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Agenda 09/15/2009 Item #17A Agenda Item No. 17 A September 15, 2009 Page 1 of 38 EXECUTIVE SUMMARY Recommendation to have the Board of County Commissioners review and approve a Compliance Agreement between the Florida Department of Community Affairs and Collier County, setting forth a proposed Remedial Amendment relating to public schools in the Capital Improvement Element of the Growth Management Plan, Ordinance 89-05, as amended (Companion Item to 17B). OBJECTIVES: For the Board of County Commissioners (BCC) to review and approve a Stipulated Settlement Agreement (Compliance Agreement) between the Florida Department of Community Affairs (DCA) and Collier County adopting a remedial amendment relating to public schools in the Capital Improvement Element (CIE) of the Collier County Growth Management Plan (GMP) - and approve its transmittal to the Department of Community Affairs. Together, the Compliance Agreement along with its companion Ordinance for the remedial CIE amendment, restore the Growth Management Plan to being "In Compliance". CONSIDERA TIONS: >- On February 24, 2009, the BCC adopted its annual update to the Capital Improvement Element (CIE) by Ordinance No. 09-07. The ordinance along with the amended CIE materials as approved by the Board were transmitted to the DCA for their review, and on May 19, 2009, the DCA rendered a ruling finding certain CIE amendments relating to public schools not in compliance and in doing so issued a Notice of Intent (NOT) and a Statement of Intent (SOl). In order to resolve and correct the noted inconsistencies, staff subsequently drafted the proposed remedial CIE amendments consistent with DCA's proposed compliance agreement. Provided with this Executive Summary are copies of the materials to be transmitted to the DCA, and include the Stipulated Settlement Agreement (Compliance Agreement), as first-signed by DCA personnel, and the DCA's "Statement of Intent to find a Portion of Comprehensive Plan Amendments Not In Compliance" (Statement ofIntent). Approval of the compliance agreement will allow the BCC to consider and adopt the companion Ordinance for the remedial CIE amendment. The remedial CIE amendment will remedy all inconsistencies between the Public Schools Facilities Element, the Capital Improvement Element and the Inter-local Agreement previously entered into between the BCC and School District. Stated succinctly, the inconsistencies cited had to do with funding for offsite improvements associated with the construction of new schools. This af,lTeement merely aligns the CIE with the Public Schools Facilities Element of the GMP and the Inter-local Agreement recently approved by the Board. The issues related to offsite improvements will still need to be addressed through the adoption and implementation of a new School Board Review (SBR) Process between Collier County and the District School Board of Collier County. The temporary absence of a School -, - 1 - Agenda Item No. 17A September 15, 2009 Page 2 of 38 Board Review Process is not overly problematic as there are no major public school facility improvements identified in the District School Board's Five-Year Capital Improvement Program. In its Statement of Intent, the DCA identified the issues of inconsistency and recommended specific action to the County with respect to remedying these inconsistencies, stating, "Delete the amendments to Objective 2 and Policy 5.4 from the Comprehensive Plan. " These deletions clarify that any future offsite improvements for future schools will be done in accordance with the Inter-local Agreement that the BCC has previously entered into with the School District. The amendments will also insure that the Public Schools Facilities Element, the Capital Improvement Element and the aforementioned Inter-local Agreement are consistent with each other. Finally, adopting the remedial amendment will allow the County to avoid a potential costly Administrative Hearing. Legal notice has been placed in the Naples Daily News to meet the public hearing notice requirement for the Board of County Commissioners (BCC) meeting on September 15, 2009. In this hearing, the BCC will consider and approve the Compliance Af,rreement as prepared and signed first by the Department of Community Affairs. Upon the execution and endorsements by the BCC, the Compliance Agreement and the Ordinance for the remedial Capital Improvement Element amendment will be forwarded to the Department of Community Affairs. It should be noted that upon receipt by DCA that any affected party has 30 days to appeal the amendment to the CIE. This is unlikely as the DCA, School District, and Collier County would all be in agreement after the BCC's approval of the Compliance Agreement and CIE Amendment. FISCAL IMPACT: There is very little potential for fiscal impacts to Collier County resulting from these proposed remedial CIE amendments. No public school facilities are scheduled for development and construction during the 5-year CIE Schedule of Capital Improvements. Therefore, the likelihood that the County would realize any potential fiscal impact is highly improbable. GROWTH MANAGEMENT IMPACT: The purpose of this hearing is to consider entering into a Compliance Agreement with DCA in which Collier County would commit to adopt a remedial amendment to the Collier County Growth Management Plan based upon the Statement of Intent to find certain amendments to the CIE adopted February 24,2009 to be "Not In Compliance". DCA personnel reviewed and signed the Compliance Agreement in advance of County staff drafting the remedial CIE amendment and presenting it to the Bee. -, LEGAL CONSIDERATIONS: - 2- Agenda Item No. 17A September 15, 2009 Page 3 of 38 The DCA has found a portion of the County's CIE in non-compliance. The proposed Stipulated Settlement Agreement will resolve the issue. The DCA has already signed the Agreement. Once the DCA-signed Agreement is approved by the BCC at this meeting, the Board may, at this same meeting, proceed with the Ordinance for the remedial CIE amendment. When the remedially amended CIE is found "In Compliance" by the DCA, the Florida Department of Administrative Hearings (DOAH) case will be dismissed. This item is not quasi-judicial and as such, ex parte disclosure is not required. This item requires a majority vote only. (STW) RECOMMENDATIONS: That the Board of County Commissioners enter into the Agreement with the DCA and in doing so recognize that the stipulated Settlement Agreement effectively addresses each issue identified in the Statement of Intent (Attachment A) issued by the DCA. PREPARED BY: Corby Schmidt, AICP, Principal Planner Comprehensive Planning Department ,...--, - 3 - Item Number: Item Summary: Meeting Date: ~ al:;"" J Vi ~ Agenda Item No. 17A September 15, 2009 Page 4 of 38 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 17A A Recommendation to Review and Approve a Compliance Agreement between the Florida Department of Community Affairs and Collier County, setting forth a proposed Remedial Amendment relating to public schools in the Capital Improvement Element of the Growth Management Plan, Ordinance No. 89-05, as amended (Companion item to 17B) 9/15/2009 9:00:00 AM Prepared By Corby Schmidt Community Development & Environmental Services Principal Planner Date Comprehensive Planning 7/30/2009 1 :16:54 PM Approved By Randall J. Cohen Community Development & Environmental Services Comprehensive Planning Department Director Date Comprehensive Planning 8/13/20092:28 PM Approved By Judy Puig Community Development & Environmental Services Operations Analyst Community Development & Environmental Services Admin. Date 8/20/2009 4: 11 PM Approved By Heidi F. Ashton County Attorney Assistant County Attorney Date County Attorney Office 8/25/20094:00 PM Approved By David Weeks, AICP Community Development & Environmental Services Chief Planner Date Comprehensive Planning 8/26/200910:22 AM Approved By Jeff Klatzkow County Attorney County Attorney Date County Attorney Office 8/26/20092:36 PM Approved By Joseph K. Schmitt Community Development & Environmental Services Community Development & Environmental Services Adminstrator Date Community Development & Environmental Services Admin. 