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HomeMy Public PortalAboutStipulated Settlement Agmt��EG( g IivfgoG SEPI�%����. 0 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, ) Petitioner, ) VS. ) CITY OF GULF STREAM ) Respondent. ) DOAH CASE NO. 89-5158GM STIPULATED SETTLEMENT AGREEMENT Petitioner Florida Department of Community Affairs (Department) and Respondent City of Gulf Stream (City) hereby stipulate and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes (1989). b. Agreement: This stipulated settlement agreement. C. Comprehensive Plan or plan: The Comprehensive Plan of the City of Gulf Stream, as adopted by Ordinance No. 89-4 on July 7, 1989. d. DOAH: The Florida Division of Administrative Hearings. e. In compliance or into compliance: Consistent with Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, 0 I Section 187.201, Florida Statutes, the Treasure Coast Florida Regional Policy Plan, as adopted by Rule 29K-5.001, Florida Administrative Code, and Chapter 9J-5, Florida Administrative Code. f. Notice: The notice of intent issued by the Department to which was attached its statement of intent to find the plan not in compliance dated August 31, 1989. g. Petition: The petition for administrative hearing and relief filed by the Department on September 20, 1989, that initiated proceedings before DOM in this case (Case No. 89- 5158GM). h. Remedial action: A remedial plan amendment, submission of support document or other action described in the statement of intent or this agreement as an action which must be completed to bring the plan into compliance. i. Remedial plan amendment: An amendment to the plan or support document, the need for which is identified in this agreement, including its exhibits, and which the City must adopt to complete all remedial actions. Remedial plan amendments adopted pursuant to this agreement must be consistent with and substantially similar in concept, intent and terms to the ones identified in this agreement or be otherwise acceptable to the Department. j. Statement of intent: The statement of intent to find the plan not in compliance dated August 31, 1989. k. Support document: The studies, inventory maps, Fa surveys, data, inventories, listings or analyses used to develop and support the plan adopted by the City on July 7, 1989. 2. Entire agreement. This is the entire agreement between` the parties and no verbal or written assurance or promise is effective or binding unless included in this document. 3. Approval by governing body. This agreement has been approved by the City governing body at a public hearing advertised in a quarter -page advertisement published approximately 14 days prior to the hearing in the manner and with the content prescribed for advertisements in Section 163.3184(15) (c), F.S. This agreement has been executed by the appropriate City officer as provided in the City's charter or other regulations. 4. Changes in law. Nothing in this agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence. 5. Other persons unaffected. Nothing in this agreement shall be deemed to affect the rights of any person under the law other than the parties. 6. Attorney fees and costs costs, including attorney fees. Each party shall bear its own 7. Public Records. The City shall allow public access to all documents, reports, papers, letters or other material, subject to the provision of Chapter 119, Florida Statutes, 3 prepared or received by the City in conjunction with this agreement. It is expressly understood that upon receipt of substantial evidence of the City refusal to comply with this provision, the Department will have the right to terminate this agreement for breach. E S. Liability. The City hereby agrees to hold harmless the Department, to the extent allowed and required by law, from all claims, demands, liabilities and suits of third persons or entities not a party to this agreement arising out of, or due to any act, occurrence, or omission of the City, its subcontractors or agents, if any, that is related to the City's performance under this agreement.• 9. Effective date. This agreement shall become effective upon the last date of signing by the parties. PART I 10. Purpose of Part I. The parties enter into Part I of this'agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the plan. 11. Department powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the plan is in compliance. 12. Exhibits. Exhibits A and B are hereby incorporated by reference. In the event of conflict between Exhibit A and 4 Exhibit B, the provisions of Exhibit B shall control. 