Exh 2Ah?it-i1t31'1' A
MINUTES -MAY 12, 1999
CITY OF ATLANTIC BEACH
CITY COMMISSION
STAFF REPORT
AGENDA ITEM: Centex Property Negotiations with Jacksonville
DATE: May 11, 1999
SUBMITTED BY: David E. Thompson, City Manager
BACKGROUND: This morning, May 11,1999, City Attorney Alan Jensen, Pazks and
Recreation Director Timmy Johnson, Community Development Director
George Worley, and the City Manager met with Jacksonville
representatives to discuss the purchase of the Centex Property.
At the outset, Jacksonville requested that Atlantic Beach commit to:
10% of the purchase price, $270,000 toward the purchase;
Commit to the management of the park; and
l Act as a co-applicant for grant funding toward the purchase of the
property.
After some discussion, there were a variety of changes and options
discussed by the group:
The $270,000 request for the purchase was reduced to $190,000,
and this money would not have to be paid until the last quarter of
the year. This places this project in the 1999-00 budget cycle, and
it gives the City Commission time to identify funds and budget
appropriately if they wish to fund it.
The management of the park can be done more cost-effectively by
' Atlantic Beach than by Jacksonville. With the pazk ranger
assigned to Dutton Island, the additional time to oversee the
Centex property would be a reasonable extension of his/her duties.
However, the management will be very dependent on the nature of
the programs and the construction in the park, and Atlantic Beach
has pointed out its desire to leave 90% of the pazk in its natural
state. Atlantic Beach will review and approve the grant application
before it is submitted to Tallahassee.
Relative to AB acting as a co-applicant for the grant, this joint
~''' action by Atlantic Beach and Jacksonville gives the grant
application additional points toward approval. The grant is a
competitive grant, and the points will be valuable in the approval
. process. Jacksonville has already initiated the grant application,
. and it should be ready by the end of the week. Staff should have
_ this application in time to place it on the May 24, 1999 City
Commission Agenda.
Under the existing proposal, there is no commitment to deed the
property to the City of Atlantic Beach. If the property remains the
possession of Jacksonville, then Atlantic Beach will not have to
insure it. Under the grant, the property will be required to remain
as park Land for at least ten (10) years. The disadvantage, however,
is that Jacksonville could change the use of the property in ten (10)
years.
Capital expenditures have not been identified at this point, and
there has been no discussion as to the responsibility for funding
them. Since most of the park will be left in a natural state, the
capital costs should remain relatively low. However, this is an area
that has not been addressed at this time.
Summary: The City of Jacksonville would like for Atlantic Beach to
commit $190,000 to the purchase of the property, act as a co-applicant for
the grant funding to purchase the property, and commit to the management
of the park.
REVIEWED BY CITY
AGENDA ITEM NUMBER:
n
' MA1 • • 12-99 1 1 ~ 37 FROM ~ OFF I CE OF CEbI COUAISEL
wctt~ A Muu~EY
OENEftAL COUNSEL
CJNDY A LAgUiDARA
CtIIEF DEPUTY GENERAL COUNSEL
EXHIBIT B '3
1~•1INUTES - i~1AY 12, 1999
OFFICE OF
GENERAL COUNSEL
CITY OF JACKSONVILLE
117 YJF-SST DUVAL STREET, SUITE 480
JACKSONVILLE, FLORIDA 37202
EMAIL: C~lOYL®COJ,NET
May l 1, 1999
n
Miles N. Francs, Jr., l~cecutive Director
Jacksonville Transportation Authority
100 N. Myrtle Avenue
Jacksonville, Florida 32242
TEL (904) 630-700
FAX {944) 634.1731
DIRECT DtAe_ NUMBER
(904)630.1728
Post-It° Fax Note 7671 ~D , - ~-9 wafls~ ~
To ~ F~a~ 'oa t~ir...
Go~DcpL ~•
Pnono o' Phono t ~ ~ U- i ~ o-Z
F~=a~~.~y~r, F~= ~~-Q_ ~.
Re: Request for Legal Opinion; Atlantic Boulevard Overpass
Dear IVIr. Francis:
You have asked for a legal opi~uon regarding the right of the Jacksonville
Transportation Authority (the JTA) to ~nstnlct an overpass located within Atlantic
Beach when the City of Atlantic Beach has raised objections under its ordinance code to
the height of the overpass..As set forth below in more detail, the JTA is empowered to
construct the overpass regardless of such an objection.
The JTA is responsible, along with the Florida Department of Transportation, for
the construction o~ statc roads within Duval County. FIa. Stat. Section 349. In keeping
with its rights and Uabilities under Section 349, the jI'A conducted a review of the uaffic
and safety conditions surrounding the interchange of Mayport Road and Atlantic
Boulevard. These conditions pointed to the need For a revised traffic pattern. Following
a detailed study by professional traffic and structural engineers engaged for that purpose,
the JTA identified four possible alternatives. Public hearings were held, and, although
unnecessary, the Atlantic Beach City Commissioners approved the overpass.