8/27/2009 2:42 PM Approved By OMS Coordinator OMB Coordinator Date ..Ie ......b""' ___ '-'.J..___ Agenda Item No. 17 A September 15, 2009 Page 5 of 38 County Manager's Office Office of Management & Budget 8/27/2009 3:22 PM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 8/27/20094:35 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County Commissioners County Manager's Office 9/4/20092:59 PM .c:l_.lln.\ A ____...1_~__..L,________.....\1,...,A C1_ 1r .......^^^\11""'f '-'TT'ifll.ll,,....,.,.T, ,........,........,.TT""!. ~\..._~,..._........... Agenda Item No. 17 A September 15, 2009 Page 6 of 38 " "') > I...-.....:Jc STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS (- 0" DEPARTMENT OF COMMUNITY AFFAIRS, ~ Petitioner, v. DOAH Case No. 09-3033GM COLLIER COUNTY, Respondent, / STIPULATED SETTLEMENT AGREEMENT THIS STIPULATED SETTLEMENT AGREEMENT is entered into by and between the State of Florida, Department of Community Affairs, and Collier County as a complete and final settlement of all claims raised in the above-styled proceeding. RECITALS WHEREAS, the State of Florida, Department of Community Affairs (DCA or Department), is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes; and WHEREAS, Collier County (Local Government) is a local government with the duty to adopt comprehensive plan amendments that are "in compliance;" and WHEREAS, the Local Government adopted Comprehensive Plan Amendment 09-CIE 1 (Plan Amendment) by Ordinance No. 09-07 on February 24, 2009; and WHEREAS, the Plan Amendment updated the Capital Improvements Element of the County's comprehensive plan; and WHEREAS, the Department issued its Statement of Intent on May 19, 2009 and - published its Notice of Intent regarding the Amendment on May 20, 2009; and r'... ) - ./ C) C) r..,-, -::7 -,; :~',~ -< ~:f, " . ~~ 0_..-' 22r .,;;:- ,-n Cl' Cr"l Agenda Item No. 17 A September 15, 2009 Page 7 of 38 WHEREAS, as set forth in the Statement of Intent, the Department contends that the Amendment is not "in compliance" because ofthe inconsistent provisions in Objective 2 and Policy 5.4; and WHEREAS, pursuant to Section 163.3184(10), Florida Statutes, DCA has initiated the above-styled formal administrative proceeding challenging the Amendment; and WHEREAS, the Local Government disputes the allegations of the Statement of Intent regarding the Amendment; and WHEREAS, the parties wish to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the terms set forth herein, arid agree it is in their respective mutual best interests to do so; NOW, THEREFORE, in consideration of the mutual covenants and promises hereinbelow set forth, and in consideration of the benefits to accrue to each of the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereby represent 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. b. Agreement: This stipulated settlement agreement. c. Comprehensive Plan Amendment or Plan Amendment: Comprehensive plan amendment 09-CIEl adopted by the Local Government on February 24,2009, as Ordinance No. 09-07. d. DOAH: The Florida Division of Administrative Hearings. e. In compliance or into compliance: The meaning set forth in Section 163.3184(1)(b), Florida Statutes. 2 Agenda Item No. 17A September 15, 2009 Page 8 of 38 f. Notice: The notice of intent issued by the Department to which was attached its statement of intent to fmd the plan amendment not in compliance. g. Petition: The petition for administrative hearing and relief filed by the Department in this case. 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 amendment into compliance. 1. 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 local government must adopt to complete all remedial actions. Remedial plan amendments adopted pursuant to this Agreement must, in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this Agreemen~ or be otherwise acceptable to the Department. J. Statement of Intent: The statement of intent to fmd the Plan Amendment not in compliance issued by the Department in this case. k. Support Document: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the Plan Amendment or Remedial Plan Amendment. 2. 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 Amendment is in compliance. 3. Negotiation of Agreement. The Department issued its Notice and Statement of Intent to fmd the Plan Amendment not in compliance, and filed the Petition in this case to that effect. 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. 3 Agenda Item No. 17 A September 15, 2009 Page 9 of 38 4. Dismissal. If the Local Government completes the Remedial Actions required by this Agreement, the Department will issue a cumulative Notice of Intent addressing both the Remedial Plan Amendment and the initial Plan Amendment subject to these proceedings. The Department will file the cumulative Notice of Intent with the DOAH. The Department will also file a request to relinquish jurisdiction to the Department for dismissal of this proceeding or for realignment of the parties, as appropriate under Section 163.3184(16)(f), Florida Statutes. 5. Description of Provisions not in Compliance and Remedial Actions: Legal Effect of Agreement. Exhibit A to this Agreement is a copy of the Statement of Intent, which identifies the provisions not in compliance. Exhibit B contains Remedial Actions needed for compliance. Exhibits A and B are incorporated in this Agreement by this reference. This Agreement constitutes a stipulation that if the Remedial Actions are accomplished, the Plan Amendment will be in compliance. 6 Remedial Actions to be Considered for Adoption. The Local Government agrees to consider for adoption by formal action of its governing body all Remedial Actions described in Exhibit B no later than the time period provided for in this Agreement. 7 Adoption or Approval of Remedial Plan Amendments. Within 60 days after execution of this Agreement by the parties, the Local Government shall consider for adoption all Remedial Actions or Plan Amendments and amendments to the Support Documents. This may be done at a single adoption hearing. Within 10 working days after adoption of the Remedial Plan Amendment, the Local Government shall transmit 3 copies of the amendment to the Department as provided in Rule 9J-l1.011(5), Florida Administrative Code. The Local Government also shall submit one copy to the regional planning agency and to any other unit of local or state government that has filed a written request with the governing body for a copy of the Remedial Plan Amendment and a copy to any party granted intervenor status in this proceeding. The Remedial Plan Amendment shall be transmitted to the Department along with a letter which describes the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 4 Agenda Item No. 17 A September 15, 2009 Page 10 of 38 8. Acknowledgment. All parties to this Agreement acknowledge that the "based upon" provisions in Section 163.3184(8), Florida Statutes, do not apply to the Remedial Plan Amendment. 9. Review of Remedial Plan Amendments and Notice of Intent. Within 30 days after receipt of the adopted Remedial Plan Amendments and Support Documents, the Department shall issue a Notice of Intent pursuant to Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this Agreement. a. In Compliance: If the adopted Remedial Actions satisfy this Agreement, the Department shall issue a cumulative Notice of Intent addressing both the Plan Amendment and the Remedial Plan Amendment as being in compliance. The Department shall file this cumulative notice with DOAH and shall move to realign the parties or to have this proceeding dismissed, as may be appropriate. b. Not in Compliance: If the Remedial Actions do not satisfy this Agreement, the Department shall issue a Notice of Intent to fmd the Plan Amendment not in compliance and shall forward the notice to DOAH for consolidation with the pending proceeding. 10. Effect of Amendment. Adoption of any Remedial Plan Amendment shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. 11. Purpose of this Agreement: Not Establishing Precedent. The parties enter into 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 Amendment. The acceptance of proposals for purposes of this Agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local government. 