSY X Mayor Shaughnessy read the ordinance by title only and stated the Final Reading and Public Hearing would take place during the April 13, 1998 M S O E T C I O Y ONEN COMMISSIONERS N D S 0 Miirhtcs Page -6- March 9, 1998 Commission Meeting. City Manager Jarboe explained the boundaries of the area annexed and stated the ordinance would go to the Community Development Board for review and recommendations. The property is presently under the City of Jacksonville zoning. Jackson.ille** Valerie Britt of 378 Tilefish CourtJrepresentmg the members of the Pablo Point Civic Association, stated the organization opposed Commercial General Zoning for Johnston Island. Community Development Director Worley stated there would be two Public Hearings, the first on April 13, 1998 on Ordinance 90-98-165 and the second on April 27, 1998 as part of the DRI process, and citizen input will be received at those times. There being no further discussion, the motion carried unanimously. 7. New Business: A. Discussion and Related Action in Connection with Construction of a New Lifeguard Station (City Manager) BEAVER X Motion: Approve plans as recommended by Staff and have Staff BORNO X X MESERVE X X solicit bids for the construction of the building. MITCHELSON X SHAUGHNESSY X City Manager Jarboe stated that Public Safety Director Thompson has worked hard to bring about the construction of the new lifeguard building. Public review of the proposed building has taken place and the building has been relocated more to the middle of the right-of-way and the end of Ahern Street and it has been lowered to one story. Commissioner Mitchelson expressed concern for the durability of a single membrane roof, because of the number of claims his agency has handled.** William Morgan, the architect who designed the building, stated it would be an EPDM roof(the product is made by Firestone Tire/Rubber Company) with a ten year warranty which performs well. Commissioner Borno inquired as to the product's durability in a hurricane, and Mr. Morgan stated there would be no problems because product would adhere Amended 3-23-98 M S O E T C I O Y ONE N COMMISSIONERS N D S 0 Minutcs Pagc -7- March 9, 1998 to the structure and the building would be constructed in accordance with the Building Code. Claire Hart of 62 Ocean Boulevard expressed concern that the proposed building, if located in the middle of the right-of-way, would obstruct her view of the ocean and subsequently adversely affect her property value. Cliff Paine of 51 Beach Avenue agreed a new lifeguard station was needed, but stated that he lives on a very busy street end and sometimes his driveway has been blocked by buses or delivery trucks to the Sea Turtle. Mr. Paine distributed photographs illustrating the congestion in front of his house and indicated that emergency vehicles, fire trucks and handicapped parking also add to the mix. Mr. Paine inquired if the lifeguard station could be moved to a centrally located area in the city. Public Safety Director Thompson distributed photographs showing the limited ocean view for the Hart residence. In response to Mr. Paine's inquiry, Director Thompson stated the city did not own any centrally located land. Commissioner Meserve stated this project had been going on for a long time and the city needed to move forward. Public Safety Director Thompson stated that he had spoken with Neptune Beach and Hanna Park and they expressed no interest in combining services at this time. Mayor Shaughnessy expressed concern regarding large trucks making deliveries to the Sea Turtle blocking access to the new building. Director Thompson stated he would work with the Sea Turtle regarding the parking of buses and delivery trucks. Commissioner Borno concurred and stated delivery trucks should not be allowed to block Mr. Paine's driveway and requested that some type of street markings or signs be installed to prevent this. City Manager Jarboe stated that once the project has gone out to bid and the bids received, it will be brought back for final Commission approval. There being no further discussion, the motion carried unanimously. B. Discussion and Possible Action in Connection with Undertaking M S O E T C I 0 Y ONEN CONMESSIONERS N D S 0 Minutcs Page -8- March 9, 1998 Drainage Improvements Between Plaza and 11th Street as Phase I of the Core City Drainage Project (Commissioner Beaver) Motion: Discuss and take possible action concerning undertaking drainage improvements between Plaza and 11th Street as Phase I of the Core City Drainage Project. Commissioner Beaver stated he had asked for this item to be put on the agenda because several citizens had approached him concerning this. He then asked City Manager Jarboe to address the request. City Manager Jarboe stated that environmental agencies do not look favorably upon permitting a separate project within the whole project. He believed it sounds good, but it would be an exercise in futility to get them to prorate a permit, it would cost more to do this and no time would be saved. After a brief discussion, Commissioners Beaver and Borno withdrew their respective motion and second. C. Discussion and Possible Action in Connection with the Current Design of Proposed Improvements to the Mayport Road/Atlantic Boulevard Intersection,which Proposes to Use City Owned Property for a Retention Pond (Mayor) has had preliminary discussions with the it Mang about Mayor Shaughnessy stated that she-believed-tete tcxreattld-be possib e yuse o ie propertyygyr for soccer practice fields ** better utilized-as-a-soccer-field and stated she had been approached by several parents requesting the same. The Mayor further stated she wanted to ask the JTA to consider moving its proposed retention pond elsewhere. A brief discussion ensued concerning alternate sites for retention and/or soccer fields. A site on Regulus Drive, which the city owns, was discounted because it was not centrally located for Atlantic Beach citizens. City Manager Jarboe stated he had met with the JTA engineers last week concerning the project and expressed our concern that the property would be better utilized as a soccer field and they requested our input. City Manager Jarboe indicated he had suggested the possibility of selling the Begonia Street right-of-way for the retention pond, which could then be made a part of Tresca Park with possible walkways as part of the beautification process. City Manager Jarboe further reported the JTA said they would consider this and get back with us. If we want to be proactive, as the Mayor suggested, City Manager Jarboe stated the Commission needed to make some type of recommendation to the JTA. Amended 3-23-98 M S O E T C I O Y ONE N COMMIISSIONERS N D S 0 Minutes Page -9- March 9, 1998 Mayor Shaughnessy stated her goal was not to commit to soccer fields at this point, but she wanted to know the will of the Commission regarding the property- to either retain it or allow the JTA to use it for retention. Commissioner Beaver believed the city should retain the property, and the City Manager should work with the JTA to relocate the retention pond while considering the aesthetics of the project. Motion: Request the JTA to redesign the Atlantic BEAVER X Boulevard/Mayport Road Interchange to relocate the retention pond BORNO X X to allow the City of Atlantic Beach to retain the property bounded MESERVE x MITCHELSON X X on the west by Begonia Street, on the east by the Bedding Company, SHAUGHNESSY X on the north by First Street and the South by Atlantic Boulevard for park land. Commissioner Meserve recounted the discussion of the proposed retention ponds at the previous meeting and stated the Commission needed to direct staff to work with the JTA concerning the final design and placement of the retention pond(s) and keep the Commission informed on the progress. Commissioner Meserve further stated he was not in favor of the present JTA plan, and he felt the City needed to keep negotiations open ended to come up with a satisfactory plan. Considerable discussion ensued concerning retention pond location. As a point of clarification, City Manager Jarboe stated that staff had met with the engineers and a number of items were discussed, including beautification. JTA is negotiating with Carolyn Wood, a landscape architect, for beautification of the project and it was agreed she will come before the Commission before any beautification plans are finalized. Staff also expressed concern that the project really has no value to the citizens of Atlantic Beach. The flyover creates a pass through for the people who work at the base and live outside of Atlantic Beach, and at the same time creates a more severe traffic problem for the citizens of Atlantic Beach City Manager Jarboe assured the Commission that staff would continue to meet with the JTA and express their concerns. There being no further discussion, the motion carried unanimously. D. Approve Management Plan and the Grant Award Agreement for Dutton Island and Authorize the Mayor to Execute the Award BEAVER X Agreement on Behalf of the City of Atlantic Beach (Mayor)BORNO X X MESERVE X X Motion: Approve revised Management Plan and the Grant Award MITCHELSON X SHAUGHNESSY X Agreement and authorize the Mayor to execute the Award M S O E T C I 0 Y ONE N COMvIISSIONERS N D S 0 Minutes Page 10 March 9, 1998 Agreement on behalf of the City of Atlantic Beach as recommended in the memo from Community Development Director Worley dated March 4, 1998. (The memo is attached and made part of this official record as Attachment A). Mayor Shaughnessy asked Community Development Director Worley to explain this item. Commissioner Beaver inquired as to the size of boats which would be able to dock on the island and Community Development Director Worley stated the waterways leading to the island would support medium sized watercraft with the intent to make the areas around the island a "No Wake" zone at the very least, and preferably a "No Motorized Craft" zone. It was explained that this may be negotiable in the future. Commissioner Beaver then inquired concerning the cost of the utilities mentioned on page 13 of the agreement and asked if that included bringing them from Levy Road. Community Development Director Worley stated that if the island was developed for residential, that would be the case. However, the intent is to place a self contained restroom facility on the island, as far as water and sewer is concerned. At the present time no water or sewer lines run to the island and there would be no extension of utilities along Dutton Drive. City Manager Jarboe further explained that staff was asking the Commission to approve this now, so when the deal goes through, the city would be able to get grant funds from the state to reimburse the city half of the costs. There being no further discussion, the motion carried unanimously. E. Board Appointment (Mayor) Appointment to Fill the Unexpired Term of Karen Summers on the Cultural Arts Board (Term Expires April 30, 1999) Mayor Shaughnessy stated she would make the appointment at the next Commission Meeting to fill the unexpired term of Karen Summers on the Cultural Arts Board, and asked for Commissioner Beaver's input on a possible candidate. 8. City Manager Reports and/or Correspondence: A. Report and Possible Action in Connection with the Traffic Light in Town Center at the Intersection of Atlantic and Ocean Boulevards City Manager) M S O E T C I O Y ONEN COMMISSIONERS N D S 0 Minute3 Pugc 11 March 9, 1998 Mayor Shaughnessy reported one year ago, Mark Mahon of the JEA had suggested the city could remove the light to make the intersection look better and to save money, and this had prompted her request to place the item on the agenda. City Manager Jarboe referenced Public Safety Director Thompson's memo dated February 20, 1998, which is attached and made part of this official record as Attachment B. Public Safety Director Thompson stated he was not in favor of removing the light because it was needed for pedestrian safety, and stated consideration could be given to using a pole-type light rather than the type hanging over the intersection. City Manager Jarboe stated this type of light may be costly to install, but he would get estimates for the various types of pole lights. Mayor Shaughnessy requested that a preliminary proposal for a replacement light be presented at the next meeting. B. Status Report on Construction of Animal Control Facility (City Manager) City Manager Jarboe deferred to Public Safety Director Thompson who stated the walls were up, the roof on and the windows should have arrived last Friday or today and good progress was being made. It was reported the area is fenced and offers more security than the previous facility, and the Commission would be notified when they were ready to open for business. C. Report Concerning Meeting with JTA City Manager Jarboe reported that the following items/concerns were discussed with the JTA: Retention pond location Utility relocation Mitigation - for JTA use of Dutton Island Ingress/egress for existing businesses on Atlantic Boulevard Begonia Street and the problems there with the end treatment Corner at Champions - city is encouraging JTA to provide a bus pull-off on that site M S O E T C I O Y ONEN Minutes Pagc -12 COMMISSIONERS N D S 0 March 9, 1998 Traffic problems made worse by the flyover JTA and FDOT coordination of the project Beautification - urged them to expand Carolyn Woods' contract Ingress/egress at Post Office and other traffic issues Project divides the city and is not necessarily a good project for the citizens of Atlantic Beach with regard to increased traffic problems caused by the flyover D. Discussion with Inland Water Navigation District Chairman City Manager Jarboe reported that he had spoken to the Chairman of the Inland Water Navigation District with regard to obtaining funding for Dutton Island. E. Response to Alan Potter Letter Regarding the - Buccaneer WWTP Expansion The City Manager reported that Andy May, Engineer for the Buccaneer Project, had responded to Mr. Potter's concerns in a letter, a copy of which the Commission had received. It was reported that Mr. May would provide additional information to any Commissioner requesting it. 9. Reports and/or requests from City Commissioners, City Attorney and City Clerk A. Report Relative to Quasi-Judicial Proceedings (City Attorney) Mayor Shaughnessy stated that most zoning issues are decided at quasi-judicial hearings, and the upcoming DRI hearing concerning Johnston Island will have those characteristics. She further stated it was her goal in having the City Attorney brief the Commission on quasi-judicial proceedings, to make the Commission mistake proof on the procedure. City Attorney Jensen referenced the handouts concerning quasi-judicial procedure given each Commissioner prior to the meeting. The Snyder decision was briefly discussed, including the definition of"competent substantial evidence" and procedure for a quasi-judicial hearing. M S O E T C I 0 Y ONE N Minutc3 Page 11 COMMISSIONERS N D S 0 March 9, 1998 Mayor Shaughnessy stated that quasi-judicial procedure was very important and requested that City Attorney Jensen write a summary of what had been discussed. Commissioner Borno requested a written procedure for conducting a quasi-judicial hearing. City Attorney Jensen stated he would provide the requested information. Ex parte communication was also discussed and Commissioner Meserve inquired if Commission discussions with staff could be considered ex parte. City Attorney Jensen stated he would research this question and get back with the Commission as soon as possible. Commissioner Beaver Inquired as to the status of Bull Park and requested an update be placed on the next Commission agenda. Requested that no stop signs in the city be taken down without prior Commission approval. Commissioner Borno Asked that consideration be given to using the city property behind the BP station for a soccer field. Asked that the JTA re-evaluate the need for all of the retention ponds shown on the plans, and inquired if the runoff from the flyover could be piped into an existing sewer line. City Manager Jarboe stated it must be treated first. Inquired if the Levy Road project had been completed and asked that an update of the project be placed on the next agenda for Commission review. Commissioner Mitchelson Commented that new treatment rules apply to the flyover Reported he had met with Colonel Rice one-on-one and expressed concern for the tasking contained in his contract. He believed the contract should be amended to include a review of all the options - the entire scope of the project. M S O E T C I 0 Y ONE N Minutcg Pagc 14 COMMISSIONERS N D S 0 March 9, 1998 It was requested that a copy of the Minutes of the March 3, 1998 meeting and the contract be given each Commissioner. Commissioner Meserve With regard to Commissioner Mitchelson's comment, Commissioner Meserve stated Colonel Rice could not be expected to make a qualitative assessment of all the suggestions or it would take six months and cost additional money. City Manager Jarboe explained the contract and stated Colonel Rice would not be providing an in-depth engineering study to the city. Mayor Shaughnessy Stated that if necessary, a Special Called Meeting could be called to amend Colonel Rice's contract. Reported a JTA Public Hearing on the Atlantic Boulevard/Mayport Road Interchange would be held at Mayport Elementary School on March 26, 1998 at 6:00 p.m. Reported the City of Jacksonville Beach would hold an open house for the new City Hall at 10:00 a.m., March 19, 1998. Requested that a shade meeting be held in the near future so the negotiations concerning Dutton Island could be discussed freely. Announced the Commission Goal Setting Session with Hugh Green on Saturday, March 14, 1998 from 9:00 a.m. to noon. There being no further comments or business to come before the Commission, the meeting adjourned at 9:55 p.m. u K e Suzanne Shauglh, ssy Mayor/Presiding Officer ATTEST: G h.e1Lu_ Maur n King, CMC t City Clerk a ATTACHMENT A MARCH 9, 1998 COMMISSION MEETING STAFF REPORT AGENDA ITEM: Approval of revised Dutton Island Management Plan SUBMITTED BY: George Worley II, Community Development Director DATE: March 4, 1998 BACKGROUND: As a condition of the Preservation 2000 grant award for the purchase of Dutton Island, both the City of Jacksonville and the City of Atlantic Beach must approve a management plan for the development and continuing operation of the resulting conservation park. The management plan was prepared and reviewed by City of Jacksonville and City of Atlantic Beach staff. The plan was conceptually approved by the City of Atlantic Beach City Commission, but when it was forwarded to the City of Jacksonville an amendment was made to the plan by the City of Jacksonville City Council. The amendment removed the City of Jacksonville from the maintenance and operation of the completed park. The City of Jacksonville has, however, committed to assist in the development of the park and construction of the amenities noted in the management plan. Because the management plan was amended, it is necessary for the City of Atlantic Beach City Commission to