- MAY••12-99 11.39 FROM+OFFICE OF C8N COUNSEL ID.9096301316 PAC
Miles N. Francis, rr.
May )l 1, 1999
Page - ?'vvo -
Subsequently, questions were raised by Atlantic Beach concerning the design o
the overpass. As a courtesy, the project was delayed while those concerns were reviewed
uest:ion•
,Assuming that the Atlantic Beac;h/Mayport Road overpass is the subject of a
determination by Atlantic Beach that its construction would violate the Atlantic Beach
zoning code height xestrictions, may the jTA construct the roadway?
Short Answer.
Yes, the JTA may construct the roadway despite Atlantic Beach's objections.
j~j~~cussion:
The ~I'A is created as a state agency, with the powers to design and construct state
roadways and appurtenances thereto in Duval County, Florida. Fla. Stat. Section
349.04. Zn ftlrthcrance of its obligations to determine the need and safety issues
necessary with regard to the construction of such roadways, the JTA is not required to
abandon its determination and construction plans to address height limitations within
a community, even assuming such zoiung limitations were intended to apply to
ovezpasses, which they are do not. Moreover, Section 349.042 expressly identifies those
hearings and constraints placed upon the X'TA in the planning and construction of its
roadways. It is notable that Section 349.042 provides for hearings, and notices, but not
for the veto or overriding of any JTA decision as to the necessity of construction.
Yt is notable that this issue was put to rest as to the F1~OT, in an opinion equally
appIic.~ble to the JTA. See .Department of Trunsportatian v. Lopez-~'orres, 526 So.2d 674
(Fla. 1988).
~Qnchtision:
i trust that this opinion has provided the guidance sought. Please .feel free to call
" MAif~12-99 11:3H FROM.OFFICE OF GEPI COUNSEL ID.9046301316 PAGE 3/3
Miles N. Francis, Jr.
May 11, 1999
Page -Three -
me should you have any further questions or require any additional information.
'Very truly Yours,
~~
Cindy.A.. Laqui
Chief Deputy General Counsel
5/I 2/99 C:AL G ~SHARF.I7~CINDYLVI'J11I,EGAIAPI,ZONING.I-iGT
~'
~~
t
526 So.2d 674
13 Fla. L. Weekly 263
(Cite as: 526 So.2d 674)
DEPARTMENT OF TRANSPORTATION,
Petitioner,
v.
Dr. and Mrs. Augusto LOPEZrTORRES, Town of
Ocean Ridge and Audubon Society of
the Everglades, Respondents.
No. 69,035.
Supreme Court of Florida.
April 14, 1988.
Rehearing Denied July 7, 1988.
Community, citizens and environmental society
appealed final administrative order entered by
Department of Transportation which reversed hearing
officer's ruling that community was entitled to
summary order on its challenge to Department's
decision to reconstruct bridge over navigable island
waterway at different location from that of existing
plan. The District Court of Appeal, Letts, J., 488
So.2d 848, reversed and remanded. Upon
certification of questions, the Supreme Court, Kogan,
J., held that Department of Transportation had
authority to route state road bridge through
municipality in corridor that conflicted with
municipality's comprehensive growth plan.
Approved in part, quashed in part, and remanded.
[1] BRIDGES X18
64k18
Local govemments and Department of Transportation
should cooperate and coordinate their transportation
planning efforts to greatest extent possible as
provided by the Local Government Comprehensive
Planning and Land Development Regulation Act;
however, Act does not divest Department of its
plenary power to plan and construct state roads and
bridges and thus, Department may route state road
bridge through or into municipality by way of
corridor that conflicts with municipality's
comprehensive growth plan. West's F.S.A. §§
163.3161-163.3215.
(1] HIGHWAYS °. 103
200k103
Local govemments and Department of Transportation
should cooperate and coordinate their transportation
planning efforts to greatest extent possible as
provided by the Local Government Comprehensive
Page 1
Planning and Land Development Regulation Act;
however, Act does not divest Department of its
plenary power to plan and construct state roads and
bridges and thus, Department may route state road
bridge through or into municipality by way of
corridor that conflicts with municipality's
comprehensive growth plan. West's F.S.A. §§
163.3161-163.3215.
[2] ADMINISTRATIVE LAW AND
PROCEDURE 0755
15Ak755
Department of Transportation's power to plan and
construct state roads and bridges, while plenary, is
not absolute; dictates of Department can be
overridden if they are found to be without authority
and constitute abuse of discretion.