5 Agenda Item No. 17 A September 15, 2009 Page 11 of 38 12. Approval by Governing Body. This Agreement has been approved by the Local Government's governing body at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general circulation in the manner prescribed for advertisements in Section 163.3184(16)(c), Florida Statutes. This Agreement has been executed by the appropriate officer as provided in the Local Government's charter or other regulations. 13. 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 and shall be deemed incorporated in this Agreement by reference. 14. Other Persons Unaffected. Nothing in this Agreement shall be deemed to affect the rights of any person not a party to this Agreement. This Agreement is not intended to benefit any third party. 15. Attorney Fees and Costs. Each party shall bear its own costs, including attorney fees, incurred in connection with the above-captioned case and this Agreement. 16. Effective Date. This Agreement shall become effective immediately upon execution by the Department and the Local Government. 17. Filing and Continuance. This Agreement shall be filed with DOAR by the Department after execution by the parties. Upon the fIling of this Agreement, the administrative proceeding in this matter shall be stayed by the Administrative Law Judge in accordance with Section 163.3184(16)(b), Florida Statutes. 18. Retention of Right to Final Hearing. Each party hereby retains the right to have a fmal hearing in this proceeding in the event of a breach of this Agreement, and nothing in this Agreement shall be deemed a waiver of such right. Any party to this Agreement may move to have this matter set for hearing if it becomes apparent that any other party whose action is required by this Agreement is not proceeding in good faith to take that action. 19. Construction of Agreement. All parties to this Agreement are deemed to have participated in its drafting. In the event of any ambiguity in the terms of this Agreement, the 6 Agenda Item No. 17 A September 15, 2009 Page 12 of 38 parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question. 20. 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. 21. Governmental Discretion Unaffected. This Agreement is not intended to bind the Local Government in the exercise of governmental discretion which is exercisable in accordance with law only upon the giving of appropriate public notice and required public hearings. 22. Multiple Originals. This Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 23. Captions. The captions inserted in this Agreement are for the purpose of convenience only and shall not be utilized to construe or interpret any provision of this Agreement. 7 Agenda Item No. 17 A September 15, 2009 Page 13 of 38 In witness whereof, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. DEPARTMENT OF COMMUNITY AFFAIRS Approved as to form and legality: By: C h J.A J\~ Charles Gauthie~ector Division of Community Planning Lynette N Assistant General Counsel h } Iu--/~ to -\ 2 - 0 ~ Date Date COLLIER COUNTY ATTEST: DWIGHT E. BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA DONNA FIALA, CHAIRMAN Date Date Approved as to form and legality: Assistant County Attorney Date 8 Agenda Item No. 17 A September 15, 2009 Page 14 of 38 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS ) EXHIBIT A IN RE: COLLIER COUNTY COMPREHENSIVE PLAN AMENDMENTS 09-1CIE; AMENDING THE CAPITAL ocket No. 09-CIE1-NOI-1101 IMPROVEMENTS ELEMENT STATEMENT OF INTENT TO FIND A PORTION OF COMPREHENSIVE PLAN AMENDMENTS NOT IN COMPLIANCE The Florida Department of Community Affairs, pursuant to Section 163.3184(10), Florida Statutes, and Rule 9J-l 1.012(6), Florida Administrative Code (F.A.C.), hereby issues this Statement of Intent to find a portion of the Comprehensive Plan Amendment 09-CIEl ("Amendments") adopted by Collier County in Ordinance No. 09-07 on February 24, 2009, Not In Compliance. The Department finds that a portion of the Amendments are not "in compliance," as that tenn is defmed in Section 163.3184(1)(b), Florida Statutes (F.S.), for the following reasons: I. CAPITAL IMPROVEMENTS ELEMENT AMENDMENT OBJECTIVE 2 AND POLICY 5.4 A. Inconsistent Drovisions. The inconsistent provisions of the Amendments under this subject heading are as follows: Collier County had previously amended the Collier County Growth Management Plan ("Comprehensive Plan") in October 2008 (Ordinance Number 08-55; Department Number 08- PEFEI) to address public school facility planning and school concurrency. Collier County executed the "Interlocal Agreement For Public School Facility Pl~ning And School Concurrency" ("School Interlocal Agreement") in October 2008 with the District School Board Agenda Item No. 17 A September 15, 2009 Page 15 of 38 of Collier County ("School District") to address the requirements of Section 163.31777, F.S. In part, the amended Comprehensive Plan adopted by Ordinance Number 08-55 established the Public School Facilities Element, level of service standards for public school facilities, and established plan policies tor off. site infrastructure improvements to support school facilities. Pursuant to Section 163.3177(l2)(c), F.S., the public school facilities element shall be based upon data and analysis, which must include the interlocal agreement adopted pursuant to Section 163.31777, F.S. The School Interlocal Agreement is data and analysis intended to support the Comprehensive Plan, including the Public School Facilities Element, Capital Impro~ements Element, and Intergovernmental Coordination Element. The amendment (Ordinance No. 09-07) to Capitallmprovements Element Policy 5.4 provides that "requisite o.tf.site improvements" are included as part of the necessary capital facilities and services that are to be considered when determining concurrency regarding the public school facilities level of service standards. Thus, the amended Policy 5.4 makes "requisite off.site improvements" a part of the school level of service standards. The school level of service standards established in Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and the School Interlocal Agreement (Sections 13.2 and 14) are based upon permanent Florida Inventory of School House (FISH) capacity as follows: 95% of permanent FISH capacity for elementary school concurrency service areas; 95% ofpennanent FISH capacity for middle school concurrency service areas; and 1 00% of permanent FISH capacity for high school (;oncurrency service areas. Intergovernmental Coordination Element Policy 2.6 requires Collier County to coordinate with the Collier County School District for collaborative planning and decision making on the location and extension of public facilities subject to concurrency and to support existing and proposed public educational facilities in 2 Agenda Item No. 17 A September 15, 2009 Page 16 of 38 accordance with the School Interlocal Agreement. The school level of service standards established in Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and .the School Interlocal Agreement do not include "requisite off-site improvements." Therefore, the amendment to Capital Improvements Element Policy 5.4 is internally inconsistent with Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and Intergovernmental Coordination Element Policy 2.6 regarding the school level of service standards. In addition, the amendment to Capital Improvements Element Policy 5.4 does not establish meaningful and predictable guidelines and standards defining "requisite off-site improvements" in order to guide the concurrency detennination regarding the level of service standards. Because the amendment to Capital Improvements Element Policy 5.4 is inconsistent with the Interlocal School Agreement (Sections 13.2 and 14), Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and Intergovernmental Coordination Element Policy 2.6, the several elements (Capital Improvements Element, Public School Facilities Element, and Intergovernmental Coordination Element) of the Comprehensive Plan are not consistent and coordinate~ and therefore the amendment to Policy 5.4 is inconsistent with the requirements of Section 163.3177(2), F.S., and Rule 9J-5.005(5), F.A.C. The amendment to Capital Improvements Element Policy 5.4 is not supported by best available relevant and appropriate data and analysis because the amended Policy S.4 is inconsistent with the School Interlocal Agreement (Sections 13.2 and 14) regarding school level of services standards. The amendment to Capital Improvements Element Policy 5.4 is not supported by relevant and appropriate data and analysis identifying whether any requisite ofT-site improvements are needed to achieve and maintain the amended level of service standard of 3 Agenda Item No. 17 A September 15. 