13. Adoption of plan and support document. The City provided the support documents and adopted the plan by ordinance at a properly advertised public hearing held on July 7, 1989. 14. Review of plan and finding of noncompliance. After reviewing the adopted plan the Department issued its notice and statement of intent to find the plan not in compliance, and filed the petition in this case to that effect. 15. Standing to file notice and petition. The Department met the requirements of Section 163.3184(8), Florida Statutes, because it based its determination of compliance and its notice and statement of intent only on its written objections and recommendations to the plan pursuant to Section 163.3184(6), Florida Statutes, or on any changes made by the City to the plan as adopted. The Department was not requested by the City of Gulf Stream to attend the public hearing, thereby affording the Department standing to find the plan not in compliance pursuant to Section 163.3184(8)7 Fla. Stat. 16. Negotiation of agreement: intent. Subsequent to the filing of the petition the parties conferred and agreed to resolve the issues in the petition, notice and statement of intent through this agreement. It is the intent of this agreement to resolve fully all issues between the parties in this proceeding. 17. Dismissal recommendation. If the City completes the remedial actions required by this agreement, including the 5 t adoption of required plan amendments as set forth herein, the Department shall request that the Administration Commission enter an order dismissing this proceeding without imposing any sanction that might otherwise be imposed under the Act. Thereafter, the Department shall take every action necessary to effectuate this paragraph. 18. Filing and continuance. This agreement shall be filed with DOM by the Department after execution by the parties and shall constitute a joint request that DOM continue this proceeding for a time sufficient to allow the parties to complete their responsibilities under the agreement. However,'the Department may request DOM to schedule a hearing of this proceeding at an earlier time, as provided in this agreement. 19. Retention of right to final hearing. Both parties hereby retain the right to have a final hearing in this proceeding and nothing in this agreement shall be deemed a waiver of such right. 20. Description of provisions not in compliance and remedial actions; legal effect of agreement. Exhibit A to this agreement is the statement of intent and contains a description of the plan provisions found not in compliance by the Department and remedial action needed to bring the plan into compliance. It also constitutes an admission and stipulation by the Department that if the described remedial actions are accomplished the plan will be in compliance. Exhibit B contains additional detail regarding some provisions not in compliance and remedial actions 10 needed for compliance. In the event of a conflict between Exhibit A and Exhibit B, the provisions in Exhibit B shall control. 21. Remedial actions to be considered for adoption. The City agrees to adopt by formal action of its governing body all remedial actions described in Exhibit A (as modified by Exhibit B) no later than the time period provided for in this agreement. 22. Transmittal hearing for remedial actions. Within 60 days after the effective date of this agreement the City shall deliver to the Department, after a transmittal public hearing pursuant to Section 1!3.3184(3) of the Act, all remedial actions, including all remedial plan amendments and support documents, along with a transmittal letter describing the remedial action taken for each part of the plan amended, including references to specific portions and pages. 23. Review of transmittal. The Department shall provide the City with its objections, recommendations and comments on the remedial amendments and support documents in the manner provided in Chapter 9J-11, Florida Administrative Code, and Subsections 163.3184(3)-(7), Florida Statutes. If the City fails to deliver or rejects any remedial plan amendment or support document described in Exhibit A or Exhibit B, the Department may move for a final hearing for this proceeding as provided in Paragraph 9 above. 