approve the amendments. In a related matter the grant award agreement was forwarded from the Florida Communities Trust to the City of Jacksonville for the Mayors signature. This award agreement must be approved by the City of Atlantic Beach as well. The grant award agreement is the formal acceptance of the limitations imposed by the Florida Communities Trust on the acquisition and development of Dutton Island. These limitations are the same as those noted in the application for the grant, in the Conceptual Approval Agreement approved by the City Commission by Resolution 96- 15 adopted by the City Commission in 1996, and in the management plan itself. RECOMMENDATION: Staff recommends approval of both the amended Management Plan and the Grant Award Agreement with authorization for the Mayor to execute the award agreement on behalf of the City of Atlantic Beach. ATTACHMENTS: 1) Amended Management Plan 2) Grant Award Agreement A%REVIEWED BY CITY MANAGER: AGENDA ITEM NO. DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE MANAGEMENT PLAN Cities of Jacksonville and Atlantic Beachgl- FCT Project#95-058-P56 Table of Contents I.Introduction and General Information II. Purpose of the Project and Management III. Site Development Improvements and Access IV. Special Conditions: Jacksonville Port Authority, Florida Department of Environmental Protection Permit/Cert. Number 16-292767-2 and U.S. Army Corps of Engineers Permit Number 199403114 (IP-BL) requirements V. Key Management Activities VI. Cost Estimate and Funding VII. Priority Schedule VII. Monitoring VIII. Attachments A. Concept Site Plan B. Time Line C. Map showing relationship of Dutton Island to Kathryn Abbey Hanna Park, Donner Park and Tresca Intracoastal Waterway Preserve. I I I 1111 DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE MANAGEMENT PLAN IJ Table of Contents Mr, XI. Appendix A. Jacksonville Port Authority Permits and Correspondence B. Copy of Grant Award Agreement- (when available) C. Copy of Recorded Deed - (when available) D. Copy of Baseline Survey identifying all plant and animal species - (when available) E. Copy of Interlocal Agreement- (when available) F. Copy of Florida Department of State, Division of Historical Resources letter of June 3, 1997 r 1 f 2 u t DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE MANAGEMENT PLAN I. Introduction r The application is a partnership application between the Florida Communities Trust FCT) and the Cities of Atlantic Beach and Jacksonville. Since the application was filed and approved for funding, the Jacksonville Port Authority(JPA) has become a participant1-- un in preserving the Island. JPA's involvement and requirements in funding both the acquisition and proposed improvements will be discussed further in Section IV, Special Conditions. The Dutton Island Intracoastal Waterway Preserve (Dutton)property is located off the u eastern shore of the Intracoastal Waterway, in Atlantic Beach, Duval County, Florida. It is approximately 40 acres, and is surrounded by an intricate salt marsh ecosystem. Its land access is unique, controlled by a causeway, providing excellent security potential. Deep water access from the Intracoastal Waterway, and to both the St. Johns River and the Atlantic Ocean, is available to the island at several points. The project site combines pine flatwoods and live oak coastal hammock uplands, fresh water wetlands and estuarine marsh habitats. Development is moving towards the project with the current construction of a 140 home residential subdivision on Dutton Drive, approximately 4/10 mile away. The applicants believe Dutton Island's development is threatened, given Jacksonville's growth, the improved economy, the desirability of the Beaches area in general and limited waterfront property. Furthermore, Dutton Island was previously fully permitted and construction started and has vested development rights. II. Purpose The purposes for acquiring Dutton Island Intracoastal Waterway Preserve include: A. Protection of ecologically sensitive land and upland habitat B. Restoration and enhancement of water quality and marine habitat C. Passive recreational opportunities f D. Environmental education 3 iJ l 1 Due to the close spatial relationship between the Cities of Atlantic Beach, Jacksonville and Neptune Beach, the demand for recreation and preservation lands transcends municipal boundaries. The location of the subject easily lends itself to use by residents from neighboring communities where similar land uses are not available within a reasonable proximity. 111 Dutton Island Intracoastal Waterway Preserve combines and implements policies within both the Conservation/Coastal Management (CCM) and Recreation and Open Space ROS) Elements of the City of Jacksonville's 2010 Comprehensive Plan. Under the Conservation/Coastal Management Element, the City of Jacksonville has committed to environmentally sensitive land acquisition programs (CCM Policies: 2.8.2, 2.8.3, 3.1.2, 3.3.1, 3.3.2, 3.3.3, 11.1.1; and ROS Policies: 1.1.1, 1.2.1, 1.2.4, 2.1.7, 4.1.2, 4.2.4, 8.2.1). r Listed animal species and vegetative communities are considered under CCM Policies: 3.5.1, 3.5.4, 3.6.2, 3.7.1, 3.7.4, 3.7.5, 3.8.1, 3.8.3, 3.8.5, 3.8.6, 3.8.8, 10.1.4; and ROS Policies: 3.1.2, 3.1.3. Environmental education is covered under CCM Policies: 3.2.1, 3.2.3, 3.2.4; and ROS Policies: 1.3.1, 1.5.1. Impact on Wetlands is considered in CCM Policy 4.1.1.; and in Special Management Areas CCM Policies: 5.1.4 and 5.1.6. The Management Plan for Dutton is designed to address the following: a.preservation and enhancement of environmental resources b.restoration and enhancement of water quality and marine habitat c.protection of native vegetation and wildlife habitat d.passive recreation e.environmental education Future uses of the site will be limited to passive resource based recreational activities such as hiking trails,bird and wildlife observation areas,picnicking, primitive camping, fishing areas, swimming areas, canoe/crew launching(to trails connecting the neighboring Tresca Intracoastal Waterway Preserve and around the perimeter of Dutton Island and surrounding marshes), and interpretative/environmental education. 4 r ,J l: 71 Dutton will be managed only for the conservation, protection and enhancement of natural L. resources and outdoor recreation which is compatible with these goals. Once the site is acquired, a land use amendment for designation of the site to conservation will be submitted. This designation will be submitted to the Atlantic Beach City Commission, and subsequently forwarded to the Department of Community Affairs for approval. Signs, literature, and advertising will identify Dutton as being publicly owned, open to the public and operated as a natural resource conservation area, outdoor recreation area, or other appropriate descriptive language, and identify the site as having been purchased with funds from the Florida Communities Trust(FCT), Cities of Atlantic Beach and Jacksonville, and the Jacksonville Port Authority. III. SITE DEVELOPMENT,IMPROVEMENTS AND ACCESS The participants will request written approval from the FCT before undertaking any site I I alterations or physical improvements that are not addressed in the FCT approved Management Plan. Physical Improvements: Physical improvements will include replacing the culverts leading to the island, restoration of the 1.2 + acre freshwater pond (which will be further discussed in Section IV. Special Conditions, regarding JPA'a mitigation permit),public composting, restroom facilities approximating 500 square feet, nature trails approximating 1.25 miles,boardwalks approximating 900 linear feet,primitive camping and picnic areas, limited pervious vehicle parking area and environmental and project signage. I Ir.Existing improvements include an unimproved roadway system which will be utilized for the trail system wherever practicable, and a dock on the south west portion of the island, which is in need of repair. Although a final design has not been completed, the extent and approximate placement of most physical improvements is shown on the conceptual Master Site Plan(Attachment A). After permitting, boardwalk areas will be constructed as part of the educational trail system that meanders through low and wetland areas. It will be built to site conditions to avoid listed plant and animal species during construction; and, is approximately located111 on the conceptual Master Site Plan. The pervious parking area will encompass less than 15,000 square feet, and the primitive camping areas will encompass less than 20,000 square feet. Minimal underbrushing will be required for the camping area, no large trees l will be removed for either the parking or camping area, and special care will be taken to avoid listed plant or animal species during construction of the parking and camping area. Other improvements include the removal of exotic vegetation, controlled burning and replanting of roads with native vegetative species. 5 Results of the surveys for vegetative and wildlife habitat/species will be used for the final placement of improvements on the site. All necessary permits will be obtained from the appropriate agencies and evidence of same will be forwarded to the FCT. A minimum of one sign identifying the project site as being open to the public,purchased with funds from FCT, the Cities of Atlantic Beach and Jacksonville and the Jacksonville Port Authority, will be placed at the entrance to the preserve. All required permits will be applied for from the appropriate entities including the Cities of Atlantic Beach and Jacksonville, St. Johns River Water Management District, Florida Department of Environmental Protection, U.S. Army Corps of Engineers,plus the JPA permit conditions(See Section IV - Special Conditions). Access: Access to the site is by Dutton Drive, a causeway to the island. Limited pervious automobile parking will be provided as well as bicycle parking. Waterway access to the site will be at points located on the northern and southern tips of the island. See conceptual Master Site Plan Attachment A.) Access will be compatible with State and Federal construction standards, including the Americans with Disabilities Act. Easements: The only anticipated easement across the site is to bring electrical service to the island. It is to be granted to the Jacksonville Electric Authority, the regional electrical utility. Notice and copies of proposed easements shall be forwarded to the Florida Communities Trust for review at least sixty (60) days prior to adoption of such easements. IV. SPECIAL CONDITIONS Jacksonville Port Authority, Florida Department of Environmental Protection, Permit/Cert. Number 16-292767-2 and U.S. Army Corps of Engineers Permit Number 199403114(IP-BL) requirements: As a model of Public-Public Partnerships, the Jacksonville Port Authority, as part of its port expansion mitigation plan, has agreed to contribute$100,000 towards both the acquisition ($60,000) and improvements ($40,000) to the Preserve. The following paragraphs, from the U.S. Army Corps of Engineers permit letter, (see Jacksonville Port Authority correspondence in Appendix) are relevant to Dutton and are a requirement of JPA's permit: The permittee agrees to participate in a land acquisition program that would result in the purchase of Dutton Island within one year of the date of this permit. If Dutton Island is not purchased within one year from the date of this permit, the permittee shall acquire 2.5 permitted freshwater commercial mitigation credits or propose an equivalent mitigation plan to be approved by the Corps. 6 I As part of the Dutton Island mitigation, the permittee shall ensure that a mitigation/management plan will be submitted to the Florida Community Trust for review and approval within six(6) months following the acquisition of Dutton Island for the restoration of the approximately 1.2 acre freshwater pond. The freshwater system shall consist of a forested and/or scrub/shrub wetland with herbaceous wetlands and shallow open water. The mitigation/management plan shall include provisions for a city sponsored five year monitoring scheme and a contingency plan. The permittee shall ensure that the Dutton Island Management Plan, required by the Florida Community Trust,provides for the restoration of the 1.2 acre freshwater pond to be completed within a year from the approval of the mitigation/monitoring plan. The following paragraphs, from the Florida Department of Environmental permit letter, see Jacksonville Port Authority correspondence in Appendix) are relevant to Dutton and are a requirement of JPA's permit: The permittee agrees to participate and provide a minimum $60,000 to the land acquisition program that would result in the purchase of Dutton Island, Duval County within one (1) year of the issue date of this permit and provide a minimum of$40,000 for the restoration of the freshwater borrow pit/lake. In the event Dutton Island is not purchased within this one(1) year period, the permittee shall, at the end of the one(1)year period, purchase 2.5 acres of freshwater wetland from a permitted mitigation bank with a service area in Duval County or submit an equivalent mitigation plan to be approved by the Department. The above time frames may be extended solely at the discretion of the Department. The permittee shall submit written reports on a quarterly basis to the Department which provide the status of the Dutton Island acquisition. The reports shall be submitted until either Dutton Island is acquired, or the one (1) year period referenced in the above condition has been reached. The permittee shall submit proof that a minimum of$60,000 has been provided for the acquisition of Dutton Island. Proof shall be in the form of written verification from the Cities of Jacksonville and Atlantic Beach that the permittee has provided the funds for the acquisition of the island, and the date those funds were provided. The permittee shall submit the written verification within fourteen 14) days of receipt from the two cities. If Dutton Island is acquired, the permittee shall submit a signed and sealed survey of the island to the Department. 1 11111The permittee shall ensure that the Dutton Island Management Plan, required by the Florida Communities Trust(FCT), includes the restoration of the 1.2 acre approximate) freshwater borrow pit/lake. The freshwater system restoration shall consist of a forested and/or scrub/shrub wetland along a littoral shelf and an open water portion. A copy of the draft Dutton Island Management Plan shall be submitted to the Department within seven(7) days following submittal to FCT. The additional $40,000 shall be used solely for the freshwater system restoration activities. The permittee shall submit written proof(i.e. in the form of invoices, etc.) demonstrating that the funds were used for the restoration activity. The Dutton Island Managementgment Plan shall provide for completion of the restoration of the 1.2 acre freshwater borrow pit/lake within one(1) year from the date of approval of the management plan and issuance of all environmental permits required for the restoration activity. In the event the restoration is not Ir completed within this time period, the permittee shall submit an alternative mitigation plan. The Department, solely at its discretion, may extend the one (1) year time deadline. In V. KEY MANAGEMENT ACTIVITIES: Maintenance: Primary maintenance activity will include trash removal and site cleanup on a daily basis by the City of Atlantic Beach. Due to the trail and boardwalk system, trash removal will be conducted by maintenance staff using hand carts or similar wheeled containers. The proposed restroom facility will also require daily attention to maintain it in a clean and healthy condition. Parks staff will clean the structure daily. More intensive maintenance and repair of the facilities and boardwalk structures will be necessary on a semi-annual or annual basis depending upon the findings of regular inspections. Low maintenance, durable natural materials are preferred for the construction of the boardwalk, canoe launch docks, and restroom structure. Peripheral items such as benches,picnic tables and information kiosks may be more appropriately constructed of recycled plastic materials. It is believed that the life expectancy of this material exceeds natural materials in wet environments such as found on the subject, near the marshes and intracoastal waterway. To improve the physical condition of the site and provide interactive learning experience of local residents, and especially local youth, day tours are envisioned on the site which will include limited trash removal work to reinforce the importance of respecting and protecting the environment. These activities will be restricted to the less sensitive environment of the upland portion of the site. A number of local volunteers trained in forestry, recreation, and parks management are available to assist the full time departmental staff in the implementation of these activities. Security: With only one land access to the site, security of the project site will be 8 U L.f provided by a gate on Dutton Drive, regular day patrols by the Atlantic Beach Parks Department, and regular night patrols by the Atlantic Beach Police Department. The preserve will be closed after dark except for pre-arranged events and primitive camping. During the day it is not anticipated that an on-site manager will be necessary. The local telephone service provider will be approached to install at least one pay telephone at the proposed restroom facility. Staffing: Based upon the conservation and passive recreation character of the preserve, it is anticipated that coordinated management between the Jacksonville and Atlantic Beach Parks departments will be permitted within existing staffing. Volunteers, such as Friends of Dutton Island Preserve will also augment staffing. LLNatural Resource Protection: Protection of the islands natural resources will be accomplished by first conducting a baseline survey of the site to identify all plant and rr animal species, and locating sensitive habitat areas. Said baseline survey will be initiated within 90 days of acquisition; and, when completed will be added to the management plan. [See WV. Appendix(d)] Once identified, all listed species and habitats will be avoided during the installation of the trails and boardwalks. Said trails and boardwalks will be constructed with railings or fences, if necessary, to restrict the public to the trail system. In addition to the restricted trail design, the island is buffered from neighboring uplands by the nearly undisturbed and pristine Intracoastal Waterway marshes and waters. The coastal oak hammock,pine flatwood and saltmarsh communities will be preserved and appropriately managed to ensure their long term viability. A number of protected bird and animal species may inhabit the project site. Potential habitat areas are to be identified by site inspection prior to the final design of the trail system. The trail system design will avoid wetlands, thus reducing impacts on wading bird habitats. The most evident wading bird species observed on the project site include snowy egret, great blue heron, cattle egret, wood ibis, green heron, and wood stork. These species generally nest in the lower canopy of trees which grow along the edges of the marsh. The installation of the proposed amenities will be coordinated with the vegetative and wildlife surveys so as to minimize adverse impacts on nesting habitats. The marsh areas where these bird species feed will remain intact. No adverse impact is expected to be caused by the project. The final design plans, along with this Management Plan, will be submitted to the FCT and the Florida Game and Fresh Water Fish Commission (FGFWFC) for review and comment prior to bidding the project. Revisions suggested by the FGFWFC will be integrated into the design to the extent feasible. Follow-up contact with the FGFWFC will be maintained to ensure up-to-date regulations and design guidance specifications are available throughout the project development. The recipients shall be responsible for coordinating with the Department of Environmental Protection's Office of Protected Species Management for appropriate guidance, recommendations, and necessary permits to avoid impacts to the manatee. 