2009 Page 17 of 38 Policy 5.4 and demonstrating that the requisite off-site improvements are included in a financially feasible Schedule of Capital Improvements in the Capital Improvements Element. The amendment to Capital Improvements Element Policy 5.4 makes the school level of service standards in Policy 5.4 inconsistent with statutory requirements (Sections 163.3177(12) and 163.3180(13), F.S.) to have uniform district-wide (school district-wide) level of service standards for school concurrency because the local government comprehensive plans other local governments in Collier County do not include plan policy provisions consistent with the amendment language of Policy 5.4. Therefore, the amendment to Capital Improvements Element Policy 5.4 is not consistent with the following requirements: Rules 91-5.005(2), (3), (5) and (6); 9J-5.015(3)(b)l; 9J- 5.015(3)(c)1., and 11.; 9J-5.016(1), (2), (3) and (4); 9J-5.02S(2)(f); 9J-5.025(3)(b)1., 2., 3., and 5.; 9J-5.025(3)(c)2., 5., and 7., F.A.C.; and Sections 163.3177(2), (3), (8), and (10)(e); 163.3177(4)(a); 163.3177(6)(h); 163.3177(12); 163.3177(12)(c) and (g); 163.3180(13); 163.3180(13)(a), (b), (d), and (g); and 163.31777, F.S. The amendment (Ordinance Number 09-07) to Capital Improvements Element Objective 2 states that "Any and aU off-site improvements associated with new schools and school expansions shall be the sole responsibility of the Collier County School Board unless Collier County and the Collier County School Board agree to an alternative funding mechanism." The off-site improvements pertain to infrastructure to support new schools and school expansions. School Interlocal Agreement (Section 7) addresses off-site improvements by requiring the off- site improvements be addressed (at the time of the preliminary consistency determination that is done when school sites are identified or schools are expanded or constructed and reviewed for consistency with the Comprehensive Plan) for each new or expanded school through an 4 Agenda Item No. 17 A September 15, 2009 Page 18 of 38 agreement between the School District and local government as to the scope, timing, and party (or parties) responsible for funding, constructing, operating and maintaining the off-site improvement. The Public School Facilities Element Policy 3.2 implements the School Interlocal Agreement by requiring the County and School District to enter into an agreement for off-site improvements (address the scope, timing, funding, constructing, operating, and maintaining) prior to commencement of construction of a new school. The School InterlocaJ Agreement and Public School Facilities Element Policy 3.2 do not establish or determine whi~h party (or parties) is responsible for funding the off-site improvements, but the School Interlocal Agreement and Public School Facilities Element Policy 3.2 establish a process (through the agreement for off- site improvements) to address the issue ofwbich party (or parties) is responsible for off-site improvements. The Comprehensive Plan Intergovernmental Coordination Element Policy 2.6 requires Collier County to coordinate with the Collier County School District for collaborative planning and decision making on the location and extension of public facilities subject to concurrency and to support existing and proposed pubJic educational facilities in accordance with the School Interloca.l Agreement. The amendment to Capital Improvements Element Objective 2 is inconsistent with the School Interlocal Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Policy 2.6 because: (1) the amendment to Capital Improvements Element Objective 2 makes the School District solely responsible for off-site improvements to support new schools and school expansions unless both parties (Collier County and the School District) agree to an alternative funding mechanism, and the School Interlocal Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Pc,licy 2.6 do not establish that the School District is solely responsible for s Agenda Item No. 17 A September 15, 2009 Page 19 of 38 such off-site improvements; and (2) the amendment to Capital Improvements Element Objective 2 makes the School District solely responsible for off-site improvements to support new schools and school expansions while not requiring that the responsibility for off-site improvements be mutually agreed to thro'ugh the "ofT-site improvements" agreement process established in the School Interlocal Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Policy 2.6. Because the amendment to Capital Improvements Element Objective 2 is inconsistent with Public School Facilities Element Policy 3.2 and Intergovernmental Coordination Element Policy 2.6, the Comprehensive Plan as amended does not establish meaningful and predictable guidelines for off-site improvements for schools. The amendment to Capital Improvements Element Objective 2 is not supported by the best available relevant and appropriate data and analysis of the School Interlocal Agreement because the amendment to Capital Improvements Element Objective 2 is inconsistent with the School Interlocal Agreement. The amendment to Capital Improvements Element Objective 2 is not supported by best available relevant and appropriate data and analysis demonstrating that the School District has agreed to be solely responsible for any and all off-site improvements associated with new schools and school expansions. In addition, based on comments from the School District, the School District has not agreed to be solely responsible for any and all off-site improvements associated with new schools and school expansions. Because the amendment to Capital Improvements Element Objective 2 is inconsistent with the Interlocal School Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Policy 2.6, the several elements (Capital Improvements Element, Public School Facilities Element, and Intergovernmental Coordination 6 Agenda Item No. 17 A September 15, 2009 Page 20 of 38 Element) of the Comprehensive Plan are not consistent and coordinated, and therefore the amendment to Objective 2 is inconsistent with the requirements of Section 163.3177(2), F .S., and Rule 9J-5.005(5), F.A.C. The amendment to Capital Improvements Element Objective 2 is not consistent with the requirements of Sections 163.3177(12) and 163.3180(13), F.S., which require consistent, uniform procedures for implementation of school concurrency district wide throughout a school district because the local government comprehensive plans of other local governments within Collier County do not include plan objective/policy provisions consistent with the amendment language of Objective 2. Therefore, the amendment to Capital Improvements Element Objective 2 is not consistent with the following requirements: Rules 9J-5.005(2), (5) and (6); 9J-5.015(3)(b)I; 9J- S.OI5(3)(c)1., and 11.; 9J-S.016(1)(a); 9J-5.016(2)(c) and (d); and 9J-5.016(3)(b)l; 9J- 5.025(2)(f); 91-S.025(3)(b)1., and 5.; 9J-5.025(3)(c)S., F.A.C.; and Sections 163.3177(2), (3) and (8); 163.3177(4)(a); 163.3177(6)(h); 163.3177(12); 163.3177(12)(c) and (g); 163.3180(13); 163.3180(13)(a), and (g); and 163.31777, F.S. B. Recommended R.~medial Actions. I. Delete the amendments to Objective 2 and Policy 5.4 from the Comprehensive Plan. 1 Agenda Item No. 17 A September 15. 2009 Page 21 of 38 II. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN A. Inconsistent provisions. The Amendments are inconsistent with the State Comprehensive Plan goals and policies set forth in Section 187.201, Florida Statutes, including the following provisions: 1. Land Use. The Amendments are inconsistent with the Goal set forth in Section I 87.201(l5)(a), F.S., and the Policy set forth in Sections 187.201(15)(b)1, F.S. 2. Urban and Downtown Revitalization. The Amendments are inconsistent with the Goal set forth in Section I 87.201(16)(a), F.S., and the Policy set forth in Section 187.201 (169)(b )8, F .S. 3. Public Facilities. The Amendments are inconsistent with the Goal Set forth in Section 187.201(17)(a), F.S. 4. Plan Implementation. The Amendments are inconsistent with the Goal set forth in Section 187.20I(25)(a), F.S., and the Policies set forth in Section 187.201(25)(b)7. B. Recommended remedial action. These inconsistencies may be remedied by revising the Amendments as described above in Section 1. 8 Agenda Item No. 17A September 15, 2009 Page 22 of 38 CONCLUSIONS 1. The Amendments identified above are not consistent with the State Comprehensive Plan; 2. The Amendments identified above are not consistent with Chapter 9J-5, F .A.C.; 3. The Amendments identified above are not consistent with the requirements of Chapter 163, Part II, F.S.; 4. The Amendments identified above are not "in compliance,n as defined in Section 163.3184(1)(b) F.S.; and~ 5. In order to bring the Amendments into compliance, the County may complete the recommended remedial actions described above or adopt other remedial actions that eliminate the inconsistencies. Executed this 19th day of May 2009, at Tallahassee, Florida. Mike McDaniel, Chief Office of Comprehensive Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 9 Agenda Item No. 17 A September 15. 2009 Page 23 of 38 CONCLUSIONS 1 . The Amendments identified above are not consistent with the State Comprehensive Plan; 2. The Amendments identified above are not consistent with Chapter 9J-5, F.A.C.; 3. The Amendments identified above are not consistent with the requirements of Chapter 163, Part II, F.S.; 4. The Amendments identified above are not "in compliance," as dermed in Section 163.3184(1Xb) F.S.; and, . 5. In order to bring the Amendments into compliance, the County may complete the recommended remedial actions de~cribed above or adopt other remedial actions that eliminate the inconsistencies. Ex~u~fuis l~h&YOf~Y~j7~;d~ Mike McDaniel, Chief Office of Comprehensive Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 9 Agenda Item No. 17 A September 15, 2009 Page 24 of 38 Exhibit B Collier County shall adopt a remedial plan amendment to Capital Improvements Element Objective 2 and Policy 5.4 of the Collier County Growth Management Plan to delete the words shown in strike-through below: OBJECTIVE 2 (FINANCIAL FEASIBILITY): Provide public facilities, as described in Polley 1.1 above, in order to maintain adopted level of service standards that are within the ability of the County to fund, ef within the County's authority to require others to provide, or as provided by the School District within their financially feasible Flve- Year Capital Improvement Plan, formally adopted by the School Board between July 1 and October 1 &f each year. A..v 8AtI all iff site IMSr8V811M8flle a888lJiatetl \f:itA ASt.i.' 6&R8e18 liIA" 88Re81 ellBsRsieM ~slI lie fA' B81e F88I8Reil1i1i~' ef tAe Celli" CewRw SeAeel iesr" wRleil Cellie, CewRW lilA. n., Collier Caw..'" ;iA881 ielJrE' e,FM te IA aMeFAIM f4i1A"iRI MSMsAie"" With the exception of pUblic school facilities. existing public facility deficiencies measured against the adopted level of service standards will be eliminated with revenues generated by ad valorem taxes and other Intergovernmental revenues received based on economic activity. Future development will bear a proportionate cost of facility Improvements necessitated by growth. Future developmenfs payments may take the form of. but are not limited to, voluntary contributions for the benefit of any pUblic facility, impact fees, dedications of land. provision of public facilities. and future payments of user fees, special assessments and taxes. (IX) Policy 5.4: The concurrency requirement of the Public School Facl/ltles level of service standards of the Growth Management Plan will be achieved or maintained if anyone of the following standards of the Concurrency Management System is met: A. The necessary 9IBitt., facilities and servicel, iRelwillA. Fe,wieitl if( eite jM8fIV8M8A. are In place at the time a final site development plan. final plat or functional equivalent is approved: or B. The necessary 8&Bitll facilities and services. iAelwillA, FelWi8ite eff eite iM"eveMeR.. are under construction or the contract for such facilities and services has been awarded, accepted. and duly executed by all parties at the time a final site development plan, ell final plat or functional equivalent; or C. The necessary il.i.. facilities and services. iRllwiliFlI rSlwiaitl 8ff aitl i~8'SVIM8Rtl. are found In the first, second or third year of the School Dlsbict of Collier County's financially feasible Five-Year Capital Improvement Plan, a8 identified in Policy 4.2, and as formally adopted by the School Board between July 1 and October 1 each year, and as adopted by reference by December 1 of each year, at the time a final site development plan, flnal plat or functional equivalent is approved; or D. The necessary ~ facilities and servicesr~'eawi&it8 eff iits ifiJlSr8\:8"'IRte. are the subject of a binding commitment with the developer to contribute proportionate share funding as provided for In Policy 2.4 of the Public School Facilities Element, if applicable, or to construct the needed facilities. <( OHO r--0C0 '\"""""0_ .N 0 o 'I.{) Z~N EI....<J) <J)eDOl ~..oro -ED... C1leD "0..... co.. WeD OJ(/) <( ...... i~ '~ . . ~~.. STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS "Dedicated to making Florida a better place to call home" CHARLIE CRIST Governor THOMAS G. PELHAM Secretary May 19, 2009 The Honorable Donna Fiala, Chainnan Collier County Board of County Commissioners 3301 E. Tamiami Trail Naples, Florida 34112 Dear Chainnan Fiala: The Department has completed its review of the adopted Comprehensive Plan Amendments for Collier County, as adopted on February 24,2009, by Ordinance Number 09-07 DCA No. 09-CIE 1), and has detennined that portions of the plan amendments (Capital Improvements Element Objective 2 and Policy 5.4) do not meet the requirements of Chapter 163, Part II, Florida Statutes (F.S.), for compliance, and that the remaining portions of the plan amendments do meet these requirements. The Department is issuing a Notice of Intent to find portions of the Comprehensive Plan Amendments adopted by Ordinance Number 09-07 "Not In Compliance" and the remaining portions of the Comprehensive Plan Amendments adopted by Ordinance Number 09-07 "In Compliance," as previously noted. The Notice of Intent has been sent to the Naples Daily News for publication on May 20, 2009. The Department is also issuing the attached Statement of Intent regarding the portions of the Amendments adopted by Ordinance Number 09-07 found not in compliance. Please note that a copy of the adopted Collier County Comprehensive Plan Amendments, the Statement of Intent, and the Notice of Intent must be available for public inspection Monday through Friday, except for legal holidays, during nonnal business hours, at the Collier County Comprehensive Planning Department, 2800 N. Horseshoe Drive, Naples, Florida 34104. Please be advised that Section 163.3 I 84(8)(c)2, F.S., requires a local government that has an internet site to post a copy of the Department's Notice of Intent on the site within 5 days after receipt of the mailed copy of the Department's Notice of Intent. In addition, the Statement of Intent and Notice of Intent will be forwarded along with a petition to the Division of Administrative Hearings for the scheduling of an administrative hearing pursuant to Section 120.57, F.S. We are interested in meeting with you and your staff at your convenience for the purpose of developing an acceptable solution to this not in compliance finding. The issues raised in the attached Statement of Intent include the level of service standard for schools and off-site improvements for schools regarding the amendments to Capital Improvements Element Objective 2 and Policy 5.4. 2555 SHUMARD OAK BOULEVARD. TALLAHASSEE, FL 32399-2100 850-488-8466 (p) . 