24. Adoption or approval of remedial plan amendments. Within 60 days after receipt of the Department's objections, 7 t recommendations and comments, the City shall consider for adoption all remedial plan amendments and amendments to the support document, and deliver the amendments and a transmittal letter to the Department as provided in Subsection 163.3184(7), Florida Statutes, and Rule 9J-11.011(3), F.A.C. The letter shall describe the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 25. Review of adoptions and notice of intent. Within 45 days after receipt of the adopted remedial plan amendments and support documents, the Department shall issue a notice of intent pursuant to Section M.3184, Florida Statutes, for the complete comprehensive plan, as amended, in accordance with this agreement. a. In compliance: If the adopted remedial actions are consistent with the recommendations in Exhibit A or Exhibit B, the Department shall find the plan and plan amendments in compliance and shall request that DOM relinquish jurisdiction and join the Department in requesting that the Administration Commission adopt a final order dismissing this proceeding. b. Not in compliance: If the remedial actions are not adopted, or are not consistent with and substantially similar to the recommendations in Exhibit A or Exhibit B, the Department shall issue a notice of intent to find the plan not in compliance and shall forward the notice to DOM for a hearing as provided in Subsection 163.3184(10), Florida Statutes, and request that the matter be consolidated with the pending proceeding for a single, 0 t final hearing. The parties hereby stipulate to that consolidation and to the setting of a single, final hearing. The, Department may also move for a final hearing of this proceeding as provided in Paragraph 19 above. In any proceeding under this paragraph, the City shall have the burden of proving by a preponderance of the evidence that an adopted remedial action is consistent with and substantially similar to the recommendations in Exhibit A or Exhibit B. 26. Waiver. The parties waive any right to appeal or initiate proceedings on, or to otherwise challenge on any ground in any forum, the plate as amended, so long as the provisions of this agreement are complied with. Both parties reserve the right to appeal the inclusion of any amendment to the plan that is not included in this agreement. 27. Concurrent amendment. Nothing in this agreement shall be construed to prohibit the amendment of the plan concurrent with•the adoption of this agreement. Part II 28: Purpose of Part II. The parties enter into Part II of this agreement to provide funding to assist the City to undertake the remedial actions necessary to bring the adopted plan submitted pursuant to Subsection 163.3167(2), F.S. and Chapter 9J-12, F.A.C. into compliance. 29. Availability of Funds. Payment of state funds pursuant to this agreement is subject to and conditioned upon the total 7 release of authorized appropriations from the Local Government Comprehensive Planning Assistance Program provided by Chapter 88- 555, Laws of Florida. The State of Florida's performance and I obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature as noted in Section 287.0582, Florida Statutes, 30. Consideration. a. As consideration for work performed under this agreement, the Department agrees to pay a fixed fee of up to $2,000.00. Payment will be based on the payment schedule contained in paragraph 31 below. b. Use of 'Funds: Funds may not be used for the purchase of equipment, fixtures, or other tangible property of a nonconsumable and nonexpendable nature with an expected useful life which exceeds the duration of this contract not be used for attorney fees. 31. Method of Payment. Deliverable Due Date Proposed remedial action Adopted remedial action Total No later than 60 days after execution Of agreement Funds may also Payment $ 1,000.00 No later than time $ 1,000.00 frames specified in s. 163.3184(7), F.S. for transmittal of adopted plan amendments $ 2,000.00 The first payment will be made by the Department after receipt of the deliverable which will be verified by the r11f: Department to include all required proposed remedial action. The final payment will be made after receipt of the adopted remedial actions and issuance by the Department of a Notice of Intent to find the plan in compliance. 