9 110 Docking areas will be limited to one each on the northern and southern parts of the island; and, slow.speed, manatee awareness education signs will be posted from the Intracoastal Waterway and on the dock. In addition, the channel, restricted area and sea grass areas will be clearly identified with signage. 10.The project site will be monitored by the City of Jacksonville on an annual basis to determine if any adverse impacts have occurred to the listed species or the sensitive habitat areas identified during the initial survey. The causes of any degradation will be identified and corrective actions such as closing of trails and restoration work will be undertaken immediately upon any fording of adverse impact. Limiting direct access to the general public to designated trails and boardwalks will contribute to the preservation of the existing habitats and species. Such limited access also contributes to the restoration of impacted sites by allowing the areas to be isolated as necessary. Hydrology and stormwater quality at the project site will be monitored by the City of Atlantic Beach on an annual basis as part of the city's existing stormwater management program. With minimal impervious surface area there will be minor stormwater improvements, and all amenities will make use of natural materials wherever possible. A survey of the vegetative communities on the site was commissioned by the City of Jacksonville as a step in the grant application and design process. All survey information on listed plant and animal species as well as sensitive habitat locations on the site will be L forwarded to the Florida Natural Areas Inventory. Resource Restoration and Enhancement: Based upon findings of the baseline survey of listed plant and animal species on the project site, limited habitat restoration may be undertaken. Because the site is undeveloped and isolated, it is not expected that large areas in need of restoration will be identified. The envisioned trail system will include a self-guided interpretive tour through the project site identifying the varied habitat areas. It is the intent of the environmental interpretive tour to direct the interest generated by this information towards the enhancement of the site. As identified under the maintenance section above, the participation of youth groups in maintenance activities is seen as an educational tool, in introducing them to the natural environment. As an environmental enhancement tool, the removal of trash and debris from the site by volunteers will also aid in the enhancement of the site. The activities of such groups can be combined with restoration or enhancement projects to provide area youth with a well supervised, hands-on, learning activity. Additional restorative work will include the 1.2 acre freshwater lake restoration to be accomplished under the JPA's U.S. Army Corps of Engineers permit guidelines. Revegetation of trail roads and other disturbed areas within the project site will be accomplished during the initial stages of the park development. The scattered areas total approximately three acres and consist of unauthorized dump sites containing mostly household appliances and trash. The removal of this material will be completed during the site preparation work,prior to any construction of amenities. 10 Revegetation of the areas will follow immediately after the removal of the debris. The disturbed areas will be replanted with native plant species. This process will provide a fcontinuity of the surrounding vegetative communities into the disturbed areas. Some infestation by exotic vegetation on the project site is probably due to a past residential homesite. The removal of exotic vegetation will be accomplished concurrent with the site preparation work, and prior to construction of the amenities. Monitoring of exotic vegetation encroachment will be a part of the ongoing maintenance of the site. A Burn Plan for the pine flatwood portions of the site will be developed and initiated in coordination with the Division of Forestry and the Game and Fresh Water Fish Commission The wetlands restoration plan for the site shall be coordinated with the St. Johns River Water Management District, the Florida Department of Environmental Protection and the U.S. Army Corps of Engineers for the protection of surface water, ground water quality and hydrology. The combined restoration area of the site will approximate 18 acres including: JPA wetland mitigation, burn plan, removal of exotics,revegetation of trial roadways, culvert replacement, and removal of trash and debris. Educational Programs: The Cities of Atlantic Beach and Jacksonville Parks and Recreation Departments will sponsor environmental educational programs in cooperation with local elementary and junior high schools. Implementation will commence after initial improvements have been complemented, approximately 15 months after acquisition. The frequency will commence initially at a minimum of one per quarter, and build as the school system and community organizations become aware of the preserve and its educational programs; as there are 25 public and private schools within 15 miles of the site. The programs will also target at-risk youth and may be co-sponsored by local 1 service organizations such as the Donner Community Development Corporation, the Boys and Girls Clubs, YMCA, Boy& Girl Scouts, and numerous church organizations. The Juvenile Crime Mitigation programs, targeted at risk youth will commence within approximately six months of acquisition as part of the island's clean up program and will be continued as part of the on going maintenance of the preserve. The initial Juvenile Crime Mitigation program will be held during the summer months and be expanded to a minimum of quarterly programs. Atlantic Beaches' innovative "Peddle Pickers" program, whereby youths performing 40 hours of community service are allowed to pick a bicycle from the police department's inventory of abandoned and found bikes will be utilized. It is also anticipated that local Rotary Clubs through their sponsorship of Boy Scout programs, especially Mohawk Boy Scout troops, will assist in the preserve's clean-up and maintenance. Part of the preliminary design for the trail system includes educational kiosks where specific environmental issues or conditions are highlighted. These kiosks 1 11 l T will focus on both geographic localities as well as environmental issues. The project site contains several very good examples of the vegetative communities normally found in and adjacent to marshes, including oak hammock, pine flatwoods, and the marsh itself. These focal points will highlight vegetative and wildlife communities, and possible adverse effects impacts caused by human development. Learning to identify adverse impacts will assist the public in making informed decisions about the protection and conservation of sensitive environments along the Intracoastal Waterway. Archaeological and Historical Resource Protection: No archaeological or historic sites have been identified on the project site. The Division of Historical Resources of the Florida Department of State, has recommended [see Appendix (XI)(F)J that prior to any land clearing or ground disturbing activities, those area to be impacted be subjected to a cultural resources assessment survey to determine if any significant archaeological sites are present. This will be done and all provisions of Chapter 267, Florida Statutes, including Sections 267.061(2)(a) and 267.061(2)(b), will be met in identifying and protecting historical and archaeological sites discovered, if any. Coordination: The Parks and Recreation Departments of the Cities of Atlantic Beach and Jacksonville will coordinate the management of the preserve, through the nearby Kathryn Abbey Hanna Park and Tresca Preserve. It is hoped that bike paths will connect Dutton with Kathryn Abbey Hanna and Donner Parks, and Tresca Preserve; and, canoe trails will connect Dutton and Tresca Preserves. See map, VIII. Attachments (C), showing the relationship of these parks. Because Dutton is an island, marshes separate it from adjoining upland land owners. The n City of Atlantic Beach hopes to coordinate with upland landowners a scenic easement on Dutton Road, to preserve the pristine approach of mature oaks on both sides of the road leading to the preserve. The unique aspects of the JPA's mitigation permit conditions requires additional coordination with other agencies on required permits including Florida Department of lir Environmental Protection, St. Johns River Water Management District, U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service. VI. Cost Estimates and Funding Sources: The estimated costs of the improvements to the project site are based on similar work conducted in other city projects. The estimated costs are as follows: me 1.2 acre freshwater lake restoration 40,000 Culvert replacement 20,000 i i 12 Trail and boardwalk system 25,000 Primitive camping and picnic area 10,000 Restroom facility 17,000 Site preparation, utilities, permitting and environmental 123,000 interpretive signage Total estimated cost 235,000 Strong efforts will be made to acquire grant funding from various agencies to offset the financial impact, including the Florida Inland Navigation District. Due to the commitment to a low maintenance, conservation/passive recreation preserve, the City of Atlantic Beach will be able to provide the expected level of maintenance with minimal staff in the Parks and Recreation department. Volunteers will present educational programs. Schools participation in environmental programs at the project site will also be encouraged through educational grants. The cities maintain close relations with several youth oriented organizations such as the Boy Scouts and the Y.M.C.A., who will be recruited to participate in these education programs, especially those targeting at-risk youth. VI. Priority Schedule: To meet JPA permit requirements, immediate priorities will be the culvert replacement and the freshwater lake restoration. To be followed is the removal of exotics and trash, construction of restrooms, nature trails, observation areas, interpretive signage and limited parking. See Time Line, Attachment B. VII. Monitoring and Reporting: Project monitoring will be accomplished through an initial site survey to identify listed plant and animal species, sensitive habitat areas, encroaching exotic vegetation, and point source contaminants such as trash dump sites. A follow-up survey shall be conducted periodically to assess areas, species and items inventoried during the initial survey. Results of the monitoring will be reported in the Annual Stewardship report. The effectiveness of the implementation of the Management Plan will be also evaluated during this monitoring. This evaluation will examine the completion of physical amenities, the conduct of site maintenance, and the provision of educational programs and opportunities to the public. Management Plan objectives, as identified herein, will 13 evaluated as to the level of progress toward attainment. Any proposed modifications to the project site will be presented to the FCT for review and approval prior to implementation. is 14 Attachment A CONCEPTUAL SITE PLAN Dutton Island Intracostal Waterway Preserve PCT Project 1195-058-P56 1 y` ya 1 L • New.7shMg/ yc An Boer Dock R A.. Viewk+p Ani-:fesi:- 1 p1 (--, 7---, k Existing Her/KIMM9 • - Picnic Ane W LIC and Bea Dock rr *_`` w OAaerratlan j R"s rrr I Aly r. rrr• rr• 4 r r u M / A '. 1 Sf.n..r Orr "• _ Motorised 1 . N T nook Anre r r of R.stectien \ O 4 w` 7=''7" 1 17A We Kind Mefed»I y 4 - ,. 11 proton An/. ii; NertAe n i Boer Re.Metlon Ana aa i '.-o\\``_, rr''• CM PQ!V E ? 1 f nc Lin A... t C. m v.0000000000 Ilef.•% X11, • 111 j f` re*a rrr • 1• 1 1 I Ce . net c0C3 Q .. .. l r w•••• Q Z a Irr i SlladonP ••. 11 p 1 I. If Q . 00000- r1• r A sMeema pp r 11 ' ea+ r ter_ rrrrr r i _ r•r1 tom_ =' BkI 1 Pervious jar} +i A' ` 1. 1 a>.. Ane 6-_ 1 Ane I ri V- i• v N-' inyr •LeectD^eW mak. ll- W. Caren R..loretlo.. Sr0 o TRAILS BOARDWALK REs-rOR km on) AREA NORTH Graphic Scale 1'-100' May 1997 Attachment B DUTTON ISLAND INTRACOASTAL WATERWAY PRESERVE TIME LINE Purchase Date 3 mos 6 mos 9 mos 12 mos 15 mos 18 mos 21 mos 24+ mos 10/15/97 1/15/98 4/15/98 7/15/98 10/15/98 1/15/99 4/15/99 7/15/99 10/15/99 aseline vegetation & wildlife survey ultural resources assessment survey estoration of freshwater pond ulvert replacement ivenile crime mitigation program I continuous emove trash and debris emove exotic vegetation lonitoring I continuous iterpretive signage I continuous ature trails bservation areas icnic & primitive camping areas eplant trail roads Dutton Island Intracoastal Waterway Preserve Timeline, continued Purchase Date 3 mos 6 mos 9 mos 12 mos 15 mos 18 mos 21 mos 24+ mos 10/15/97 1/15/98 4/15/98 7/15/98 10/15/98 1/15/99 4/15/99 7/15/99 10/15/99 noe/crew launch 1 strooms 1.I nited parking I I ucational programs I continuous ii........ 7\ RIA1- 111..... 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JOHN A.DEi:-A-11EY9t.JAMES BUILDING MAYQt1 117 WEST DUVAL STREET• JAGIWONVI LE lL 22u2 abruarJ 24, 199 The Honorable Suzanne Shaughnessy Atlantic Beach City Hall 800 Seminole Road Atlantic Beach, FL 32233 Re: ,-Dutton Island Intracoastal Waterway Preserve Dear Mayor Shaughnessy: I am writing to confirm that the City of Jacksonville, as Atlantic Beach's Applicant Partner in the Dutton Island Intracoastal Waterway Preserve, FCT Project#95-058-P56, is committed to • as icing in the purchase and improvement of the preserve. I am delights: in the potential to save this precious island frnm development, and am commuted to assisting Atlantic Beach through the corning years in mutually improving the preserve. Sincerely,. John A. Delaney Mayor JAD/sa Printd en Recycled Payor This document prepared by: Ann J. Wild Florida Communities Trust Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 323.99 FLORIDA COMMUNITIES TRUST P56 AWARD# 95-058-P56 FCT Contract# GRANT AWARD AGREEMENT THIS AGREEMENT is entered into this _ day of 1997 , by and between the FLORIDA COMMUNITIES - TRUST ("FCT") , a nonregulatory agency within the State of Florida Department of Community Affairs, and CITY OF ATLANTIC BEACH and CITY OF JACKSONVILLE (FCT Recipient) , a local government of the State of Florida ("FCT Recipient" ) , in order to impose terms, conditions, and restrictions on the use of the proceeds of certain bonds, hereinafter described, and the lands acquired with such proceeds and as described in Exhibit "A" attached hereto and made a part hereof ("Project Site") , as shall be necessary to ensure compliance with applicable Florida Law and federal income tax law and to otherwise implement provisions of Chapters 253 , 259 , and 380, Florida Statutes. WHEREAS, Part III Chapter 380, Florida Statutes, the Florida Communities Trust Act, creates a nonregulatory agency within the Department of Community Affairs, which will assist local governments in bringing into compliance and implementing the conservation, recreation and open space, and coastal elements of their comprehensive plans and in otherwise conserving natural resources and resolving land use conflicts by providing financial assistance to local governments to carry out projects and activities authorized by the Florida Communities Trust Act; WHEREAS, Section 1 of the Florida Preservation 2000 Act provides for the distribution of ten percent (10%) of the net Preservation 2000 Revenue Bond proceeds to the Department of Community Affairs to provide land acquisition grants and loans to local governments through the FCT; WHEREAS, the Governor and Cabinet authorized the sale and issuance of State of Florida Department of Natural Resources Preservation 2000 Revenue Bonds ("Bonds") ; GAA\95-058-P56 08-28-1997 WHEREAS, the Bonds were issued as tax-exempt bonds, meaning that the interest on the Bonds is excluded from the gross income of Bondholders for federal income tax purposes; WHEREAS, Rule 9K-4 . 010 (2) (f) , F.A.C. , authorizes FCT to impose conditions for funding on those FCT applicants whose projects have been selected for funding in accordance with Rule Chapter 9K-4 , F.A.C. ; WHEREAS, the FCT has approved the terms under which the Project Site is acquired and the deed whereby the FCT Recipient acquires title to the Project Site shall contain such covenants and restrictions as are sufficient to ensure that the use of the Project Site at all times complies with Section 375. 051, Florida Statutes and Section 9, Article XII of the State Constitution and shall contain clauses providing for the conveyance of title to the Project Site to the Board of Trustees of the Internal Improvement Trust Fund upon the failure of the FCT Recipient to use the Project Site acquired thereby for such purposes; and WHEREAS, such covenants and restrictions shall be imposed by an agreement which shall describe with particularity the real property which is subject to the agreement and shall be recorded in the county in which the real property is located; and WHEREAS, the purpose of this Agreement is to set forth the covenants and restrictions that are imposed on the Project Site subsequent to its acquisition with the FCT Preservation 2000 Bond award. NOW THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, FCT and FCT Recipient do hereby contract and agree as follows: I. GENERAL CONDITIONS. 1. Upon execution and delivery by the parties hereto, the FCT Recipient shall cause this Agreement to be recorded and filed in the official public records of Duval County, Florida, as Exhibit B" of the warranty deed vesting fee simple title to the Project Site in the FCT Recipient, and in such manner and in such other places as FCT may reasonably request, and shall pay all fees and charges incurred in connection therewith. 