850-921-0781 (f) . Webslte: www dcastate.flus . COMMUNITY PLANNING 850-488-2356 (p) 850-488.3309 (I) . FLORIDA COMMUNITIES TRUST 850-922-2207 (p) 850-921-1747 (I) . . HOUSING AND COMMUNITY DEVELOPMENT 650-488-7956 (p) 850-922.5623 (I) . <t: OHIO r--OM ...-0_ .N 0 o ".;0 Z~N E....Q) Q)mOJ _..ceo -Eo.. rom "0_ co.. mm OJ(f) <t: The Honorable Donna Fiala, Chairman May 19,2009 Page 2 If you have any questions, please contact Brenda Winningham, Regional Planning Administrator, at (850) 922-1800, or Lynette Norr, Assistant General Counsel, at (850) 488- 0410. }ti~n11YYz1 Ed ~Daniel, Chief Office of Comprehensive Planning " MM/sr Enclosures: Notice of Intent Statement of Intent cc: Mr. Ken Heatherington, Executive Director, Southwest Florida RPC Mr. Randy Cohen, Director, Collier County Comprehensive Planning Department <{O'lOO 1'-0("") ...-0_ ,N 0 o 'I'- Z~N E'-<l.> Q.)Q.)0l ~.oro -ED.. roQ.) ""Q~ cQ.. Q.)Q.) !f(J) .I STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS NOTICE OF INTENT TO FIND THE COLLIER COUNTY AMENDMENTS, ADOPTED BY ORDINANCE NO. 09-07 CAPITAL IMPROVEMENT ELEMENT (OBJECTIVE 2 AND POLICY 5.4) ON FEBRUARY 24, 2009, NOT IN COMPLIANCE, AND THE REMAINING AMENDMENT(S) ADOPTED PURSUANT TO ORDINANCE 09-07, IN COMPLIANCE DOCKET NO. 09-CIEI-NOI-110I-(A)-(N) The Department gives notice of its intent to find the Collier County amendments adopted by Ordinance No. 09-07 Capital Improvement Element (Objective 2 and Policy 5.4) on February 24, 2009, NOT IN COMPLIANCE, and the remaining amendment(s) adopted by Ordinance No. 09-07 IN COMPLIANCE, pursuant to Sections 163.3184, 163.3187 and 163.3189, F.S. The adopted Collier County Comprehensive Plan Amendment(s), the Department's Objections, Recommendations, and Comments Report (if any), and the Department's Statement of Intent to fmd the Comprehensive Plan Amendment Not In Compliance will be available for public inspection Monday through Friday, except for legal holidays, during normal business hours, at the Collier County Comprehensive Planning Department, 2800 North Horseshoe Drive, Naples, Florida 34 104 and County Clerk's Office, 4th Floor Administration Building, Collier County Government Center, East Naples, Florida 34112. Any affected person, as defined in Section 163.3 I 84, F.S., has a right to petition for an administrative hearing to challenge the proposed agency determination that the above referenced amendments to the Collier County Comprehensive Plan are In Compliance, as defmed in Subsection J 63.3184(1), F.S. The petition must be filed within twenty-one (21) days after publication of this notice; a copy must be mailed or delivered to the local government and must include all of the information and contents described in Uniform Rule 28-106.201, F.A.C. The petition must be filed with the Agency Clerk, Department of Community Affairs, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100. Failure to timely file a pctition shall constitute a waiver of any right to request an administrative proceeding as a petitioner under Sections 120.569 and 120.57, F.S. If a petition is filed, the purpose of the administrative hearing will bc to present evidence and testimony and forward a recommended order to the Department. If no petition is filcd, this Notice of Intent shall become final agency action. This Notice of Intent and the Statement oflntent for those amendment(s) found Not In Compliance will be forwarded by petition to the Division of Administrative Hearings (DOAH) of the Department of Management Services for the scheduling of an Administrative Hearing pursuant to Sections 120.569 and 120.57,I"'.S. TIIC purpose of the administrative hearing will be to present evidcnec nnd testimony on the noncompliance issues alleged by the Department in its Objections, Recommendations, and Comments Report and Statement of Intent in order to secure a recommended order for forwarding to the Administration Commission. Affected persons may petition to intervene in either proceeding referenced above. A petition for intervention must be filed at least twenty (20) days before the final hearing and must include all of the information and contents described in Uniform Rule 28-1 06.205, F .A,C. Pursuant to Section 163 .3184( 10), F. S., no new issues may be alleged as a reason to find a plan amendment not in compliance in a pctition to intervene filed more than twenty one (2J) days after publication of this notice unless the petitioner establishes good cause for not alleging such new issues within the twenty one (21) day time period. The petition for intervention shall be tiled at DOAH, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, and a copy mailed or delivered to the local government and the Department. Failure to petition to intervene within the allowed time frame constitutes a waiver of any right such a person has to request a hearing pursuant to Sections 120.569 and 120.57, F.S., or to participate in the administrative hearing. After an administrative hearing petition is timely filed, mediation is available pursuant to Subsection 163.3189(3)(a), F.S., to any affected person who is made a party to the proceeding by filing that request with the administrative law judge assigned by the Division of Administrative Hearings. The choice of mediation shall not affect a party's right to an administrative hearing. )/11 k fl1~W Mike McDaniel, Chief Office of Comprehensive Planning Division of Community Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 <( OHX) !,-OC'? ..--0_ .N 0 o 'CO Z~C"J E.....Q) Q)ClJOl -..0 cu -Eo.. co Q) -0_ en. Q)CIJ Ol(j) <( STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS IN RE: COLLIER COUNTY COMPREHENSIVE PLAN AMENDMENTS 09-1CIE; AMENDING THE CAPITAL Docket No. 09-CIE1-NOI-1101 IMPROVEMENTS ELEMENT STATEMENT OF INTENT TO FIND A PORTION OF COMPREHENSIVE PLAN AMENDMENTS NOT IN COMPLIANCE The Florida Department of Community Affairs, pursuant to Section 163.3184(10), Florida Statutes, and Rule 9J-lI.012(6), Florida Administrative Code (F.A.C.), hereby issues this Statement ofIntent to find a portion of the Comprehensive Plan Amendment 09-ClEl ("Amendments") adopted by Collier County in Ordinance No. 09-07 on February 24, 2009, Not In Compliance. The Department finds that a portion of the Amendments are not "in compliance," as that term is defined in Section 163.3184(l)(b), Florida Statutes (F.S.), for the following reasons: I. CAPITAL IMPROVEMENTS ELEMENT AMENDMENT OBJECTIVE 2 AND POLICY 5.4 A. Inconsistent provisions. The inconsistent provisions of the Amendments under this subject heading are as follows: Collier County had previously amended the Collier County Growth Management Plan ("Comprehensive Plan") in October 2008 (Ordinance Number 08-55; Department Number 08- PEFEl) to address public school facility planning and school concurrency. Collier County executed the "Interlocal Agreement For Public School Facility Planning And School Concurrency" ("Schoollnterlocal Agreement") in October 2008 with the District School Board <C OHX) r--OC0 -r- 0 "- .N 0 o -0) Z~N E,-<l1 <l1G.J0) __..aC'O ~Eo... -o.9:l cn. <l1G.J ;jf(f) of Collier County ("School District") to address the requirements of Section 163.31777, F .S. In part, the amended Comprehensive Plan adopted by Ordinance Number 08-55 established the Public School Facilities Element, level of service standards for public school facilities, and established plan policies for off-site infrastructure improvements to support school facilities. Pursuant to Section 163.3177(12)( c), F.S., the public school facilities element shall be based upon data and analysis, which must include the interlocal agreement adopted pursuant to Section 163.31777, F.S. The School Interlocal Agreement is data and analysis intended to support the Comprehensive Plan, including the Public School Facilities Element, Capital Improvements Element, and Intergovernmental Coordination Element. The amendment (Ordinance No. 09-07) to Capital Improvements Element Policy 5.4 provides that "requisite off-site improvements" are included as part of the necessary capital facilities and services that are to be considered when determining concurrency regarding the public school facilities level of service standards. Thus, the amended Policy 5.4 makes "requisite off-site improvements" a part of the school level of service standards. The school level of service standards established in Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and the School Interlocal Agreement (Sections 13.2 and 14) are based upon permanent Florida Inventory of School House (FISH) capacity as follows: 95% of permanent FISH capacity for elementary school concurrency service areas; 95% of permanent FISH capacity for middle school concurrency service areas; and 100% of permanent FISH capacity for high school concurrency service areas. Intergovernmental Coordination Element Policy 2.6 requires Collier County to coordinate with the Collier County School District for collaborative planning and decision making on the location and extension of public facilities subject to concurrency and to support existing and proposed public educational facilities in 2 <(OJ co r--OM ...