32. Audit Reouirements. a. The City agrees to maintain adequate financial procedures and adequate support documents to account for the expenditures of funds under Part II of this agreement. b. These records shall be available at all reasonable times for inspection, review, or audit by state personnel and other personnel duly authorized by the Department. "Reasonable" shall be construed according to circumstances, but ordinarily shall mean normal business hours of 8:00 a.m, to 5:00 p.m., local time, Monday through Friday. C. The City shall also provide the Department with the records, reports or financial statements upon request for the purposes of auditing and monitoring the funds awarded under Part II of this agreement. d. The City shall include an accounting of these funds under Part II of this agreement in the local audit prepared by the City of the 1989-90 and 1990-91 fiscal years. e. In the event the audit shows that all or a portion of the funds provided under Part II, were not spent in accordance with Chapter 9J-26, Florida Administrative Code, and the conditions of this agreement, the City shall be held liable for repayment to the Department of all funds not spent in accordance 11 with these applicable regulations and agreement provisions within thirty (30) days after the Department has notified the City of such noncompliance. f. The City shall retain all financial records, supporting documents, statistical records, and any other documents pertinent to Part II of this agreement for a period of three years after the date of submission of the final expenditures report or, if an audit has been initiated and audit findings have not been resolved at the end of three years, the records shall be retained until resolution of the audit findings. 33. Modification of Part II. Either party may request modification of the provisions of Part II of this agreement. Changes which are mutually agreed upon shall be made by written correspondence from the Department, by the parties and incorporated as part of this agreement. This agreement contains all the terms and conditions agreed to by the parties. 12 t In witness whereof, the parties hereto have caused this agreement to be executed by their undersigned officials as duly authorized. DEPARTMENT OF COMMUNITY AFFAIRS CITY OF GULF STREAM t Thomas G. Pelh �— - �— Secretary � ,'D C -- Date Senior Attorney 13 -2 /ySa Die Attest: STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS IN RE: TOWN OF GULFSTREAM ) COMPREHENSIVE PLAN ) ADOPTED BY ORDINANCE ) NO. 189-4 ON ) DOCKET NO. 89-NOI-5013-(N) JULY 7, 1989 ) STATEMENT OF INTENT TO FIND COMPREHENSIVE PLAN NOT IN COMPLIANCE The Florida Department of Community Affairs hereby issues its Statement of Intent to find the Comprehensive Plan of the Town of Gulfstream adopted by Ordinance No. 89-4 on July 7, 1989, Not In Compliance based upon the material in the Objections, Recommendations and Comments Report issued by the Department on May 12,_1989, which is hereby incorporated by reference, and changes made to the plan as adopted that were not previously reviewed by the Department. The Department finds that the plan is not "in compliance,," as defined in Section 163.3184(1)(b), 11 Florida Statutes (F. S.), because it is not consistent with - Section 163.3177, F.S., the State Comprehensive Plan, the Treasure coast Comprehensive Regional Policy Plan, or Chapter 9J-5, Florida Administrative Code (F.A.C.), for the following reasons: EXHIBIT "A" C I. WATER CONSERVATION A. Inconsistent Provisions. The inconsistent provisions t of the plan grouped under this subject heading are as follows: 1. Objective 4.D.1.3 and Policies 4.D.1.3.1, 4.D.1.3.2 and 4.D.1.3.3 of the Infrastructure Element) do not sufficiently address requirements that an objective and policies be established to conserve potable water. (Rules 9J -5.011(2)(b) 4. and 9J -5.011(2)(c)3., F.A.C.). Most of the water usage of the Town is attributable to irrigation of private residences; however the Town states that by 1995, it will investigate and implement strategies for the reduction of the use of potable water for irrigation without any justification as to why the Town cannot implement conservation techniques in a more timely manner. 2. The Town adopted two level of service (IAS) standards for potable water (Policy 4.D.1.1.1 and 4.D.1.1.2, page 4D-11 of the Infrastructure Element). The Town has not designated which LOS will be utilized for the purposes of the issuance of development orders and permits, nor does adoption of such high level of service standards demonstrate regard for water conservation. B. Recommended remedial actions. These inconsistencies may be remedied by taking the following actions: 1. Revise Objective 4.D.1.3. to include an earlier date for the investigation and implementation of strategies to reduce the use of potable water for irrigation. Establish a specific and measurable objective -addressing the conservation of potable water resources. c 2. Revise Policy 4.D.1.3.3 to include an earlier date for the investigation of methods for the reduction of the use of potable water for irrigation. Include a specific policy that states how and when these methods will be implemented. 