2 . The FCT Recipient and FCT agree that the State of Florida Department of Environmental Protection will forward this Agreement to Department of Environmental Protection Bond Counsel for review. In the event Bond Counsel opines that an amendment is required to this Agreement so that the tax exempt status of the Preservation GAA\95-058-P56 08-28-1997 2 2000 Bonds is not jeopardized, FCT and FCT Recipient shall amend the Agreement accordingly. 3 . This Agreement may be amended at any time. Any amendment must be set forth in a written instrument and agreed to by both the FCT Recipient and FCT. 4 . This Agreement and the covenants and restrictions contained herein shall run with the Property herein described and shall bind, and the benefits shall inure to, respectively, the FCT and the FCT Recipient and their respective successors and assigns. 5. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, with respect to both substantive rights and with respect - to procedures and remedies. 6. Any notice required to be given hereunder shall be given by personal delivery, by registered mail or by registered expedited service at the addresses specified below or at such other addresses as may be specified in writing by the parties hereto, and any such notice shall be deemed received on the date of delivery if by personal delivery or expedited delivery service, or upon actual receipt if sent by registered mail. FCT: Florida Communities Trust Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 ATTN: Executive Director FCT Recipient: ATTN: 7 . If any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. II. PROJECT SITE REQUIREMENTS IMPOSED BY CHAPTER 259, CHAPTER 375, AND CHAPTER 380, PART III, FLORIDA STATUTES. 1. If any essential term or condition of this grant agreement is violated by the FCT Recipient or by some third party with the knowledge of the FCT Recipient and the FCT Recipient does not correct the violation within 30 days of notice of the violation, fee simple title to all interest in the Project Site GAA\95-058-P56 08-28-1997 3 shall be conveyed to the Board of Trustees of the Internal Improvement Trust Fund. The FCT shall treat such property in accordance with Section 380. 508 (4) (e) , Florida Statutes. 2 . Any transfer of the .Project Site shall be subject to the approval of FCT and FCT shall enter into a new agreement with the transferee, containing such covenants, clauses, or other restrictions as are sufficient to protect the interest of the people of Florida. 3 . The interest, if any, acquired by the FCT Recipient in the Project Site will not serve as security for any debt of the FCT Recipient unless FCT approves the transaction. 4 . If the existence of the FCT Recipient terminates for any reason, title to all interest in real property it has acquired with the FCT award shall be conveyed to the Board of Trustees of the Internal Improvement Trust Fund, unless FCT negotiates an agreement with another local government or nonprofit organization which agrees to accept title to all interest in and to manage the Project Site. 5. In the event that the Project Site is damaged or destroyed or title to the Project Site, or any part thereof, is taken by any governmental body through the exercise or the threat of the exercise of the power of eminent domain, the FCT Recipient shall deposit with the FCT any insurance proceeds or any condemnation award, and shall promptly commence to rebuild, replace, repair or restore the Project Site in such manner as is consistent with the Agreement. The FCT shall make any such insurance proceeds or condemnation award moneys available to provide funds for such restoration work. In the event that the FCT Recipient fails to commence or to complete the rebuilding, repair, replacement or restoration of the Project Site after notice from the FCT, the FCT shall have the right, in addition to any other remedies at law or in equity, to repair, restore, rebuild or replace the Project Site so as to prevent the occurrence of a default hereunder. Notwithstanding any of the foregoing, FCT will have the right to seek specific performance of any of the covenants and restrictions of this Agreement concerning the construction and operation of the Project Site. III. PROJECT SITE OBLIGATIONS IMPOSED BY FCT ON THE FCT RECIPIENT. 1. The Project Site shall be managed only for the conservation, protection and enhancement of natural and historical resources and for passive, natural resource-based public outdoor recreation which is compatible with the conservation, protection and enhancement of the Project Site, along with other related uses 4 GAA\95-058-P56 08-28-1997 4 necessary for the accomplishment of this purpose. The proposed uses for the Project Site are specifically designated in the Project Plan as approved by FCT. 2 . The FCT Recipient shall prepare and submit to FCT an annual report as required by Rule 9K-4 . 013 , F.A.C. 3 . The FCT Recipient shall ensure that the future land use designation assigned to the Project Site is for a category dedicated to open space, conservation, or outdoor recreation uses as appropriate. If an amendment to the FCT Recipient' s comprehensive plan is required to comply with this paragraph, the amendment shall be proposed at the next comprehensive plan amendment cycle available to the FCT Recipient. 4 . FCT Recipient shall ensure, and provide evidence thereof to FCT, that all activities under this Agreement comply with all applicable local, state, regional and federal laws and regulations, including zoning ordinances and the adopted and approved comprehensive plan for the jurisdiction as applicable. Evidence shall be provided to FCT that all required licenses and permits have been obtained prior to the commencement of any construction. 5. The FCT Recipient shall, through its agents and employees, prevent the unauthorized use of the Project Site or any use thereof not in conformity with the FCT approved project plan. 6. FCT staff or its duly authorized representatives shall have the right at any time to inspect the Project Site and the operations of the FCT Recipient at the Project Site. 7 . All buildings, structures, improvements, and signs shall require the prior written approval of FCT as to purpose. Further, tree removal, other than non-native species, and/or major land alterations shall require the written approval of FCT. The approvals required from FCT shall not be unreasonably with- held by FCT upon sufficient demonstration that the proposed structures, buildings, improvements, signs, vegetation removal or land alterations will not adversely impact the natural resources of the Project Site.The approval by FCT of the FCT Recipient' s management plan addressing the items mentioned herein shall be considered written approval from FCT. 8 . If archaeological and historic sites are located on the Project Site, the FCT Recipient shall comply with Chapter 267 , Florida Statutes. The collection of artifacts from the Project Site or the disturbance of archaeological and historic sites on the Project Site will be prohibited unless prior written authorization has been obtained from the Department _ of State, Division of Historical Resources. GAA\95-058-P56 08-28-1997 5 9 . The FCT Recipient shall ensure that the Project Site is identified as being publicly owned and operated as a passive, natural resource-based public outdoor recreational site in all signs, literature and advertising regarding/the Project Site. The FCT Recipient shall erect a sign(s) identifying the Project Site as being open to the public and as having been purchased with funds from FCT and FCT Recipient. IV. OBLIGATIONS INCURRED BY FCT RECIPIENT AS A RESULT OF BOND PROCEEDS BEING UTILIZED TO PURCHASE THE PROJECT SITE. 1. If the Project Site is to remain subject, after its acquisition by the State and the FCT Recipient, to any of the below listed activities or interests, the FCT Recipient shall provide at least 60 days written notice of any such activity or interest to FCT prior to the activity taking place, and shall provide to FCT such information with respect thereto as FCT reasonably requests in order to evaluate the legal and tax con- sequences of such activity or interest: a. any lease of any interest in the Project Site to a non-governmental person or organization; b. the operation of any concession on the Project Site to a non-governmental person or organization; c. any sales contract or option to buy things attached to the Project Site to be severed from the Project Site, with a non-governmental person or organization; d. any use of the Project Site by non-governmental persons other than in such person' s capacity as a member of the general public; e. a management contract of the Project Site with a non-governmental person or organization; and f. such other activity or interest as may be specified from time to time in writing by FCT to the FCT Recipient. 2 . FCT Recipient agrees and acknowledges that the following transaction, events, and circumstances may not be permitted on the Project Site as they may have negative legal and tax consequences under Florida law and federal income tax law: a. a sale of the Project Site or a lease of the Project Site to a non-governmental person or organization; b. the operation of a concession on the Project Site by a non-governmental person or organization; GAA\95-058-P56 08-28-1997 6 c. a sale of things attached to the Project Site to be severed from the Project Site to a non-governmental person or organization; d. any change in the character or use of the Project Site from that use expected at the date of the issuance of any series of bonds from which the disbursement is to be made; e. any use of the Project Site by non-governmental persons other than in such person' s capacity as a member of the general public; f. a management contract of the Project Site with a non-governmental person or organization; and g. such other activity or interest as may be specified from time to time in writing by FCT to the FCT Recipient. DELEGATIONS AND CONTRACTUAL ARRANGEMENTS BETWEEN THE FCT RECIPIENT AND. OTHER GOVERNMENTAL BODIES, NOT FOR PROFIT ENTITIES, OR NON GOVERNMENTAL PERSONS FOR USE OR MANAGEMENT OF THE PROJECT SITE WILL IN NO WAY RELIEVE THE FCT RECIPIENT OF THE RESPONSIBILITY TO ENSURE THAT THE CONDITIONS IMPOSED HEREIN ON THE PROJECT SITE AS A RESULT OF UTILIZING BOND PROCEEDS TO ACQUIRE THE PROJECT SITE ARE FULLY COMPLIED WITH BY THE CONTRACTING PARTY. V. CONDITIONS THAT ARE PARTICULAR TO THE PROJECT SITE AS A RESULT OF THE FCT APPROVED MANAGEMENT PLAN. 1. The FCT Recipient shall provide outdoor recreational facilities including nature trails, interpretive signage, observation areas, restrooms and limited parking on the Project Site. The facilities shall be developed in a manner that allows the general public reasonable access for observation and appreciation of the significant natural resources on the Project Site without causing harm to those resources. 2 . The timing and extent of a vegetative communities and plant species survey of the Project Site shall be specified in the management plan. The FCT Recipient shall detail how the survey shall be used during development of the site to insure the protection, restoration, and preservation of the natural resources on the Project Site. 3 . The coastal hammock, pine flatwoods and saltmarsh communities that exist on the Project Site shall be preserved and appropriately managed to ensure the long-term viability of these vegetative communities. 4 . The Project Site shall be managed in a manner that optimizes habitat for listed wildlife species that, utilize or could GAA\95-058-P56 08-28-1997 7 potentially utilize the Project Site, including the manatee, bobcat, muskrat, river otter and listed wading birds. The FCT Recipient shall coordinate with the Game and Freshwater Fish Commission and Department of Environmental Protection's Office of Protected Species Management on the management of the Project on the management of the Project Site for the protection of listed species and listed species habitat. The FCT Recipient shall also conduct periodic surveys of listed species using the Project Site and develop informational signs relating to the protection of listed animal species and their habitat. 5. The FCT Recipient shall ensure that the Project Site and listed animal species and their habitat are sufficiently buffered from the adverse impacts of adjacent land uses. 6. The FCT Recipient shall restore 18 acres of the Project Site by removing exotic vegetation, replanting trail roads with native vegetative species, restoring the aquatic habitat of the freshwater lake and adding culverts to the dike road to restore the hydrology of the saltmarsh. 7 . The FCT Recipient shall coordinate with the St. Johns River Water Management District in the development of a hydrologic restoration plan for the Project Site. 8 . A vegetation analysis of the Project Site shall be performed to determine which areas of the Project Site need a prescribed burning regime implemented to maintain natural fire- dependent vegetative communities. The FCT Recipient shall coordinate with Division of Forestry and Game and Fresh Water Fish Commission on the development of a prescribed burn plan for the Project Site. 9 . The FCT Recipient shall remove all trash and debris from the Project Site. 10. Prior to the commencement of any proposed development activities, measures will be taken to determine the presence of any archaeological sites. All planned activities involving known archaeological sites or potential site areas shall be closely coordinated with the Department of State, Division of Historic Resources, in order to prevent the disturbance of significant sites. 11. Access to the Project Site by pedestrians, bicyclists and persons on non-motorized vehicles shall be promoted except in those areas where resource protection considerations warrant limiting access. GAA\95-058-P56 08-28-1997 8 12 . The FCT Recipient shall provide educational programs at the Project Site. The programs shall include guided walks and special programs for school groups and the general public. 13 . As described in it' s application, the FCT Recipient shall provide an organized recreational program directed toward the participation of at-risk-youth. The program shall be offered on a continuing basis at the Project Site focusing on the mitigation of juvenile crime through the provision of recreational opportunities. 14 . The requirements imposed by other grant program funds that may be sought by the FCT Recipient for activities associated with the Project Site shall not conflict with the terms and conditions of the FCT award. THIS GRANT AWARD AGREEMENT embodies the entire Agreement between the parties. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement. Witness: CITY OF ATLANTIC BEACH BY: Witness Name: Its: Date: Witness Name: Attest: Clerk Accepted as to Legal Form and Sufficiency: Date: STATE OF FLORIDA COUNTY OF DUVAL The foregoing instrument was acknowledged before me this day of 1997 , by as He\She is personally known to me. Notary Public Print Name: Commission No. My Commission Expires: GAA\95-058-P56 08-28-1997 9 Witness: CITY OF JACKSONVILLE L =(. L . 4 BY: 011111"; Witness Name: Its: 2/Z Date: YJ oZf Witness Name: C As authorized by Ord. 96- Attest: ". 1095-662 and Resolutions Cierk Corporation Secretary 96-482-254 & 97-966-A, the latter of which amended • Accepted as • Leg- or `nd pg . 13 of the Management Sufficienc - • Plan . A copy of the amend- GREG* ed page is attached hereto . ASSIST'Nt GFNER.AL COUN EL Date: /o/23 c7 STATE OF FLORIDA COUNTY OF DUVAL The forre,ving instrument was acknowleflged before me this m'' day of 1997 , by as He\Sher is personally known to me. JK, iii-i`"•-"`L_f{,,.%-J Notary Public Print Name: /4.1%/,k_ Commission No. My Commission Expires: 0:'Py',; Linda Schneider R MY COMM!SSION M CC585341 EXPIRES June 23,2000 74;e0 tootoio m u mar FAIN INSURANCE,INC. GAA\95-058-P56 08-28-1997 10 FLORIDA COMMUNITIES TRUST Witness Name: James F. Murley, Chair Date: Witness Name: Accepted as to Legal Form and Sufficiency: Ann J. Wild, Trust Counsel Date: STATE OF FLORIDA COUNTY OF LEON The foregoing instrument was acknowledged before me this day of 1997 by JAMES F. MURLEY, as Chair of the Florida Communities Trust. He is personally known to me. Notary Public Print Name: Commission No. My Commission Expires: GAA\95-058-P56 08-28-1997 11 Exhibit "A" attach legal description] GAA\95-058-P56 08-28-1997 12 ATTACHMENT B- MARCH 9, 1998 COMMISSION MEETING CITY OF 1 '`1 • rileleie•tree Feae - 9eouGi.a. IF 800 SEMINOLE ROAD ATLANTIC BEACH,FLORIDA 32233-5445 TELEPHONE(904)247-5800 FAX(904)247-5805 SUNCOM 852-5800 February 24, 1998 Memorandum to: The Honorable Mayor City of Atlantic Beach Subject: Evaluation on Traffic Light at Ocean Blvd. And Atlantic Blvd. City Commission Members: At the City Commission meeting of February 9, 1998 a citizen inquired concerning the necessity of having a traffic light at the corner of Ocean Boulevard and East Coast Drive. I asked David Thompson, Director of Public Safety, to evaluate the necessity of having a traffic light at this intersection and his report and recommendation is attached herewith for your review. If I can provide you with additional information or if you have any questions please call me. Respectfully submitted, J s R. Jarboe City Manager JRJ:tl Attachment CITY OF ATLANTIC BEACH CITY COMMISSION MEETING STAFF REPORT AGENDA ITEM: Evaluation on Traffic Light at Ocean Blvd. and Atlantic Blvd. SUBMITTED BY: David E. Thompson, Director of Public Safety DATE: February 20, 1998 BACKGROUND: The Police Department has been asked to re-evaluate the necessity of having a traffic light at the intersection of Ocean Blvd. and Atlantic Blvd. To this end, the Police Department reviewed some past history on the issue in addition to soliciting input from Neptune Beach officials. Several years ago, this issue was raised largely due to some construction and renovation work in the area. At that time, there was some question as to the necessity of having a light at the intersection. It was suggested that we review the intersection to determine whether or not it would be feasible to eliminate the traffic light and install stop signs. At that time, the review was conducted including a discussion with Neptune Beach officials. The public input at that time was largely against the elimination of the light, and the Police Departments agreed that the traffic light was preferable to stop signs. Although the total traffic traveling through that intersection was relatively light, it was heavily traveled on a seasonal basis. The traffic light was considered to be a better traffic control than stop signs. Since that time, the intersection has changed considerably. When the Town Center plans were first introduced to the Police Department relative to parking and traffic flow, the Police Department requested the approval of a traffic engineer before any work was initiated. The plans called for narrowing roadways, adding pedestrian crossings, changing parking, and eliminating traffic lanes. The Police Department recommended the review and approval by appropriate traffic engineers. To the knowledge of the Police Department, this review was never performed. The intersection is now narrower and more limited than it was in years passed. It has four (4) pedestrian crossings at the intersection, and the vehicular