-0_ .N 0 o '0 Z~M E,-Q) Q)Q)0'l _..0 CU -ED.. cuQ) "0...... ca.. Q)(l) Cfl(fJ <( - accordance with the School Interlocal Agreement. The school level of service standards established in Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and the School Interlocal Agreement do not include "requisite off-site improvements." Therefore, the amendment to Capital Improvements Element Policy 5.4 is internally inconsistent with Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and Intergovernmental Coordination Element Policy 2.6 regarding the school level of service standards. In addition, the amendment to Capital Improvements Element Policy 5.4 does not establish meaningful and predictable guidelines and standards defining "requisite off-site improvements" in order to guide the concurrency detennination regarding the level of service standards. Because the amendment to Capital Improvements Element Policy 5.4 is inconsistent with the Interlocal School Agreement (Sections 13.2 and 14), Capital Improvements Element Policy 1.5, Public School Facilities Element Policy 1.1, and Intergovernmental Coordination Element Policy 2.6, the several elements (Capital Improvements Element, Public School Facilities Element, and Intergovernmental Coordination Element) of the Comprehensive Plan are not consistent and coordinated, and therefore the amendment to Policy 5.4 is inconsistent with the requirements of Section 163.3177(2), F.S., and Rule 9J-5.005(5), F.A.C. The amendment to Capital Improvements Element Policy 5.4 is not supported by best available relevant and appropriate data and analysis because the amended Policy 5.4 is inconsistent with the School Interlocal Agreement (Sections 13.2 and 14) regarding school level of services standards. The amendment to Capital Improvements Element Policy 5.4 is not supported by relevant and appropriate data and analysis identifying whether any requisite off-site improvements are needed to achieve and maintain the amended level of service standard of 3 <(O'lCO r--OC'? ...-0_ .N 0 oLCi"- Zr-C'? E....(l) (l)CllOJ -..0 Cil -ED- cuCll "0...... co.. (l)Cll OJU) <( Policy 5.4 and demonstrating that the requisite off-site improvements are included in a financially feasible Schedule of Capital Improvements in the Capital Improvements Element. The amendment to Capital Improvements Element Policy 5.4 makes the school level of service standards in Policy 5.4 inconsistent with statutory requirements (Sections 163.3177(12) and 163.3180(13), F.S.) to have uniform district-wide (school district-wide) level of service standards for school concurrency because the local government comprehensive plans other local governments in CoIlier County do not include plan policy provisions consistent with the amendment language of Policy 5.4. Therefore, the amendment to Capital Improvements Element Policy 5.4 is not consistent with the following requirements: Rules 9J-5.005(2), (3), (5) and (6); 9J-5.015(3)(b)l; 9J- 5.015(3)(c)I., and II.; 9J-5.016(1), (2), (3) and (4); 9J-5.025(2)(0; 9J-5.025(3)(b)I., 2., 3., and 5.; 9J-5.025(3)(c)2., 5., and 7., F.A.C.; and Sections 163.3177(2), (3), (8), and (lO)(e); 163.3 1 77(4)(a); 163.3177(6)(h); 163.3177(12); 163.3177(l2)(c) and (g); 163.3180(13); 163.3l80(13)(a), (b), (d), and (g); and 163.31777, F.S. The amendment (Ordinance Number 09-07) to Capital Improvements Element Objective 2 states that "Any and all off-site improvements associated with new schools and school expansions shall be the sole responsibility of the Collier County School Board unless Collier County and the Collier County School Board agree to an alternative funding mechanism." The off-site improvements pertain to infrastructure to support new schools and school expansions. School InterJocal Agreement (Section 7) addresses off-site improvements by requiring the off- site improvements be addressed (at the time of the preliminary consistency determination that is done when school sites are identified or schools are expanded or constructed and reviewed for consistency with the Comprehensive Plan) for each new or expanded school through an 4 <(OlCO r--OM ..-0....... .N 0 o "N Z~M E....a> <1l<D0'l .....,.Qctl -ED.. co <D "0...... CD.. <D<D ~U) agreement between the School District and local government as to the scope, timing, and party (or parties) responsible for funding, constructing, operating and maintaining the off-site improvement. The Public School Facilities Element Policy 3.2 implements the School Interlocal Agreement by requiring the County and School District to enter into an agreement for off-site improvements (address the scope, timing, funding, constructing, operating, and maintaining) prior to commencement of construction of a new school. The School Interlocal Agreement and Public School Facilities Element Policy 3.2 do not establish or determine which party (or parties) is responsible for funding the off-site improvements, but the School Interlocal Agreement and Public School Facilities Element Policy 3.2 establish a process (through the agreement for off- site improvements) to address the issue of which party (or parties) is responsible for off-site improvements. The Comprehensive Plan Intergovernmental Coordination Element Policy 2.6 requires CoIlier County to coordinate with the Collier County School District for collaborative planning and decision making on the location and extension of public facilities subject to concurrency and to support existing and proposed public educational facilities in accordance with the School InterIocal Agreement. The amendment to Capital Improvements Element Objective 2 is inconsistent with the School Interlocal Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Policy 2.6 because: (1) the amendment to Capital Improvements Element Objective 2 makes the School District solely responsible for off-site improvements to support new schools and school expansions unless both parties (Collier County and the School District) agree to an alternative funding mechanism, and the School Interlocal Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Policy 2.6 do not establish that the School District is solely responsible for 5 <(moo 1'-0("") ..- 0 4- .N 0 o "("") Z~C"0 ~l-Q) ~UlOl 2..0 co -Eo.. cuUl -o~ co. UlUl :;fU) such off-site improvements; and (2) the amendment to Capital Improvements Element Objective 2 makes the School District solely responsible for off-site improvements to support new schools and school expansions while not requiring that the responsibility for off-site improvements be mutually agreed to through the "ofT-site improvements" agreement process established in the School Interlocal Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Policy 2.6. Because the amendment to Capital Improvements Element Objective 2 is inconsistent with Public School Facilities Element Policy 3.2 and Intergovenunental Coordination Element Policy 2.6, the Comprehensive Plan as amended does not establish meaningful and predictable guidelines for off-site improvements for schools. The amendment to Capital Improvements Element Objective 2 is not supported by the best available relevant and appropriate data and analysis of the School Interlocal Agreement because the amendment to Capital Improvements Element Objective 2 is inconsistent with the School Interlocal Agreement. The amendment to Capital Improvements Element Objective 2 is not supported by best available relevant and appropriate data