3. Revise the adopted IAS standard for potable water to one that will commit the Town to implementing water conservation methods. The Town should consider adopting a tiered LOS standard that will allow for "phasing" of water conservation over a period of time. II. REGIONAL POLICY PLAN AND STATE COMPREHENSIVE PLAN A. Inconsistent provisions. The inconsistent provisions of the plan grouped under this subject heading are as follows: 1. The plan conflicts with and does not further Goal a (Water Resources), Policy 11 of the State Comprehensive Plan and Policy 8.1.1.6 of the Treasure Coast Regional Policy Plan. B. Recommended remedial actions. These inconsistencies may be remedied by taking the following actions: 1. The Town should revise the applicable objective and policies to address the development and implementation of water conservation programs. CONCLUSIONS OF LAW Based upon these findings, the Department makes the following conclusions of law: 1. The plan is not consistent with the Treasure Coast Comprehensive Regional Policy Plan. Plan. t 2. The plan is not consistent with the State Comprehensive 3. The plan is not consistent with the requirements of Chapter 9J-5, Florida Administrative Code. 4. The plan is not consistent with the requirements of Section 163.3177, Florida Statutes. 5. The plan is not "in compliance," as defined in Section 163.3184(1)(b), F.S. 6. In order to bring the plan into compliance, the City may complete the recommended remedial action described or adopt other remedial actions that eliminate the inconsistencies. Executed this day of August, 1989, at Tallahassee, Florida. FLORIDA DEPARTMENT OF COMMUN TY AFFAIRS Paul R. Bradshaw Division Director Division of Resource Planning and Management 2740 Centerview Drive Tallahassee, Florida 32399-2100 EXHIBIT B GOAL 4. D. 1. i = yNSURS p B f F W T CD F -AG I T TIES ARE A 12RQV l nC n 1. HIGH COMPLY W;T-H DTT APPLICABLE DCRNT 11TIONG r * m Tgr HE GN -;RRENT ANDF T#iFiQF GULF 64449AM, TO REDUCE PER CAPITA POTABLE WATER CONSUMPTION BY 50$ IN THE NEXT TEN YEARS PRIMARILY THROUGH THE IMPLEMENTATION OF VOLUNTARY CONSERVATION TECHNIQUES Objective 4.D.1.1. The level m.�- •i - Ctab1+ hen + ^la1l ^���ac�d, Achieve the following reductions in the per capita consumption of potable water through the implementation of voluntary programs for existing development and mandatory water conservation programs for new development and redevelopment. FISCAL YEAR REDUCTION GOAL B. 1993 20$ U ss than that found in fiscal 1988-89 b. 1995 30% less than that found in fiscal 1988-89 C. 1998 40% less than that found in fiscal 1988-89 d. 2000 50t less than that found in fiscal 1988-89 Policy 4.D.1.1.1. ThG wawa -Rh 11 adgpt =nRUal potable eter... 1 1 sv..�_.•4. e t Aor-A me 1 n01per- Gapita par.: + � oo s o n �l-lon day Within one year of the .adoption of a plan amendment, the Town. shell design and implement the following water conservation education programs: a. Conduct a water conservation workshop _Inv olving water use and irrigation specialists who will provide practical information on how to conserve water on a daily basis and how to efficiently operate irrigation systems Such a program may be co-produced with the South Florida Water Management M strict, the City of Delray 8 a h and/or other coastal communities wi h high Rer capita water consumption rates b. Provide irrigation experts at a reduced fee for individual consultations, c. Provide, through the mail, --quarter] y updates of water Conservation coals the sueco^s of on-going programs, and new ..water -saving techniques and strategies Such updates should .. coordinated with Changes in season and recommend ..;appropriate irrigation adjustments Policy 4.D.1.1.2. o.Pt a pe day. Within one year of the adoption of a plan amendment the Town shell meet individually with all non-residential water users and the top 5t Of residential water users to identify and agree upon the implementation of specific water reduction programs and aoals which may include: a. The identification and use of alternative (non -potable) water sources, where available. b. Specific operational changes which will reduce the amount of water consumed in activities such as dish washing building maintenance. and vehicle washing C. Limiting the number of days, time of day and/or length of time in which irrigation systems are operated d. Retrofitting existing systems such as shower heads sink faucets, toilets, and wash basins with new water -saving devices. e.RatrofittIng existing irrigation evatems with water saving Slevices such as drip lines timers and tensiometers In all: cases..r xpenditures made by the water consumer shall be reasonabIs in terms of the benefits received as measured by the actual amount o£ water saved the dollar amount saved and the publicl recognition receiv d. However, a cost benefit ratio of 1.0 shall not constitute the sole definition of reasonablp,. All consumers that:are a art of this Program shall receive quarterly updates on thoir progress toward the agreed upon goal Policy 4.D.1.1 3.: �h--sepr T+..w,��Y Within .on ear of the adoption of a plan amendment ado t and implement the followinv regulations which shall apply to new development and redevelopment: he use of xerisca a and native vegetation on a portion of kl.