and foot traffic is very heavy, influenced by the time of year and time of day. To assure the safety of the pedestrians crossing near the intersection, it appears that the traffic light is particularly necessary at this time. With stop signs, pedestrians will be dodging vehicles coming from all four(4) roadways, some of which will be going straight ahead, turning left, or turning right. Although the pedestrians have the right-of- way, their safety may be compromised without a light to assist them in crossing. Accidents at this intersection are fairly rare with the existing traffic light. After a discussion with Chief Bill Brandt of the Neptune Beach Police Department, he made it After a discussion with Chief Bill Brandt of the Neptune Beach Police Department, he made it clear that their Police Department opposes the elimination of the light. He recalled that the last time this issue was discussed, he received a great deal of citizen opposition to the elimination of the light. The Atlantic Beach Police Department does not have a traffic engineer on staff. If there is a great interest in pursuing the elimination of the light, then the City may want to consider obtaining the services of a traffic engineer who will have additional expertise and credentials. However, the Police Department may point out that the worst intersections in the city relative to traffic crashes, were designed by traffic engineers. If the primary concern relative to the light is the fact that it is not very attractive, then the City should consider that there are other options as to traffic lights. Instead of one light suspended by wires, they could consider post mounted traffic lights and pedestrian crossing signs on each corner. This would be more aesthetic, and it would still provide the recommended traffic control. RECOMMENDATIONS: The Police Department recommends that the intersection remain under the control of a traffic light. ATTACHMENTS: NONE REVIEWED BY THE CITY MANAGER: AGENDA ITEM: ATTACHMENT C ALAN C. JENSE1SMARCH 9, 1998 COMMISSION MEETING Attorney at Law 935 North Third Street Post Office Box 50457 Jacksonville Beach, Florida 32240-0457 Telephone (904) 246-2500 Facsimile (904) 246-9960 March 5, 1998 Mayor Suzanne Shaughnessy Commissioner John S. Meserve 168 Oceanwalk Drive South 2126 Beach Avenue Atlantic Beach, FL 32233 Atlantic Beach, FL 32233 Commissioner Mike Borno Commissioner Theo Mitchelson 223 Ocean Forest Drive North 340 Ocean Walk Drive North Atlantic Beach, FL 32233 Atlantic Beach, FL 32233 Commissioner Richard Beaver P. O. Box 331044 Atlantic Beach, FL 32233 RE: Quasi-Judicial Hearings Dear Mayor and Commissioners: The Mayor has requested that I provide you with information regarding quasi-judicial hearings, including handouts. I enclose two articles, the first one by Herbert Thiele, County Attorney for Leon County, which gives an excellent overview of the quasi-judicial process and raises some interesting questions. The second article is by Tom Pelham and contains many different cases applying the Snyder decision to various proceedings. In a nutshell, the Florida Supreme Court in the Snyder decision changed the way a city must review and process land development applications from the old rule of "fairly debatable" to the proper standard of "competent substantial evidence." Thus, a city or any of its boards must make decisions based on proper evidence and not upon who can gather the most people at a meeting and make the most noise. It may be advisable for the City to adopt a procedure for conducting quasi-judicial hearings. There are some excellent recommendations for this in the article by Mr. Thiele. I will be happy to draft a proposal if you so desire. I will also be more than happy to answer any questions you might have in this regard. Very truly yours, ALA 4 1 N Enclosures ACJ/sky cc: James R. Jarboe, City Manager (w/enc) George Worley, II, City Planner (w/enc) r PRACTICE AND PROCEDURES BEFORE LOCAL GOVERNMENT LEGISLATIVE AND QUASI-JUDICIAL_BODIES Herbert W. A. Thiele, Esq. County Attorney Leon County, Florida 1.Introduction A. The Florida Supreme Court, with its 1993 decision in Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469(Fla. 1993), changed the method local governments used to review and process land development applications, especially for rezonings and site and development plan approvals. While the Supreme Court quashed the Fifth District's ruling, in so much as it held that the clear convincing evidence standard was too restrictive,the Court held that the proper standard should be"corn.etent substanti. • 'dence "thus abandoning the old standby rule of"fairly debatable." Therefore Snyder has become the new"landmark"decision for all cases involving review of re-zoning requests(and site plans). The Supreme Court felt that the old rule that these decisions were legislative in nacre was inconsis ent with the requirements set out in Florida's Growth Management Act as enacted in 1985. Now the process for considering re-zoning applications and land development applications will usually involve quasi-judicial considerations and standards. II. Historical Path to The Adoption of Quasi-judicial Method A. Historically, the general rule on the enactment of zoning ordinances or ordinances rezoning land had been that such actions were viewed as a legislative act. See, e.g.Board of County Commissioners of Leon County v. Monticello Drug Co. and O'Connor Development Corp., 630 So. 2d 578 (Fla. 1994); Muchado v. Musgrove, 519 So. 2d 629(Fla. 3d DCA 1988);Rinker Materials Corporation v.1vletropolitan Dade County, 528 So. 2d 904(Fla. 3d DCA 1987); Florida Land Company v. City of Winter Springs, 427 So. 2d 170(Fla. 1983); Gulf and Eastern Development Company v. City of Ft. Lauderdale, 354 So. 2d 57 (Fla. 1978);County of Pasco v. J.Dico.Inc„343 So.2d 83 (Fla.2d DCA 1977); Harris v. Goff, 151 So. 2d 642 (Fla. 1st DCA 1963). However, this method was not destined to last, and its demise did not come without some forewarning. There were several cases just prior to the Supreme Court's decision in Snyder which were indicative as to how Florida's courts' views in these matters were changing. The different districts began to have differing positions as to how these re-zoning applications were to be treated. For example, the Fifth District sustained its early position that it stated in Snyder as it opined in ABG Real Estate Development Company of Florida. Inc. v, St. Johns County. Florida, 608 So. 2d 59 Fla. 5th DCA 1992) that the zoning authority must produce clear an convincing evidence in order to defeat a landowner's prima facie showing of entitlement to a particular use of his land. (at 61). Additionally, the Fourth District decided to follow suit as it held that the processing of site plans reviewed by local governments had been completely modified to be quais-judicial now. Park of Commerce Associates and Land Resources Investment Company v, City of Delray Beach. etc.. et.al„ 606 So. 2d 633 (Fla. 4th DCA 1992),fid, 635 So. 2d 12 (1994). In this case, the Fourth District 5.1 specifically overturned its prior decision in City of Boynton Beach v. VSH Realty. Inc„ 443 So. 2d 452 Fla. 4th DCA 1984), by finding that the procedure for site and development plan review was administrative, and thus quasi-judicial in nature. Therefore, the de novo trial granted by the trial court here was held to be improper. Later,the Second District Court of Appeal disagreed that local governments had to show"clear and convincing" evidence rather than "substantial competent" evidence in Lee County v. Sunbelt Equities.II. Ltd.Partnership, 619 So. 2d 996(Fla. 2d DCA 1993). Even though it adopted the Fifth District's Snyder opinion's functional analysis,the Second District felt that an existing zoning classification was enacted in furtherance of a legitimate and public purpose, ergo, the public interest is legitimately served by continuing the present classification. Thus, what? Then, in Monticello Drug Company and O'Connor Development Corporation v.Leon County, 619 So. 2d 361 (Fla. 1st DCA 1993) (now styled O'ConnorDevelopment Corporation v.Leon County)), the First District Court of Appeal specifically rejected the Snyder decision and reaffirmed the Court's prior line of cases that rezoning decisions are legislative in nature. See also Florida Land Co. v. City of Winter Springs,427 So. 2d 170(Fla. 1983);Schauer v.City of Miami Beach, 112 So.2d 838 (Fla. 1959);City of Jacksonville Btaeh_y..Sirubbs,461 So. 2d 160(Fla. 1st DCA 1984)review denied,469 So. 2d 749(Fla. 1985). These differing opinions in the different districts had caused confusion, and in order to establish consistency in the courts,the Supreme Court reviewed Snyder and decided on the quasi- judicial method to be supported with"competent substantial evidence." The"root"case involved in expounding this stricter view is Fasan v.Board of County Commissioners,264 Or. 574, 506 P.2d 23 1973). III. Local Special Legislation. Some jurisdictions within the State of Florida, and in other areas of the country,had already themselves chosen a quasi-judicial/administrative review for such measures. These include Special Acts which deal with Dade County,Orange County,and Lee County. These Acts specifically provide for certiorari review, and/or that the applications are to be processed generally according to the Florida Rules of Appellate Procedure. $tc, CoralReef Nurseries.Inc.v.Babcock Co„410 So.2d 648 (Fla. 3rd DCA 1982);Battaglia Fruit Company v. City of Maitland, 530 So.2d 940(Fla. 5th DCA 1988), rev. dismissed 537 So. 2d 568 (Fla. 1988); Grady v. Lee County,458 So. 2d 1211 (Fla. 2nd DCA 1984). IV. Any Home Rule Left Out There? An interesting argument was also made that the difference between these two methods of consideration of applications by the local legislative bodies,and their subsequent review in a judicial forum, were not judicial construction but an outgrowth of home rule decision-making by the local governments. The procedures and applications to be followed should be, and in some cases are clearly set forth in the local government's land development ordinances themselves. If these ordinances indicate that the process is legislative in nature, then arguably it is legislative. A Court should thus be bound, it follows, by this, and review such matters through a de novo proceeding. lf, however, the local government chose to enact ordinances (or have special acts) indicating that the processing of rezoning or site plans in that particular local government entity is quasi-judicial or executive/administrative in nature, 5.2 I 1 then review would be through the quasi-judicial procedure at the local level, and then certiorari review by the Circuit Court. However, it appears that Sn,_vder will no longer allow such a distinction, and thus all local government re-zonings are auasr alin nature- rha tengea V. te and As the quasi-judicial methodology of review for rezonins andterlareas oa con erne(A) evelopmnt judicial n review has been established by the Florida Supreme Court,there are thr reviewB local decision-making; and,(C)encroachment on local government home rule. Furthermore, the overall opinions of citizens in the community revs , ( )and there will be more such citizens potentially affected bylarger rezoning than, say, a single lot set-back variance)as to whether or not a specificg properlyconsidered. zoning is desirable will not necessarily be a factor which may be apparently place the A. The new standard of review in quasi-judicial proceedings wwouldfaor a areenninp complies initial burden upon the landowners/applicants to demonstrate that their reqrt requirements of the particular zoning code, nd thatt thesoughtP gh'isa consistent ie that with with the the landowners/applicants the localecomprehensive plan. Such a showing givescompetent substantialinthemannertheyseek. The burden then shifts to the opposing they are entitled to agency, use their propertyand evidence to prove by governmental which must present testimony standard, evidence that a legitimate public purpose requires maintaining eekexisting is at least designation. to satisfys than standard, adopted by the Florida Supremert in audes, by the Fifth DCA( • " the"presumptively entitled" burden suggestedpreviouslyII,, 595 So. 2d at 81) quasi- udicial proceeding before a local government legislative B. Treating rezoning as a q J t su body may involve a re- examination of all of the local procN dureseo as i rdependent ccomplete pl to " rec r testifyept on since the Court would not permit additional documents, Instead,the trial court will only review the behalf of the local government at any subsequent"trial").record" made before the local legislative body. This may mean that local governments will need tomakesurethattheyhaveonstaff,or retain,expert witnesses(such as planners or engineers)to make thissn. Local ments may record before the Board or Commission in favor of the lann ing Department to a t reran advocateof thehavetoprovideseparatespeciallegalcounselfort local government's regular legal staff is to serve as advisor to the Board or Commission. required toe In order to make an effective and supportable 11ue°Td, I, heocal governments willBoardor Commissionwill need to at o state in full the reasons for any denial of a rezoning q be difficult, if not impossible,to d make written findings of fact and conclusions of law. thatis may the local government office be the time of the initial meeting; and, may thus req the attorney'sBoard/ Commissioncebe at a further to prepareeting. a"draft" of such wn,tde bu den of p oof hiftsconsideration to the landownnerto for pubiand p further meeting. Upon such a she g> prove that the more restrictive land useconstitutes 1 damnation of the landowner's property use and the landowner is entitled to just 11,E5.3 l . , l'tiV t l c 1 1 l =t 1 ALC 1 JLL1J Ph' Altr 5.1x p The Fifth District Court in Orange County v. Lust, 602 So.2d 568 (Fla. 5th DCA 1992) concluded that a circuit court's review is only done to ascertain whether the judgment of the authority is supported by competent substantial evidence. The trial court is not allowed to decide the case on themerits, but only to review the record for the requisite evidentiary support for the decision of the board. Additionally, the Jennings v.Dade County case will prohibit, or at least limit, in these quasi- judicial proceedings any contact with the decision-makers prior to the rezoning hearing on site planreviewtakingplace. This would seem to include, but not be limited to, interested citizens, homeowner'sassociationrepresentatives, environmental groups, business groups,the applicant, the applicant'sconsultants, and perhaps even the Board/Commission's own planning and engineering staffs. This decision was felt,by many Commissioners,to be an impediment to constituents' access to their electedofficials. There is a proposed bill going before the legislature this year that is supposed to override theJenningsandSnyderdecisionsinthisinstance, and a copy of it is attached hereto as Exhibit "A." C. A Florida Bar Journal(January 1993) article by Morgan Bentley entitled Quasi-Judicial. Review of Rezoning Decisions and Local Government Home Rule Power: Can They Be Reconciled?,presents another aspect which must be addressed: DRIs. Local governments commonly followrecommendationsmadebytheirRegionalPlanningCouncils(RPC),but if they choose to approve a DRIinconsistentwithRPC's recommendation,an affected person might be able to use the RPC's position as evidence against the local government's decision. A court"could"negate the DRI approval, using the burden of proof created by 5nyder's view that rezoning is quasi-judicial, without examining itsconsistencywiththecomprehensiveplan. See also, Florida Bar Journal(May 1994) article by John W.Howell and David J. Russ, which summarizes the Snyder decisions and discusses the repercussions and suggests approaches for all sides of the issue. D. There are,however, still some decisions which may remain legislative rather than quasi- judicial. In . - • : •• " •'• 642 So. 2d 609(Fla. 4th DCA 1994), Martin County had refused to approve an application to amend its Comprehensive Growth ManagementPlanandFutureLandUseMapinorderforSection28todevelopaparceloflandasaPUD. The parceloflandwas638acresandwasborderedbyaNationalParkandaStateParkdesignatedasanaturepreserve. The Court stated"considering the pristine nature of the land in the park and around the river,and the use of the area by the public,therefore,the changes sought in this instance involved matters of policy and were subject to review under the "fairly debatable"standard.IS1. at 612. Similarly,when the same parties came before the Fourth District Court again on a similar issue wherein the trial court had 'stated that Martin County's decision was arbitrary and capricious and did not utilize the proper method of review and granted Section 28 injunctive relief and awarded them damages in a total amount of200,000. The Fourth DCA stated that the request for rezoning did not coincide with the ComprehensivePlanandtheburdennevershiftedfromtheapplicanttotheCountyandtherefore, the review waslegislativeandunderthe"fairly debatable" standard. Martin County v. Section 28 Partnership. Ltd., Case No. 94-2243 (Fla. 4th DCA February 28, 1996). Also, early in 1995 the Fourth District Court found that Delray was performing a legislative, rather than a quasi-judicial function when it established a Sed vo. l Ip6l nt Fa e 4th a in FR InvestmentCA v. Delray Beach Community Redevelopment Agency,652 u a , • i v 20 FLW D2574 (Fla. 4th DCA November 22, 1995) has also certified a question to the Supreme Court: Can a rezoning decision which has limited impact under Snyder, but 5.4 1 1 does not require an amendment to the comprehensive land use plan, still be a quasi-judicial decision subject to strict scrutiny review? However, the Fourth DCA felt that this case was distinguishable from Martin County v. Section 28 Partnership Ltd because of the location of the land and the fact that the amendment would have created a totally new categoroy in the comprehensive plan. The Fourt District felt that in this case, Yusem, the County was acting in a quasi-judicial matter, the trial court's decision was reversed because it lacked jurisdiction, and it allowed the landowner to re-file the petition and start anew. VI. Ethical and Practical Considerations. There are some broader, practical questions which need to be addressed by the local government attorney in preparing the necessary procedures for its counciUcommission such as communication, notices, and citizen participation. Attention to these questions and some suggestions on how these questions might be resolved are addressed below as more practical issues and ethical considerations. A. Example: Tallahassee-Leon County Planning Commission, Sec. 10-852. Tallahassee-Leon County Planning Commission. d) Quasi-judicial proceedings. This subsection shall govern all quasi- judicial proceedings before the Tallahassee-Leon County Planning Commission. 