[2] BRIDGES G~7
64k7
Department of Transportation's power to plan and
construct state roads and bridges, while plenary, is
not absolute; dictates of Department can be
overridden if they are found to be without authority
and constitute abuse of discretion.
[2] HIGHWAYS C~99
200k99
Department of Transportation's power to plan and
construct state roads and bridges, while plenary, is
not absolute; dictates of Department can be
overridden if they are found to be without authority
and constitute abuse of discretion.
*674 Maxine F. Ferguson, Appellate Atty. and A.J.
Spalla, General Counsel, Dept. of Transp.,
Tallahassee, for petitioner.
Hugh MacMillan, Jr. of Hewitt & MacMillan, P.A.,
Palm Beach Gardens, James R. Brindell of Gunster,
Yoakley, Criser & Stewart, P.A., and John C.
Randolph of Johnston, Sasser, Randolph & Weaver,
West Palm Beach, for respondents.
James W. Vance of Janes W. Vance, P.A., West
Palm Beach, amicus curiae for City of Boynton
Beach, Fla.
J. Michael Haygood of Haygood R: Williams, P.A.,
West Palm Beach, amicus curiae for Boynton Beach
Community Redevelopment Agency.
KOGAN, Justice.
Copr. ®West 1999 No Claim to Orig. U.S. Govt. Works
526 So.2d 674
(Cite as: 526 So.2d 674, *674)
The District Court of Appeal, Fourth District, has
certified the following as questions of.great public
importance:
I. Has the legislature preempted municipalities from
exercising any control over the establishment of
state roads and bridges?
II. Does the DOT have the authority to route a state
road bridge through or into a municipality in a
corridor that specifically conflicts with the
municipality's comprehensive growth plan?
III. Were the procedural standards employed in the
case at bar sufficient to justify the DOT's decision
on the merits?
Lopez-Torres v. Department of Transportation, 488
So.2d 848 (Fla. 4th DCA 1986). This Court has
jurisdiction pursuant to article V, section 3(b)(4),
Florida Constitution. *675 For the reasons expressed
we answer the first two questions in the affirmative
and the third question in the negative, and remand
this cause for a full evidentiary hearing.
The dispute arose behveen the Lopez-Torres and the
Department of Transportation (DOT) over the DOT's
decision to construct a replacement state road bridge
700 feet north of the existing Boynton Beach span.
Although the DOT objected, the town of Ocean
Ridge and the Audubon Society were permitted to
intervene. The respondents filed a motion for
summary recommended order, asserting that the DOT
was precluded from relocating the proposed
replacement bridge because the relocation site was
inconsistent with the comprehensive plan of Ocean
'" Ridge, enacted pursuant to section 163.3161, Florida
Statutes (1985).
Although other issues were alleged in the pleadings
which instituted this administrative proceeding, [FN*j
the parties stipulated that the hearing would only
address the issue of law in the respondents' motion for
summary recommended order. The hearing officer
subsequently issued a recommended order barring the
DOT from relocating the state road bridge as a matter
of law because the proposed relocation was
inconsistent with, and therefore precluded by, Ocean
Ridge's comprehensive plan.
FN* The Lopez-Tones allege in their request for an
administrative hearing that the relocation of the
bridge "will have the effect of destroying the quality
of the residential property of petitioner and will also
,. be destructive to environmentally sensitive property
immediately adjacent to the residence of petitioner."
After reviewing the record the Secretary of the
Page 2
Department of Transportation entered a final order
which adopted the findings of fact set forth in the
recommended order. However, the Secretary rejected
the hearing officer's conclusions of law, finding those
conclusions disturbed the DOT's plenary and
exclusive power granted to it by the legislature to
plan, establish and locate the state road system. No
full evidentiary hearing was held, and the DOT
entered a final administrative order authorizing
construction of the bridge at the new location.
On appeal the Fourth District Court of Appeal found
reversible error on the ground that the respondents
had been denied due process of law because they
never received a full evidentiary hearing on the
merits. The district court concluded that the DOT's
power, while plenary, was not absolute and therefore,
after reexamining the evidence, declared that the
DOT's decision to relocate the bridge was clearly
erroneous and constituted an abuse of discretion. The
district court reversed and remanded the cause for a
full hearing pursuant to section 120.57(1), Florida
Statutes (1983).
The legislature has statutorily vested a broad
discretionary authority in the DOT to plan and
construct state roads and bridges. The Florida
Transportation Code (Code) (codified as chapters
334-39, 341, 348 and 349, and sections
332.003-.007, 351.35-.37, and 861.011), section 334,
Florida Statutes (1985), provides for a statewide
transportation system under the supervision and
control of the DOT. The Code specifies the
responsibilities of the DOT, the counties, and the
municipalities, establishing a stratified structure of
control under which the DOT has the primary power
to plan, construct and maintain the state road system.
