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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