1) Definitions. a. "De novo proceeding" means a quasi-judicial proceeding wherein the parties submit testimony and evidence in support of their positions and the reviewing body evaluates the issues raised in a petition as if they were being reviewed for the first time. b. "Ex parte communication" means an oral or written communication made to a member of the Planning Commission by,or on behalf of, a party,or otherwise, about the merits of a matter before the Planning Commission, or foreseeably anticipated to come_before the Commission, outside of a Planning Commission meeting and without notice to the parties. c. "Party" means the applicant,the local government with jurisdiction, or any other person who will suffer an adverse effect to an interest protected or furthered by the comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse effect to an interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons. d. "Quasi-judicial proceeding" means a proceeding that results in a decision having an impact on a limited number of persons or property 5.5 c ___.... L.t-..... . owners, iv identifiable parties to and interests,where the decision is contingentwhge thet on decision fact or arrived at from distinct alternatives presented at a hearing,facts application rather than policy setting. can be viewed as policy pP e. " Rendered" means when a decision is reduced to writing and formally delivered or filed. notice 2) Decisions subject to quasi-judicial proceedings required. Planning Commission, a. The Tallahassee- Leon County rule or policy as set application of a g rulepoli 4c` ., : actions that involve the ode, shall quasi- judicial k,-o-.: when it is the ordinances Leon County Bylaws conduct the ahuc forth in ordinances nceof laws"),unless such • M: ce with Article IX of the AAgency(" Bylaws"), ir " proceedingsin g accordance laws.Commission and Local Planning in the By County Planning all parties as P formal are waived by s shall include,but are not b.Quasi-judicial proceeding eDevelopments of and subdivision review for moderate and major limited di site plan necessarilyall requests for variances and modifications; and rezoning , development, Impact, including Quality Development recommendations; Regional and Florida recommendations. quasi-judicial c. The Commission also conducts der Article IX of the requested formal when a party hassun Administrator or the Administrator's gee Bylaws a decision of the County the Administrator's petition Bylaws e. Decisions County Administrator orfiles a p ee. finalciy a of the are rendered unless a pain' Designcalendar days after they become thirty s under Article IX of the Bylaws. for formal Proceedingrequire notice of County ordinances notice d.Whenever Leon C a er of general Commission to be published in a new Sap bofore the the Planning thirty calendar Y proceedings before ublished no later than ect bef r'of the circulation,qu,such notice publicsball hearing. be published notice shall include subjectectim about ua; theudicial general formal,quasi- judicial time,and place of the hearing; a arty. The notice shall also proceeding; date, for status as P alien and the Tallahassee-Leon County citizenuparticipation informationeabout the ss,and telephone number additional include the name, employee who can p status. Planning Department requirements for parry proceeding and about the req 3) Standing to initiate. Quasi-judicial proceedingsmaybeinitiatedbythe otected will suffer an adverse effect toolan interestd prand safety, r persons who men applicant or by P rehensive plan,including interest furthered by the comp stems, densities or intensities of development, elopm environmental or police and fire protection eervice systems, or services, facilities, health care facilities, equipment 5.6 natural resources. The alleged adverse interests may be shared in common with other members.of the community at large, but shall exceed in degree the general interest in community good shared by all persons. Petitions for formal quasi-judicial proceedings must be filed in accordance with Article IX of the Bylaws. 4) Nature of proceedings. a. All quasi-judicial proceedings shall be de novo proceedings. Unless all parties waive formal proceedings,the parties will be given an opportunity to present testimony and evidence, to cross examine witnesses, and to present proposed findings of fact. b. No ex parte communications will be permitted during the pendency of a quasi-judicial proceeding before the Planning Commission. 5) Decisions of the commission. a. All Planning Commission decisions shall be based upon competent, substantial evidence. b. All evidence must be presented to the Planning Commission in accordance with Article IX of the Bylaws. c. The Planning Commission shall render an order in all quasi-judicial proceedings that shall be promptly filed in the office of the Clerk of the Planning Commission and delivered to all parties. B. Ex-parte Communication.. Policies should be adopted dealing with communication between the public and staff and the Board/Council/Commission, especially in the context of a quasi-judicial proceeding. 1.Any oral communication? In accord with Jennings,the conservative view on its application to such proceedings is that aoral communication concerning the case between Board/ Commission members and the general public or applicant should be prohibited unless made at the hearing and on the record. Others have stated that Jenninga only requires that citizens be "warned" against such contact since the consequences are not yet clear. The local government's attorney's position must be sought, and a clear policy developed on this and related issues addressed herein. Orange County v. Lust, 602 So. 2d 568 (Fla. 5th DCA 1992). 2.May communication be permitted between members of the planning or engineering staff and the general public? Probably so, but no cases, as yet, on point. 3.May communication be permitted between members of the public and the Board or Commission members if they are in writing? If such communications are received, may they be reviewed by the Board members or should they be immediately returned, or transferred to staff to be 5.7 to Claterialsbeimmediately provided likewise, a copy of these n made part applicant? staff s p appears t aat a f She ding of inniuua and related cases mored cause the e pru ental the ernmtt provideIt that a fairthe local government government to copies of X11 documents received by g of the record. made a part as it had in le the issue of.X l communications was addressed in Lake County As an example, the past used the following rules: 5Written and oral uI. i -' • •1.11.. •• - tea positions or arguments of the the between commissioners and staff shall be limited to discussions ofaafortheboardmay facts of an application or case. Discussions of prohibited. Attorney position shall be p but shall not a legal members of the opposition by the board members, to the extent rendera opinions when requestedparty's position over another,except factual determinations advocate apure y legal question. necessary to respondfully 6 All written e ceive d abybooarr d members llb c A) and concerning an application or pending case shall be immertaining to a pending case. Staff shall should not be read furtherspononce identified as p and c 6(A).(1e Co e to acknowledge receipt of the correspondence. Lake County forward a written espons para ra hs Procedures For Conduct of Quasi-Judicial Hearings, g P anew ordinance this topic However,Lake County is in the process of adoptingof the proposed regardingahis io and it should be adopted some time this summer. A copy attached hereto as Exhibit"C". C. affected parties," and others to be How are notices to the applicant, surrounding landowners, to provided or Should What would the content of those notices be concerning the recipient's ability tohed? anticipate? Should those notices also provide a warning with regard p quasi-judicial procedures apply, which in its own Special Laws determined that quasi-) Dade County, v.:; has,historically, addressed the notice issue as follows: appeals board or the board of f the zoning No action on any application shall be taken by been held upon notice of the time,place county commissionerssefsuchh untila public hearing the applicant. Notice and purpose of hearing,the cost of said notice to be borne by shall be provided as follows: general circulation in Dade in published ennal than twenty days 1) Co Said as foil wall( A) be published lllegal note e, to be papers ofg timeda days prior to the public hearing,to contain the date,County, follows: if available)and and placeno offt that thirty the30) p location (and street address, and the hearing,the property's legal description, and nature of the application, including all specific variances and other requests., and (B) a layman's notice,to be published in the newspaper of largest circulation in Dade County, no later than twenty-five(25) dayss and no earlier than thirty 5.8 Live(35) days prior to the public hearing, to contain the same information as the above described full legal notice except that the property's legal description may be omitted and the nature of the application and requests contained therein may be summarized in a more concise, abbreviated fashion. The layman's notice may be published in a section or a supplement of the newspaper distributed only in the locality where the property subject to the application lies. In the event that any time periods specified in this subsection shall conflict with any applicable provision of the Florida Statutes, the provision of the Florida Statutes shall govern. 2) A written notice containing general information, including, but not limited to, the date,time and place of the hearing,the property's location (and street address, if available), and nature of the application shall be mailed to the property owners of record, as reflected on the Dade County Property Appraiser's tax roll as updated, within a radius of five hundred(500)feet of the property described in the application, or such greater distance as the director may prescribe, no later than thirty(30)days prior to the hearing. 3) The property shall be posted no later than twenty(20) days prior to the hearing in a manner conspicuous to the public, by a sign or signs containing information including but not limited to the applied for zoning action and the time and place of the public hearing. The person or persons responsible for providing the notices provided in subsection (c) above shall attach to the application file a sworn affidavit or affidavits setting forth that they have complied with said subsection. Failure to provide the newspaper notices as provided, or failure to mail the written notices as provided, or failure to post the property as provided renders voidable any hearing held on the application. The director shall have the discretion to expand any of the notice provisions contained in this section to provide more information if deemed appropriate. Dade County Code, Chapter 33. D. Citizen Participation Local governments should also devise a procedure for notification from applicants, staff, or members of the public who wish to be participants in the case or provide testimony at the "hearing". Questions to be addressed include: Who would have standing to appear before the Board/ Council/Commission at the time of the hearing, and who would have standing subsequent to a decision to appeal"the matter? Should the notices which are provided by mail to "affected parties" also include a sign-up sheet or other notice so that these "witnesses" will be made known to all parties in advance? Are depositions permissible of these potential witnesses and in what form or manner would their testimony be prohibited or compelled? Lake County utilized sometime around 1993 the following procedure rewarding citizen participation: 5.9 Notice of Appearance. 1) Anyone other than the Applicant, the Staff and those who are entitled to receive written notice of the public hearing on the application or case under applicable law, who wish to present testimony at the hearing or cross examine other witnesses, must file a Notice of Appearance which must be in the hands of staff not later than five(5) days prior to the hearing. The Notice of Appearance should include the name and address of the party seeking to appear. Any Notice of Appearance filed by a person or entity shall include the right to appear in person or by way of a lawyer or other appropriate representative, whether or not any representative is mentioned in the Notice. 2) Standing. Those filing a Notice of Appearance shall be considered participants', in the hearing, subject to a determination of standing if challenged on that point. 3) Continuance Permitted, The Chairman of the board may allow participation in the hearing by persons filed a Notice of Appearance after the five(5)day deadline;upon a showing of excusable neglect by that person, but if such a late appearance is allowed- the Applicant shall have the right to an automatic continuance of the case,at its option, and without cost. Persons who do not file a Notice of Appearance or who file late and do not, in the opinion of the Chairman, demonstrate excusable neglect,are not entitled to seek any delay in the proceedings. 4) Witnesses of County. Anyone who does not file a Notice of Appearance may sign up at the beginning of the hearing to speak, and those who do so will be called as witnesses by the Staff during its presentation, whether they support or oppose the Staff position, subject however to the rights of participants in the hearing to object to the testimony and to cross examine these witnesses. 5) Limitation on Cross-Examination. No one who does not file a Notice of Appearance may cross examine any witness. Lake County Procedures for Conduct of Quasi-Judicial Hearings, Paragraph 2(c). E. Staff Reports Input from staff and how it is to be obtained must also be considered. Should a staff report be prepared in written form in a narrative(or in the nature of a pretrial statement)? Should only oral presentations at the hearing be permitted by staff'? If a staff report is prepared, how far in advance must it be submitted and copies be provided to the applicant? Should the applicant be permitted to provide something in the nature of a response on rebuttal "brief'? One example: 23.6.2.7. Except in extraordinary circumstances, within twenty-five(25) working days after an application is complete the County Planner shall produce a written report summarizing the county staff's review and recommendations concerning disposition of 5.10 the matter which is the subject of the application. Lafayette County Land Development Code at 23.6.2.7. F.Additional Information May members of the Board/Commission obtain information on their own? If so, should that be disclosed on the record? In what fashion? Many Board or Commission members may know of the subject property or may wish to view the subject property in advance of the hearing. Would individual views," which thus allow knowledge of the property without a specific group view, subject that Board/Council/Commission member to challenge on the basis of prejudice? VII. Conduct of the "Hearing." The local government should also spell out the order of appearance or presentation for the hearing. A. Order of Presentation. One possible sequence would be as follows: 1.A presentation by staff on the subject matter of the issue. 2.A review of the rules and procedures in advance of the hearing by the chairman of the Board or by the City or County Attorney. 3.A review of the list of any persons who have submitted notices that they wish to appear as "witnesses" in the proceeding, including citizens, staff, and applicant. 4.All potential witnesses who are to provide factual testimony should be determined(and a discussion should be held as to whether or not presentations by counsel for the applicant or the Planning Department or the County will be received as evidence or as merely argument), and consideration should be given as to how and when such witnesses will be placed under oath. 5.Decisions should be made as to whether or not cross-examination should be permitted of all witnesses, both as to the applicant's representatives, staff, and as to members of the general public. Will members of the general public be permitted to have their own counsel present who may object on the record to questions being asked of the citizen witnesses by the applicant's counsel? 6.The rules concerning admission of evidence and objections to evidence should be made known and decided in advance. 7.Staff to make presentation of its case including submission of evidence and witness testimony. 8.The applicant that would be permitted to present its case in chief. 5.11 meq. h._ and who t or the applicant een called y e staff g. Then any other witnesses lave standing, ho have not bW 11 presen tthehr"testimony. who have submitted notices in advance, 10. opportunity to present rebuttal testimony. The applicant should then have an B. Lafayette County had utilized this sequence at some time in the past and may still be using it now. 23.7.2. Order of proceedings. an o23.7.2.1. Hearings shall be conducted in possible,the following shall-beahe order ``'' informal but courteous and professional manner. To the extent reasonably of the proceedings: of Hearing officer announcementofthe rmatterrsto'l heard as y futuredexplanation iofs 23.7.2.1.1 pro.. the rights and responsibilitiesela oo the matter being heard. that may occur lication or 23.7.2.1.2. Brief synopsis by county staff describing the nature of the app appeal.e 23.7.2.1.3. Sffinodtion of exhibits. 23.7.2.1.4. Staff summary of issues and recommendations. 3.7.2.1.5. Presentation by applicant, appellant or representative. 2lication or appeal. 23.7.2.1.6. Statements by other persons in support of the app Statements by persons who oppose the application or appeal,or who 23.7.2.1.7. Stat have questions or concerns. ff. 23.72.1.8. staff.Responses and questions by 23.7.2.1.9. Final argument by the applicant or appellant. 23.7.2.1.10. Final argument by the staff. appellant or other officer,the applicant, 23.7.2.1.11. At the direction of the hearing parties m ette County a be permitted to respond to the final staff recommendation. Lafay yLandDevelopment Code at Chapter 23. C. P. • F ,ss i • - t•••s '•1. 