(Lv_elopment sites:, b. The uze of soil tensiometers or similar control mechanisms in all irrigation systems C. The use of in-home water saving Plumbing devises such as low volume show heads and toilets Policy &.D.1.1.4.: rs—fGr- rAauayppmsat—shn" t mt hP +. ,—WhiGl; WOO faai�itie� a 1.. .ti t atgndar-ds adopted €ar—the—Tew-, i :^Fthgnuh elGmor*z A representative of the Town of Gulf Stream shall meet annually with the City of Delray Beech to discuss potable water elated Igaues, ing3 din the OSveloPment of a e9tewater r use or gray-water.system Objective -4.D.1 2 The —Tawe . e ' stanslarda— Ub--Gare maln,.e+^a.a I£_a reduction in water consumption set forth in Objective 4.D.3.3. is not aQhicved by the corresponding Fiscal Year.. the Town shall adopt and implement mandatory reduction Programs- within one year which will result in achieving the reduction goal Oet forth by the next calendar year and to achieve an.overall reduction goal of 50% by Fiscal Year 2000 Policy d D.1.2.1.: The Tara 3h&II—, and bicae by th QuVr . f Mandatory programs to be considered by the Town include. a. An ordinance rostricting the number of days, time of an length of operation_of all_ irrigation systems_ b. An ordinance which establishes a maximum water allocation for eech use such that those who consume more than the allot ted amount shall be subject to fines c. Adoption of a "inverted" rate structure such that the price of water increases Rroportionately with amount consumed. d. Adoption of water use restrictions on a permanent basis n t t ., t n t "" n„t-.�._4�Seaob €ar-�,�-.o-- #-mpr�vemen aLmeuL--al-aR� #enititlep ' 4ia to t i..rJ ..nom ..t-..� fii1B8S8� Objective 4_D_]_4 • R51995, chn TQWn--Bba11 dR;;Rrt4g--- 4RPIBMB J C F .. As cart of the required five-year Evaluation and Appraisal Report (EAR) to be conducted in 1995 the Town-shall-eoecifically evaluate all on-going water conservation programs-. Policy 4.D_1..3.1.: �g req-ui'remants €es thus The EAR shall identifv all on-going water conservation programs and evaluate them for - their- effectiveness in achieving the conservation goals established by this plan Policy 4.D.1.3.2.: ; OF' thS 'n;.m eve!Gpment--egulati-ens to fnal-e - the use e€ ae## tsr�ens#omete�. similar dev;Lomu, in R13 s. The EAR shall include e review of additional water conservation techniques that are Potentially applicable to the Town and recommend adoption of those deemed aoorooriate. Policy 4.D.1.3.3.: Aynateber-_:^, .._ _-_____--_._-__...---_...._.-_•ter:[el3c�T+s�7T C C n,,, , , i org 4 D 3 prr4-4 � , o �, i -e -sub -element The EAR &hall include an analysis of water consumption rates found in other communities. in -Florida ang3 compere them with those found in Gulf Stream. Significant differences shall be analyzed to determine if additional conservation measures_ should be implemented in Gulf Stream. Policy 4.D.1.3.4.: The LAR shall recommend a new water reduction schedule far -the following ten years. Objective 4.D:1.4.; The level of service standards established in this sub -element shall be achieved end maintained Policy The Town shall adopt an average annual potable water level of service standard of 800 gallons per capita per day through Fiscal Year 1993 This level is consistent with the 20k water consumption reduction goal established in Objective 4.D.1.1. Policy 4.D.1.4.2.: The Town shall adopt an average annual potable water level of service_standard of700 gallons per Capita oer.day_ beginnina in Fiscal Year 1995. This level is consistent with the 30% water consumption reduction goal established in Objective 4.D.1.1. Policy 4.D.1.4.3.: The Town shall adopt an average annual potable water level of service standard of 600 gallons per capita per day beginning in Fiscal Year 1998 This level is consistent with the 40%- water consumption reduction goal established in Objective 4.D.1.1. Poliov 4.D.1.4.4,: The Town shall adopt on averaae annual potable water level of__service standard of 500 oallons per capita_par da beginning in Fiscal Year 2000.- This level is consistent with the 50% water consumption reduction QQaI__established in Obieetive 4.D.1.1. c:\jaj\13147_1\g2.mis