and analysis demonstrating that the School District has agreed to be solely responsible for any and all off-site improvements associated with new schools and school expansions. In addition, based on comments from the School District, the School District has not agreed to be solely responsible for any and all off-site improvements associated with new schools and school expansions. Because the amendment to Capital Improvements Element Objective 2 is inconsistent with the Interlocal School Agreement (Section 7), Public School Facilities Element Policy 3.2, and Intergovernmental Coordination Element Policy 2.6, the several elements (Capital Improvements Element, Public School Facilities Element, and Intergovernmental Coordination 6 - Element) of the Comprehensive Plan are not consistent and coordinated, and therefore the <(OlCO 1'--0("") ~o_ .N 0 o -"<:t z~("") E...CD CDCDO'l _..oCIJ -Eo.. coCl) "0_ co. Cl)Cl) O'l(f) <( amendment to Objective 2 is inconsistent with the requirements of Section 163.3177(2), F.S., and Rule 9J-5.005(5), F.A.C. The amendment to Capital Improvements Element Objective 2 is not consistent with the requirements of Sections 163.3177(12) and 163.3180(13), F.S., which require consistent, uniform procedures for implementation of school concurrency district wide throughout a school district because the local government comprehensive plans of other local governments within Collier County do not include plan objective/policy provisions consistent with the amendment language of Objective 2. Therefore, the amendment to Capital Improvements Element Objective 2 is not consistent with the following requirements: Rules 9J-5.005(2), (5) and (6); 9J-5.015(3)(b)l; 9J- 5.01 5(3)(c) 1., and 11.; 9J-5.016(1)(a); 9J-5.016(2)(c) and (d); and 9J-5.016(3)(b)l; 9J- 5.025(2)(f); 9J-5.025(3)(b)1., and 5.; 9J-5.025(3)(c)5., F.A.C.; and Sections 163.3177(2), (3) and (8); 163.3177(4)(a); 163.3177(6)(h); 163.3177(12); 163.3177(12)(c) and (g); 163.3180(13); 163.3180(I3)(a), and (g); and 163.31777, F.S. B. Recommended Remedial Actions. 1. Delete the amendments to Objective 2 and Policy 5.4 from the Comprehensive Plan. 7 <Oleo r--OC'0 ...-0_ .N 0 o 'I.{) Z~C'0 E....Q) Q)Q)0l _..Deil -ED.. (lJ a> "D_ co.. Q)a> mC/) < II. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN A. Inconsistent provisions. The Amendments are inconsistent with the State Comprehensive Plan goals and policies set forth in Section 187.201, Florida Statutes, including the following prOViSIons: 1. Land Use. The Amendments are inconsistent with the Goal set forth in Section 187.201(15)(a), F.S., and the Policy set forth in Sections 187.201(l5)(b)l, F.S. 2. Urban and DO'Mlto'Ml Revitalization. The Amendments are inconsistent with the Goal set forth in Section 187.201(16)(a), F.S., and the Policy set forth in Section 187.201(169)(b)8, F.S. 3. Public Facilities. The Amendments are inconsistent with the Goal Set forth in Section 187.20 I (17)(a), F.S. 4. Plan Implementation. The Amendments are inconsistent with the Goal set forth in Section I 87.20 I (25)(a), F.S., and the Policies set forth in Section 187.201(25)(b)7. B. Recommended remedial action. These inconsistencies may be remedied by revising the Amendments as described above in Section I. 8 <(rnoo r--.OM ..- 0 4- ,N 0 o -<0 Z~M E>-Q) 0)0)0> _.oeu -EO. roO) "'0_ co. 0)0) !:fCfJ CONCLUSIONS I. The Amendments identified above are not consistent with the State Comprehensive Plan; 2. The Amendments identified above are not consistent with Chapter 9J-5, F.A.C.; 3. The Amendments identified above are not consistent with the requirements of Chapter 163, Part II, F.S.; 4. The Amendments identified above are not "in compliance," as defined in Section 163.3184(1)(b) F.S.; and, 5. In order to bring the Amendments into compliance, the County may complete the recommended remedial actions described above or adopt other remedial actions that eliminate the inconsistencies. Executed this 19th day of May 2009, at Tallahassee, Florida. Mike McDaniel, Chief Office of Comprehensive Planning Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 9 <{ OHO r--OC'? .,-0_ .N 0 o "r-- Z~(Y) :=~Q) -<DOl 2.oro -'(l.. rn C -02 co.. (!) (l) GJ(f) <{ CONCLUSIONS I. The Amendments identified above are not consistent with the State Comprehensive Plan; 2. The Amendments identified above are not consistent with Chapter 9J-5, F.A.C.; 3. The Amendments identified above are not consistent with the requirements of Chapter 163, Part II, F.S.; 4. The Amendments identified above are not "in compliance," as defined in Section l63.3l84(l)(b) F.S.; and, . 5. In order to bring the Amendments into compliance, the County may complete the recommended remedial actions described above or adopt other remedial actions that eliminate the inconsistencies. Executed this 19th day of May 2009, at Tallahassee, Florida. k!dJ:!:1:~8~ Office of Comprehensive Planning Department of Community Affairs 2555 Shumard Oak. Boulevard Tallahassee, Florida 32399 9 >10 . 'J ";;,' I -. , ,. ~, 0..; ... :""t. I:-.,:~~: ~,. 6.~. 1(;4 ~G :!:i :~ ...-,;-:; .....-. ... .~'~, ;:.;<... - . '-it J;;'" ... _1:.1.... ".. .~ ~"':;. ;~-... "Po: .lol-,,;;. . ~. Agenda Item No. 17 A September 15, 2009 Page 38 of 38 -:";'- \,,. . NOTICE OF INTENT TO CONSIDER ORDINANCE Notice, is hereby given tlJat on Tuesday; September IS. 2009 in the Boardroom, 3rd Floor, ACminlstration Building, Collier. County Government Center:' 3301 E. Tamiaml Trail, Naples, Florida the Board . OT County , Commissioners will hold a public hearing to . conslcf- . er the. adoption of the following County Ordinance for an Amendment to the Collier County Growth Managewent Plan. The meeting will cqmmen.cE! at 9~()() ~,M;" - '_. ~r.". .'::' ,;,...';!~;',.:::';i::.':' i The purpo.se, of the :hearing is to con?idl;!r th~i:ldop- , tion of an. amendment .to. tt1e CapItal .lmproV~l'I'1ent Element of the . Growth . Management Plan. The',OR" DINANCE title is as foJlows~', " -I ,- ,,'. .;:;~ '., ..'~ ".~-,.' ;', --, '~,-._-;;'~i:. .', ~:, . . '.~, -. ORDINANCE NO. 09- .. ...-,....:...' - AN. ORDINANCE AMENDING ORDINANCE NO. 89-05, AS . AMENDED" THE. COLLIER ,COUNTY GROWTH. MAN- AGEMENT,PLAN FOR THE UNINCORPORATED AREA OF COLLIER COUNTY~ FLORIDA BY PROVIDING FOR A, REMEDIAL AMENDMENT TO THE CAPITAL IMPROVE- MENT,ELEMENT :RELATING TO PUBLIc SCHOOLS, 'PRGVIDING FOR SEVERABILITY, AND PROVIDING FOR AN EFFECTIVE DATE . .' , f' All interested patties are invited to appear and be heard. Copies of the proposed Growth Manape- ment Plan Amendment are. available ;for Inspection at the Collier County Clerk's Office, 4th ffoor,Ad- ministration . Building, Collier County. Government Center, East Naples, Florida; and at Comprehensive Planning Department" 2800NI Horseshoe Drive, Naples, Florida between the hOlirs of 8:00 A.M. and 5:00 P.M., Monday through Friday. Any questions pertaining to th,e document Should I:>~',directed to the Comprehensive Planning Department. 'Written ' comments filed with the Clerk to the Board's Office prior to Tuesday, September 15, 2009, will be read and considered at the public hearing. " ", \ If a perso~ decides to ap~eal_ any decisi~n ~~de'bY . the Board of County Commissioners with respect to any '!latter considered ,at sl;lch meeting. or hearing, he, wIll need a record of ttiat proceeding, and for, such purpose he may need, to enSl,lre, that a verba- tim record of the proceedings is made, which re- cord includes the testimony and evidence upon which the appeal i~ to be ~asei:l.. .,~;~ If you are a person with a disability 'who' need~'any accommodation in order to participate in this prp- ceeding, yoLi are entitled, at no cqst to 'you, to'the provision of certain assistance. 'Please contact the Collier County Facilities Management..Departmenl. located at 3301 Tamiami Trail East, Building W,' Naples, Florida 34112, (239)' 252-8380. Assisted lis-.. tening devices for the hearing impaire, d, are avail- able in the county Commissioners' Office~~'~ . . . . . l, :'l: ,:'_~"'...-.-~-~ BOARD OF COUNTY COMMISSIONERS .'~ W(:: COLLIER COUNTY, FLORIDA DONNA FIALA, CHAIRMAN DWIGHT E. BROCK,'CLERK By: . Martha Vergara " Deputy Clerk (SEAL) Seotember 4. 9~ 2009 No 1813217 "t;,.. '{t.... .......; ....:-,...' "..'l., ...,....., .. !; '! "':, .... '-..