5.12 May members of the Board of County Commissioners or City Commissioners interject questions during the course of testimony? May questions be asked by the applicant of members of the Board? Of staff? Of citizen participants? Should such questions go through the presiding officer? As an example of procedures for a quasi-judical hearing see Exhibit"B." D. Record. For a quasi-judicial matter,to make a complete record, a verbatim transcription of the meeting will need to be made by a certified stenographer or the like. Should this record be transcribed prior to the time that any decision is made? May all members of the Board be permitted to review it, as well as the applicant and staff? Should post-prehearing legal briefs be permitted and under what circumstances? E. Off-The-Record Information. If Board/Council/Commission members have intentionally or unintentionally received information outside of the record, how should this be disclosed? Should the general rules regarding voting conflicts be applicable to such decision-making? Should general knowledge of the community or specific knowledge of the subject project or property be sufficient to create a conflict? Can the applicant "voir dire" the Commissioners, like selecting a jury about what they j4 know? If such conflicts are present, would that subject one or more of the Board members to recusal upon request of either the staff or the applicant? If recusals based on prejudice or outside knowledge create a lack of a quorum, what would be the procedures that would then be followed? Would the Governor appoint a substitute to serve in the matter from which the individual is disqualified in the event a quorum no longer remains, as with the provisions set forth in Florida Statutes, Section 120.71? F. Transcripts. Should all members of the public be permitted to receive copies of the transcript, even those who were not witnesses? Would the regular cost of providing public records be applicable to such instances? May those parties also be permitted to submit"post-hearing briefs"? Does this conflict with the requirements in Florida Statutes, Section 286.0105, providing notice that no verbatim transcriptions of matters coming before a Board or Commission are required or provided? G. Preparation of Final Orders. Should a motion be made at the time of the conclusion of the final hearing by any of the members to give finality to the hearing, or should there be only a preliminary motion to provide guidance to staff(the County or City Attorney or the Planning Director)to draft an appropriate "final order"? Should "draft" final orders be prepared during the course of the hearing, or while other items on the agenda are considered then re-presented, or should the draft be presented at some future date? Should both parties be permitted to submit proposed final orders from which the Board or Commissioner may choose all or a portion? H. One Florida county utilizes the following procedures: 23.8.1. Final decisions. 5.13 23.8.1.1. Except in extraordinary circumstances or complex matters the hearing l officer shall render a written decision within five(5)working days after completion of the public hearings on all matters for which the hearing officer is authorized to render a final decision. 23.8.1.2. The hearing officer's decision shall contain the following: 23.81.1.2.1. Identification of the subject matter of property involved and the action requested by the applicant or appellant. 23.8.1.2.2 Summary of the evidence and testimony in the matter, including the recommendations of the county staff. 23.8.1.2.3. Findings of fact and conclusions of law based on the evidence and testimony in the matter. a ;si sr 23.8.1.2.4. As to an appeal of administrative action,the decision of the hearing_ t I }fl officer whether to grant or deny the appeal and specifying any administrative action to be taken by virtue of a decision granting an appeal. 23.8.1.2.5. As to other matters,the decision of the hearing officer whether to grant or deny the application or to grant the application with conditions and specifying any such conditions. 23.8.1.2.6. A statement that the decision shall be final on the fifteenth(15)calendar day after it is rendered unless the Board of County Commissioners assumes jurisdiction of the matter decided pursuant to the provisions of the Code. Lafayette County Land Development Code, at Chapter 23. I.Approval of Final Order. Final orders should be approved by a majority vote of the Board and contain specific findings of fact and conclusions of law indicating the factual and legal basis for the motion which should than be made a part of the record as well. However, should "dissenting" or"concurring" opinions be included by Board or Commission members who vote in the minority? J.Maintaining Files. All files and materials submitted at the hearing should be maintained as if it were a court file for purposes of establishing a potential appellate record. Who should be the custodian of these records? The City Clerk, the Clerk of the Circuit Court(where the subject appeal would subsequently be lodged), the Planning staff, or some other entity? Whatever is decided, it might be wise to keep a copy with the official record keeper" of the county or city, whomever that may be. May members of the public examine the file during the pendency of the matter? May members of the Board or Commission examine the file during the pendency of the matter; and if so, how would this be disclosed to the applicant or staff? 5.14 VIII. Conduct of Hearing as related to Evidentiary Rulings. Certain legal or technical arguments, or objections, may be lodged regarding admissibility of evidence" at these hearings. Consideration should be given as to whether or not a basic training course in the Rules of Civil Procedure, and the conduct of hearings, should be presented in seminar fashion to the Board of County Commissioners or City Commissioners and their staff. How would rulings on evidence submissions be determined? By a majority vote of those present and voting, or by the designated chair of that particular meeting? If it is delegated to the chair, are the chair's rulings final, or subject to an appeal to the remaining Board members? May procedures such as voir dire be permitted of witnesses? IX. Use of a Hearing Officer? A. In order to deal with the judicial nature of such proceedings, some jurisdictions created a position for a Hearing Officer. Such a Hearing Officer, trained in trial practice, conducts the hearing, then makes a recommended decision which the legislative body reviews without further de novo judicial" proceedings. Lafayette County, for example has used this methodology: 23.5. OFFICE OF THE COUNTY HEARING OFFICER. 23.5.1. Position. The Board of County Commissioners hereby creates the Office of the county hearing officer. The hearing officer shall have those powers and duties enumerated in the Lafayette County Land Development Code and other applicable county ordinances. The hearing officer shall be hired on a part-time basis by the Lafayette County board of county commissioners, and shall serve at the pleasure of the Board. Any hearing officer may be removed at any time, with or without cause, by an absolute majority of the Board of County Commissioners. Because of the judicial nature of the position,the hearing officer shall report directly to the board. The hearing officer will not represent clients in any action before the board of County commissioners nor accept any client or business which might cause an actual or perceived conflict of interest. 23.5.2. Qualifications. The hearing officer shall possess sufficient experience and expertise to carry out the duties of the position. The hearing officer shall exhibit demonstrated ability in the areas of local land use law and zoning, comprehensive planning,judicial and administrative procedure and knowledge of the rules of evidence. The hearing officer shall be licensed to practice law in the State of Florida and shall hold a law degree from an A.B.A. accredited law school. Lafayette County Land Development Code at Chapter 23. B. Historically, local governments have considered delegating the rezoning and site plans consideration function to established boards or independent hearing officers. This is generally done, 5.15 presently, for quasi-judicial functions such as the granting of variances by boards of adjustment. This is a traditionally accepted "judicial" process and forum. However, when such matters were considered to be legislative, this procedure was struck down on the basis that legislative decision-making may not be delegated. Hillsborough County utilized such a procedure in the early 1980's until a trial court found it to be improper. Since rezonings on site plan review may now be deemed quasi-judicial, perhaps delegation to a separate board hearing officer, whether their decisions are binding or advisory, may be appropriate to overcome legal or procedural obstacles and to provide technical expertise. A major negative is whether such a delegation would deprive the citizens of access to and use of their duly elected representatives? While considering whether to install a hearing officer procedure,one must also consider whether . or not, and under what circumstances,the hearing officer's decision might be binding. Would those hearing officers' decisions,even if binding,be "appealable"to the Board or Commission? If they are advisory only, does the Board or Commission conduct another full de novo trial, or should the matter be considered to be "on appeal"with its attendant appellate rules to the Board or Commission? At what- -i juncture during this process would the cX parte rule come into play? X. Subsequent Review by Circuit Court. A. The subsequent review of quasi-judicial decisions regarding land use by the Circuit Court could be by common law writ of certiorari or certiorari as provided in the local government's adopting ordinances. However, if the denial was based upon inconsistency with local comprehensive plan of a local development order,would such review be correct or even permitted? The procedures set forth in Florida Statutes, Section 163.3157, are the"sole and exclusive" remedy and methodology for a challenge based upon local comprehensive plan consistency, debatably. In this instance,would all the verified complaint" procedures and methodology be applicable? Would this be the exclusive remedy? B. In cases of alleged inconsistency with a local comprehensive plan, may persons who are not parties or witnesses during the local government's hearing, and who had received no standing by local ordinance, now become "affected parties"who could challenge the decision of the Board of County Commissioners or City Commission through the Chapter 163,Florida Statutes, methodology(even though they had yet to be participants in the process)? If the verified complaint methodology is provided, does this require the Board or Commission to have yet another hearing on the subject matter? If so, is it an appellate proceeding, a general discussion, or another de novo review? If Chapter 163 is applicable, then how would settlements of these cases be required to be reviewed? At another public hearing? At another de novo review? Or at another meeting which is duly notice pursuant to Section 286.011, Florida Statutes("Sunshine Law")? C. As stated previously there was a dispute among the appellate districts as to what the standard for review would be. Under Sunbelt, it was the lesser standard of"competent substantial" evidence to support the local government's decision. But, under the Supreme Court's decision in Snyder, the more difficult "competent substantial evidence" standard now applies. Subsequent review by an appellate court would then only address whether due process was afforded and whether the correct 5.16 law was applied below. See Education Development Center v. West Palm Beach, 541 So. 2d 106(Fla. 1989), and Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982). XI. Consequences of Ex Parte Communication. If it is determined, either before a hearing or thereafter,that off-the-record communication, either verbal or written, has been made with the decision-maker(s), can this matter be cured in advance or re-reviewed by the same Board or Commission? If such a matter is presented for the first time during a Court challenge, what is the consequence of finding such es,parte communication? In the Jennings v, Dade County decision, supra,the Court stated that Upon remand . . . (the applicant)shall be afforded an opportunity to amend his complaint. Upon such an amendment(the applicant)shall be provided an evidentiary hearing to present his prima facie case that ea parte contacts occurred. Upon such proof, prejudice shall be presumed. The burden will then switch to the respondents to rebut the presumption that prejudice occurred to the claimant. Should the respondents produce enough evidence to dispel the presumption,then it will become the duty of the trial judge to determine the claim in light of all of the evidence in the case". (589 So. 2d 1337, 1342). What the Jennings case did not address is the possibility that the respondents may not be able to rebut the presumption of ex parte contacts. In that instance,what becomes of the case? Are Board or Commission members now prejudiced and thus precluded forever to make a decision on the subject application? In that instance,who makes the decision,or is the request in the application automatically now granted where the Board/Commission had previously denied the request? What if the application really is inconsistent with the local comprehensive plan? 5.17 XII. Conclusion. Attachedfor your information is a copy of a proposed Bill for the 1996 Florida Legislature's session seeking,again, to over-ride the Snyder and Jennings.opinions regarding ex parte communication. Also, attached is a copy of the section of Leon County's ordinance on Land Development Regulations as they relate to quasi-judicial hearings. A:\QUASI-JU.SPC 5.18 SNYDER/JENNINGS UPDATE AND APPLICABILITY TO NON-TRADITIONAL QUASI-JUDICIAL PROCESSES BY THOMAS G. PELHAM APGAR & PELHAM 909 East Park Avenue Tallahassee, Florida 32301 904) 222-5984 1 SNYDER/JENNINGS UPDATE AND APPLICABILITY TO NON-TRADITIONAL QUASI-JUDICIAL PROCESSES I.IN IRODUCTION Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993) is revolutionizing the local land use decision-making process. The impact of this decision, which characterized some local rezoning decisions as quasi-judicial actions subject to procedural due process requirements, has been compounded by Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3d DCA 1993). Jennings held that ex parte communications with quasi-judicial decisionmakers is a violation of due process, are presumed prejudicial, and will result in invalidation of the local decision unless local governments rebuts the presumption. Although Snyder dealt with a rezoning decision, the rule enunciated by the Supreme Court for determining whether an action is quasi-judicial or legislative is now being extended by lower courts to an increasingly wide array of local governmental actions, including such non-traditional quasi-judicial processes as the vacation of roadways and the approval of planned unit developments. Where will the increasing trend toward judicialization of the local decisionmaking process end, and is legislation the answer? II. THE SNYDER DECISION Snyder enunciated the following tests for determining whether an action is legislative or quasi-judicial: It is the character of the hearing that determines whether or not board action is legislative or quasi-judicial . . . Generally speaking, legislative action results in the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy. 627 So. 2d at 474. (citations omitted and emphasis added). The Supreme Court then applied this test to local rezoning actions and reached the conclusions that "comprehensive rezonings affecting a large portion of the public are legislative in nature" but Rezoning actions which have an impact on a limited number of persons or property owners, on identifiable parties and interests, where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as policy application, rather than policy setting, are in the nature of . . quasi-judicial actions . . . . 2 Id. at 474. Under this dual classification of rezoning actions, the court concluded that the application in Snyder to rezone the Snyders' one-half acre parcel of land was quasi-judicial. Regarding such quasi-judicial rezoning decisions, the Supreme Court ruled that these decisions are "subject to strict scrutiny, i.e., strict compliance with the comprehensive plan," id. at 475; the landowner-applicant has the burden of demonstrating consistency with the comprehensive plan, id. at 476; that the burden then shifts to the local government to demonstrate that maintaining an existing zoning classification, assuming it is consistent with the comprehensive plan, accomplishes a legitimate public purpose, id. at 475-76; that the local government has the discretion to decide that the maximum development density provided for in the comprehensive plan should not be allowed so long as some development that is consistent with the plan is permitted, id. at 475; and that the local decision must be supported by competent substantial evidence. Id. at 476. For a discussion of the Snyder decision, see Thomas G. Pelham, Quasi-Judicial Rezonings: A Commentary on the Snyder Decision and the Consistency Requirement, 9 J. Land U. & Env'l Law 243 (1994). III. APPLICATION OF SNYDER TO LOCAL COMPREHENSIVE PLAN AMENDMENTS The facts in Snyder concerned an application for rezoning. Consequently, the Supreme Court in Snyder did not deal specifically with the nature of local comprehensive plan amendments. Moreover, in City of Melbourne v. Puma, 630 So. 2d 1097 (Fla. 1994), the Supreme Court declined to decide a case which dealt with the nature of local comprehensive plan amendments and remanded the case to the Fifth District Court of Appeal. Consequently, the Supreme Court's failure to clearly resolve the quasi-judicial issue as it relates to comprehensive plan amendments and its dual classification of rezoning actions has created a great deal of confusion and resulted in continuing litigation over this issue, especially in the Florida Fourth District Court of Appeal. A. City of Melbourne v. Puma, 630 So. 2d 1097 (Fla. 1994). A landowner applied to the City of Melbourne for an amendment to the City Comprehensive Plan's Future Land Use Map to change the designation of its property from low density residential to commercial and for a rezoning. After the City denied the application, the landowner filed suit in circuit court, which initially held that the City's denial was a legislative act but then on rehearing, based on the Fifth District's Snyder decision, held that the plan amendment was quasi-judicial. After the Fifth District affirmed the circuit court's final order on rehearing, the Supreme Court first accepted jurisdiction of the case but then, after rendering its Snyder decision, remanded Puma to the Fifth District "for further consideration consistent with our opinion in Snyder." Id. at 1097. This brief opinion in Puma has created confusion about the legislative/quasi-judicial nature of comprehensive plan amendments. B. Florida Institute of Technology v. Martin County, 641 So. 2d 898 (Fla. 4th DCA 1994) rev. denied, 651 So. 2d 1195 (Fla. 1995). The Florida Institute of Technology 3 FIT") owned an 81-acre tract of land. In 1987 FIT sold the land to new owners who applied for a comprehensive plan amendment to change the land use designation of the property to allow commercial, office, and residential uses as a planned unit development PUD). Martin County approved the application, but the new owners never developed the land. FIT subsequently reacquired the land through foreclosure and sought an extension of the PUD timetable for development of the property. Concerned about the validity of the original rezoning, the County staff suggested that the requested extension be accomplished by County-initiated land use plan amendment and rezoning for the specific property. After the Board denied this request, FIT sought judicial review. The Fourth District held that the County's