As Judge Anstead correctly points out in his dissent,
this Court in Webb v. Hill, 75 So.2d 596 (F1a.1954),
explained that the DOT's authority preempts
municipalities from exercising any control over the
establishment of state roads and bridges:
The boards of municipalities and counties of the
state are vested with no authority, duty or discretion
with reference to the location, designation and
construction of the state roads comprising the state
highway system.... The authority to exercise
discretion and make decisions is vested in the State
Road Department by the Legislature.
75 So.2d at 599. We agree that the discretionary
authority over the state road system still rests with the
DOT and reject the respondents' argument that the
present *676 statutory law of Florida grants authority
to a municipality to exercise control over the
Copr. ®West 1999 No Claim to Orig. U.S. Govt. Works
~'
526 So.2d 674
(Cite as: 526 So.2d 674, *676)
establishment of state roads and bridges.
[1] Although the primary responsibility for planning
the location of state roads and bridges rests with the
Department of Transportation, local governments are
required to develop and adhere to comprehensive
planning programs pursuant to the Local Government
Comprehensive Planning and Land Development
Regulation Act (Act) (codified at section
163.3161-.3215), section 163.3161, Florida Statutes
(1985). Among the issues to be included in a
community's plan are those issues addressing existing
and proposed transportation routes. The intent of the
Act was to encourage and assure coordination
between state and local levels of government in
planning and development activities. § 163.3164,
F1a.Stat. (1985). We see no reason to engage in an
analysis of each statutory provision cited by the
respective parties. A careful reading of the Act in
part materia with the Code reflects that local
governments and the DOT should cooperate and
coordinate their transportation planning efforts to the
greatest extent possible; but the Act does not divest
the DOT of its plenary power to plan and construct
state roads and bridges. By virtue of iu preemptive
authority, the DOT may route a state road bridge
through or into a municipality by way of a corridor
that conflicts with the municipality's comprehensive
growth plan. If the DOT was bound to build the
proposed bridge at the existing location in accordance
with the comprehensive plan of Ocean Ridge, then
the construction site of the bridge would be
inconsistent with the comprehensive plan of Boynton
Beach. Without this preemptive authority the DOT
would have no way to resolve any conflict between
the comprehensive plans of neighboring communities
with the respect to the location of state roads and
bridges.
[2] This is not to say, however, that the DOT's
power, while plenary, is absolute. We agree with the
fourth district court's reading of State of Florida v.
Florida State Improvement Comm'n., 75 So.2d I
(F1a.1954), that the power vested in the DOT is not
absolute and is limited to the lawful exercise of its
discretion. Its dictates can be overridden if they are
found to be without authority and constitute an abuse
of discretion. Webb at 599. The DOT must exercise
its discretion to devise plans and select sites that best
serve the public need. In so doing it is incumbent
Page 3
upon the DOT to comply with the relevant statutory
scheme authorizing the planning and construction of
our state roads and bridges, including the provisions
requiring public hearings and consideration of local
conditions.
While we agree that the power vested in the DOT is
limited to the lawful exercise of its discretion, we do
not agree with the fourth district that an examination
of the record in this case, consisting primarily of the
DOT's internal files, yields a finding that the DOTS
final order authorizing the bridge construction in the
new location was "clearly erroneous and constituted
an abuse of discretion." Although a hearing was held,
the parties stipulated that the only issue to be
addressed was the narrow point of law raised in the
respondents' motion for summary recommended
order--whether the DOT is precluded from choosing a
construction site for the proposed bridge that is
inconsistent with Ocean Ridge's comprehensive plan.
No factual findings were made regarding the
respondents' other allegations. Because a full
evidentiary hearing was never held in which the
respondents could present evidence to determine
whether the DOT abused iu discretion, it is not
possible to conclude the DOT's decision to relocate
the bridge was unlawful. Whether the DOT abused
its discretion is a question of fact that must be
determined in a full evidentiary hearing.
Accordingly, we agree with the fourth district that
the respondents were denied due process of law
because no full evidentiary hearing was held.
However, we disapprove of the district court's
analysis that an abuse of discretion has been shown.
This question of fact must be determined in a full
evidentiary hearing by a hearing *677 officer based
upon all of the evidence presented. Therefore, we
approve the decision of the district court to the extent
it is consistent with this opinion, quash that portion in
which the district court finds the Department of
Transportation abused its discretion, and remand for a
full evidentiary hearing.
It is so ordered.
McDONALD, C.J., and OVERTON, EHRLICH,
SHAW, BARKETT and GRIMES, JJ., concur.
END OF DOCUMENT
Copr. ®West 1999 No Claim to Orig. U.S. Govt. Works