decision in denying the requested plan amendment was quasi-judicial because "its decision regarding the land use amendment applied the underlying policies of the comprehensive plan to a specific parcel and landowner under circumstances allegedly consistent with those policies and should be construed not as policy setting, but as policy application." Id. at 900. C. Section 28 v. Martin County, 642 So. 2d 609 (Fla. 4th DCA 1994), rev. denied, 654 So. 2d 920 (Fla. 1995). The owner/applicant of a 630-acre parcel sought to develop the land with a use not allowed in the County's Comprehensive Plan. The land was located outside the Urban Service Area designated in the Comprehensive Plan and did not qualify for public water, sewer, or other urban facilities. Consequently, the applicant requested the County to amend its Comprehensive Plan to create a new land use category designated "Adjacent County Urban Service Areas" ("ACUSA"). Land designated ACUSA could be developed by using urban facilities from an adjacent county. The applicant also requested a Future Land Use Plan Map amendment to designate its land for ACUSA use. - C Id. at 612. The Fourth District Court of Appeal held that Martin County's refusal to transmit the applicant's proposed comprehensive plan amendment to the Department of Community Affairs was a legislative action. Citing Snyder, the court stated: T]he County's decision not to amend the comprehensive plan to allow ACUSAs was a legislative or policymaking decision under Snyder. We come to that conclusion because an ACUSA would be a new classification of property which is not presently in the comprehensive plan, and thus "a formulation of a general rule of policy." Snyder, 627 So. 2d at 474. It would not be the application of policy because there are no provisions under the existing plan for the creation of ACUSAs. Id. D. Martin County v. Yusem, 20 Fla. L. Weekly D1967 (AUG. 30, 1995), modified on other grounds, 20 Fla. L. Weekly D2574 (NOV. 22, 1995), petition for discretionary review pending, Florida Supreme Court Case No. 87-078. The 54-acre tract at issue in Yusem was eligible for development at two units per acre under the Martin County Comprehensive Plan. However, the Martin County Future Land Use Map (FLUM) limited development on this parcel to one unit per acre. Accordingly, the landowner filed 4 t an application to amend only the FLUM to allow a development of up to two units per acre as provided in the comprehensive plan. Martin County denied the application for a FLUM amendment. The Fourth District Court held that the County's denial of this site-specific application to amend the FLUM of the Comprehensive Plan was quasi-judicial. Id. at D1968. Citing both Snyder and Florida Institute, the court found that this application "will have a limited impact on the public" and "essentially addressed the change of the land use designation for a particular piece of property." Id. Therefore, Yusem concluded that the plan amendment involved a limited impact, site-specific amendment to the FLUM, did not formulate new policy, and was therefore, quasi-judicial in nature. The Florida Supreme Court is currently considering whether to take jurisdiction and render a decision in Yusem. The Florida League of Cities has filed an amicus brief which contends that all comprehensive plan amendments should be deemed legislative actions for the following reasons: (1) The Growth Management Act envisioned comprehensive plans and plan amendments as legislative acts; (2) Comprehensive Plan Amendments are legislative acts under controlling Florida case law; (3) Compelling public policy considerations support the characterization of all plan amendments as legislative acts; and 4) Affected landowners have adequate remedies without the addition of a quasi-judicial hearing requirement to the plan amendment process. In briefs filed with the Supreme Court, both Martin County and the Florida League of Cities are urging the Supreme Court to adopt the dissenting opinion in Yusem which argues that all plan amendments, like the original comprehensive plan itself, are legislative acts. E. Board of County Commissioners of Sarasota County v. Karp, et al., 20 Fla. L. Weekly D2268 (OCT. 4th 1995). This case involved a "corridor plan" adopted by Sarasota County as a "critical area plan" as provided for in the County Comprehensive Plan. The corridor plan extended along a parkway for a distance of 5.5 miles, affected 179 acres of land, including 48 separate parcels. The corridor plan designated Respondent's property, which was zoned residential, for office use and also imposed a condition applicable only to Respondent's property with the condition reserved a 40-foot wide easement across their property to protect the County's waterlines. The Second District Court of Appeal reversed the Circuit Court's determination that, under the particular circumstances of the case, the adoption of the corridor plan was quasi-judicial. The Second District determined that the action was legislative in nature under the Snyder test, finding that the corridor plan affected some 179 acres of land, including a substantial number of separate parcels (48) and that the area was a "vibrant, rapidly changing area of the County in need of a more updated plan." As for the easement condition, the Court characterized it as a "minor, rather tentative requirement," which did not convert the corridor plan to a quasi-judicial action. Id. at D2268. IV. APPLICATION OF SNYDER TO VACATION OF ALLEYS AND ROADWAYS Hernando County v. Franklin, 21 Fla. L. Weekly D257 (Fla. 5th DCA 1996) involved the Franklins' petition to close an alley separating their two lots and to vacate the street which separated both lots from the Gulf. After the County denied the petition to vacate the roadway and alley, the Franklins filed an action for declaratory relief in the 5 circuit court after the 30 day period for seeking certiorari review had expired. After the Franklins obtained a favorable circuit court judgment, the County sought review in the Second District Court of Appeal. The Second District noted that there was an issue concerning the jurisdiction of the trial court: If the action of the Board of County Commissioners in closing roads is quasi-judicial, the only review is by certiorari. On the other hand, if such action is legislative, then declaratory relief is appropriate. Because this matter was not properly briefed and because the issue was not presented to the trial court, we believe that the issue should be sent back for better development. Id. at D258. The Second District directed the trial court to consider the Snyder test in determining the nature of the County's action. V. APPLICATION OF SNYDER TO PLANNED UNIT DEVELOPMENTS The Planned Unit Development technique provides a flexible approach to zoning which allows the local government and developer to negotiate a development plan that - departs from the more rigid requirements of traditional Euclidean zoning. If the local government and the developer cannot reach agreement on a PUD development plan, then a landowner retains the traditional zoning classification assigned to its property. Following Snyder, the question arises as to whether the local government's action on an application .:-,' - for PUD zoning, a PUD development plan, and amendments to PUD zoning and development plans, are quasi-judicial or legislative actions. The issue is significant because a local government's decision to depart from the requirements of its traditional zoning district regulations can be viewed as one involving a large measure of discretion and policymaking. However, if Snyder converts such decisions into quasi-judicial actions, the local government's discretion is restricted and its flexibility in the negotiations with the applicant is reduced. A. Pre-Snyder Approach: Porpoise Point Partnership v. St. Johns County, 532 So. 2d 727 (Fla. 5th DCA 1988). A landowner applied to have its property rezoned back to commercial, but the County Commission denied the request and determined that a PUD approach would be better. Although the landowner objected to the PUD classification, the County nevertheless rezoned the property to a planned unit development category, including a specific site plan and development schedule prepared by the County Planning Staff. The Fifth District Court of Appeals quashed the County's decision because of the nature of PUD zoning, noting that the concept provides a flexible approach which "requires cooperation between the property owners and the zoning authority in creating an overall plan." Id. at 728-29. While the local government may impose a traditional zoning classification on property, the PUD approach by its very nature must be sought by the property owner, and cannot be imposed over an owner's objection." Id. at 729. (Impliedly and logically, the landowner also cannot impose a specific PUD plan on the local government). The Court 6 found that the local government's rezoning of the property to a PUD classification was not fairly debatable and, therefore, quashed the local government's decision. B. Post-Snyder Approach: ABG Real Estate Development v. St. Johns County, 608 So. 2d 59 (Fla. App. 5th DCA 1992). ABG applied to St. Johns County to modify a final development plan for its PUD. More specifically, ABG sought approval to locate a McDonald's restaurant within the commercial area of the PUD. The PUD development order allowed such use as an exception. However, the County denied the application on the grounds that it would be "contrary to public health, safety, or welfare and incompatible with the neighborhood." Id. at 61. The County made no findings of fact and gave no other reasons for its denial. Following its decision in Snyder, the Fifth District Court of Appeal reversed the County's denial of the application. The Court held that the decision was quasi- judicial and subject to the competent substantial evidence standard set forth in Snyder. Moreover, it held that the County had not presented clear and convincing evidence of any public necessity justifying denial of the application. Id. at 62. (The clear and convincing evidence rule was subsequently overruled by the Supreme Court in its Snyder decision). The Court did note that the decision was quasi-judicial because it involved the granting of an exception which is subject to a competent substantial evidence standard and not the traditional fairly debatable rule. Because ABG had made a prima facie case in support of its application and the County had failed to present clear and compelling evidence of a public necessity, the Court reversed the County's decision as arbitrary and unreasonable. Id. at 63. City of New Smyrna Beach v. Andover Development Corporation, 21 Fla. L. Weekly D997 (Fla. 5th DCA Apr. 26, 1996) is the Fifth District's latest decision dealing with the PUD technique. The Fifth District reversed the Circuit Court's order directing the City to approve the developer's application for an amendment to its PUD final development plan on grounds that are not relevant here. However, in commenting on the application for a PUD amendment, the Court included the following note: Since a PUD 'zoning' is not a fixed area on the zoning map but instead is a zoning concept granted only to an approved, large project (and then shown on the zoning map), is the amendment of such a 'zone' the 'formation of a [new] general rule of policy' as it relates to the affected area? And since we are talking about the 'rezoning' of a 55 acre parcel that will affect many residents of the project who may have purchased in reliance on the original plans, will the city commission's decision be legislative or quasi-judicial? See Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 Fla. 1993). Id. at D998 n.2. 7 VI. APPLICATION OF SNYDER TO LOCAL DRI PROCEEDINGS Negotiation of a DRI development order has some similarities to the negotiation of a PUD development plan. Local DRI development approval entails more than obtaining or complying with local zoning and other land use regulations; a development order which adequately addresses regional impacts in accordance with the provisions of Chapter 380, Florida Statutes, must also be negotiated and adopted by the local government. The regional impact criteria of Chapter 380 are rather open ended; they simply require the local government to consider the impact of the proposed project on various regional resources. A determination of compliance with these regional factors entails the exercise of discretion and policymaking both at the local government level and before the Florida Land & Water Adjudicatory Commission. To what extent should local DRI decisions be subject to the Snyder mandates? VII. THE APPLICABILITY OF SNYDER TO OTHER LOCAL ACTIONS Some local governments have contended that the Florida Supreme Court's analysis in Snyder is limited to rezoning cases. However, the Florida Supreme Court in Park of Commerce Associates v. City of Delray Beach, 636 So. 2d 12 (Fla. 1994), expressly rejected this contention. In Park of Commerce, the City of Delray Beach rejected an applicant's site plan for development. The applicant asserted that the City's decision was a quasi-judicial action and sought certiorari review in circuit court. The City opposed the certiorari review on the basis that the site plan review is actually a legislative action. In reaching its conclusion that a decision on a site plan is a quasi-judicial action and not a legislative action, the Supreme Court relied upon the functional tests set forth in Snyder. Park of Commerce, 636 So. 2d at 15 (quoting Snyder, 627 So. 2d at 474). Based upon this analysis, the Supreme Court determined that the City's denial of a site plan was a quasi- judicial action. Moreover, the Supreme Court expressly refused to recede from its ruling in Snyder, holding that: The City of Delray Beach urges this court to recede from its ruling in Snyder. We decline to do so. Because the site review plan that the . . . City . . . denied meets the characteristics set out in Snyder, the plan was properly reviewed by certiorari. No legislative discretion was involved in determining whether the property owner complied with regulations set out in a local ordinance. Id. (emphasis added). The Supreme Court concluded that decisions of local governments on building permits, site plans, and other development orders are quasi-judicial in nature. Id. See also Grace v. Town of Palm Beach, 56 So. 2d 945 (Fla. 4th DCA 1995) (special exceptions). 8 VIII. IS-LEGISLATION THE ANSWER? A. State and local legislation can and should more clearly differentiate between policy formulation and policy application activities. B. Legislation was introduced into the 1996 Florida Legislature by Representative Stan Geller which would have declared all comprehensive plan amendments and all rezonings actions to be legislative acts. This proposal encountered strong opposition from a variety of groups. As a result, Representative Geller revised his proposal to address only the Jennings ex parte issue. The text of his proposal, which was passed by the 1996 Florida Legislature (SB524) as an amendment to Fla. Stat. § 286.0115, reads as follows: 2)(a) Notwithstanding the provisions of subsection (1), a . county or municipality may adopt an ordinance or resolution establishing the procedures and provisions of this subsection for quasi-judicial proceedings on local government land use matters. The ordinance or resolution shall provide procedures and provisions identical to this subsection. However, this subsection does not require a county or municipality to adopt such an ordinance or resolution. b) In a quasi-judicial proceeding on local government land use matters, a person who appears before the decisionmaking body who is not a party or party-intervenor shall be allowed to testify before the decisionmaking body, subject to control by the decisionmaking body, and may be requested to respond to questions from the decisionmaking body, but need not be sworn as a witness, is not required to be subject to cross- examination, and is not required to be qualified as an expert witness. The decisionmaking body shall assign weight and credibility to such testimony as it deems appropriate. Aparty or partv-intervenor in a quasi-judicial proceeding on local government land use matters, upon request by another party or party-intervenor, shall he sworn as a witness, shall be subject to cross-examination by other panics or party- intervenors, and shall be required to be qualified as an expert witness. as appropriate. c) In a quasi-judicial proceeding on local government land use matters, a person may not be precluded from communicating directly with a member of the decisionmaking body by application of ex parte communication prohibitions. Disclosure of such communications by a member of the decisionmaking body is not required, and such nondisclosure shall not be presumed prejudicial to the decision of the decisionmaking body. All decisions of the decisionmaking 9 body in a quasi-judicial proceeding on local government land use matters must be supported by substantial, competent evidence in the record pertinent to the proceeding, irrespective of such communications. Local governments should probably be very cautious in relying on this legislation which takes effect October 1, 1996. The Jennings decision regarding ex parte communications was based on constitutional due process requirements. The power of the Legislature to alter the Jennings rule is debatable. C. The need for a uniform code of minimum local government procedures. The cities and counties should take the lead in proposing a uniform code which provides a minimum level of procedural protection at local proceedings. Otherwise, the Florida Legislature may do the job for you. kar C 10 Agenda Dutton Island Workshop 3 March 1998 at 4:30 pm Purpose: The objective of this workshop shall be to fully acquaint all Members of the Atlantic Beach City Commission with the Facts pertinent to the proposed joint purchase of the land known as "Pine Island"by the State of Florida, the City of Jacksonville County of Duval), and the City of Atlantic Beach, as a Preserve dedicated for use as a Regional public park. A. Introduction of Presenters: (Mayor Shaughnessy) The Honorable John A. Delaney, Mayor, City of Jacksonville The Honorable Lyman T. Fletcher, Former Mayor, City of Atlantic Beach Mr. Tom Dumas, Member: Florida Land Trust Agent for Estate of Walter E. Dutton, deceased Consultant to the Cities of Atlantic Beach and Jacksonville on the Grant Application to Preservation 2000 Land Acquisition Program. Members of City Staff B. Philosophy behind Preservation 2000 program(Mayor Shaughnessy) C. History of"Dutton Island" project. (Former Mayor Fletcher, Mr.Dumas) D. Funding for the Project: 1. Committment from City of Atlantic Beach (Mayor Fletcher) 2. Committment from City of Jacksonville (Mayor Delaney) 3. Committment from State of Florida (Ann Perry, Esq.) 4. Committment from Jacksonville Port Authority 5. Other sources of funding (Mayor Fletcher, Mr. Dumas) E. Current status of Application and scheduled closing date (Mr. Dumas) F. Questions from Commissioners G. Opportunity for Public Comment