in the pasco county, florida, a sections 380.06(19...

IN THE MATTER OF:

PASCO COUNTY, Florida, a political subdivision of the State of Florida, and Buildout Date Requirements Pursuant to Sections 380.06(19)(~), 380.06(19)(f)6., 163.3167(8), 163.31 80(12), and 163.3194(1)(a), Florida Statutes, and Rules 95-2.045(7), 9J-2.045(8), and 95-2.0255 (repealed), Florida Administrative Code

PETITION FOR DECLARATORY STATEMENT BEFORE DEPARTMENT OF COMMUNITY AFFAIRS

Pursuant to Section 120.565, Florida Statutes, and Florida Administrative Code Rule 28-

105, Petitioner, Pasco County, Florida (hereinafter "Pasco county"),' by and through the

undersigned attorneys, respectfully requests a Declaratory Statement from the Department of

Community Affairs (hereinafter "DCA" or "Department") regarding the applicability of the

following statutory provisions and rules over which the Department has authority: (1) Section

380.06(19)(~), Florida Statutes; (2) Section 380.06(19)(f)6., Florida Statutes; (3) Section

163.3 167(8), Florida Statutes; (4) Section 163.3 180(12), Florida Statutes; (5) Section

163.3194(1)(a), Florida Statutes, (6) Rule 9J-2.045(7), Florida Administrative Code, (7) Rule 9J-

2.045(8), Florida Administrative Code, and (8) Rule 9J-2.0255, Florida Administrative Code

(repealed) (collectively referred to herein as the "Statutes and Rules"). In general, Pasco County

is in doubt regarding the extent to which it can, under the foregoing Statutes and Rules, impose

more stringent buildout date requirements for Developments of Regional Impact (DRIs) than

' Petitioner's address, telephone number, and facsimile number are as follows: 37918 Meridian Avenue, Dade City, Florida 33525; (352) 52 1-4 1 1 1 (phone); (352) 521-4105 (facsimile). However, all communications, correspondence, pleadings and any other legal papers relating to this Petition should be directed to the undersigned attorneys for Pasco County.

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those set forth in Section 380.06(19)(c), Florida Statutes in (a) its local concurrency management

system (as adopted in the Pasco County Comprehensive Plan and land development regulations)

or (b) in DRI development orders. Pasco County also has questions relating to: (a) the phrase

"under active construction" in Section 380.06(19)(c), Florida Statutes, (b) the effect of the

"under active construction" 3-year buildout date extension on more stringent requirements in an

existing Section 380.032 Agreement, and (c) the procedural requirements for implementation of

the "under active construction" 3-year buildout date extension. The specific questions as to how

the Statutes and Rules may apply to Pasco County's particular circumstances are set forth below.

PART I. SPECIFIC QUESTIONS RELATED TO TRANSPORTATION CONCURRENCY MANAGEMENT

Pasco County has adopted requirements related to transportation concurrency in its

Comprehensive Plan and land development regulations, and the majority of such requirements

were substantially modified or replaced after the State Legislature's adoption of the 2005

amendments to the Growth Management Act (SB 360) (hereinafter collectively referred to as the

"Concurrency Management system")? Pasco County is now considering potential amendments

to its concurrency management land development regulations to address, among other things,

amended requirements imposed by the State Legislature in Chapter 2007-204, Laws of Florida

(HB 7203).~ In that regard, Pasco County has the following specific questions related to DRI

buildout dates and its Concurrency Management System:

1. Can Pasco County, pursuant to the Statutes and Rules, mandate in its Concurrency

Management System that a DRI is subject to additional local transportation concurrency

Copies of Pasco County's existing Comprehensive Plan and land development regulation provisions relating to transportation concurrency are attached hereto as Exhibits A and B. 3 A copy of the latest version of Pasco County's proposed amendments to its concurrency management land development regulations is attached hereto as Exhibit C.

review at a date that is sooner than a DRI buildout date that has been extended pursuant

Section 380.06(19)(~), Florida Statutes, if that DRI paid a proportionate share

contribution for local and regionally significant traffic impacts (hereinafter

bbProportionate Share") pursuant to Section 163.3180(12), Florida Statutes, as amended

by Chapter 2007-204, Laws of Florida (HB 7203)?


Management System, that a DRI is subject to additional local transportation concurrency


to Section 380.06(19)(~), Florida Statutes, if that DRI paid Proportionate Share pursuant

the version of Section 163.3 180(12), Florida Statutes that predated Chapter 2007-204,

Laws of Florida (HB 7203)?




to Section 380.06(19)(~), Florida Statutes, if that DFU paid Proportionate Share, or

otherwise mitigated, pursuant to Rule 9J-2.045(7), Florida Administrative Code, but did

not pay Proportionate Share pursuant to Section 163.3 180(12), Florida Statutes?




to Section 380.06(19)(~), Florida Statutes, if that DRI paid Proportionate Share, or

otherwise mitigated, pursuant to Rule 95-2.0255, Florida Administrative Code

(repealed), but did not pay Proportionate Share pursuant to Section 163.3 180(12),

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Florida Statutes?

5 . Can Pasco County, pursuant to the Statutes and Rules, mandate in its Concurrency



to Section 380.06(19)(~), Florida Statutes, if that DRI did not pay Proportionate Share

pursuant to any statute or rule?

PART 11. SPECIFIC QUESTIONS RELATED TO DRI DEVELOPMENT ORDERS

Although the specific language differs with each DRI development order, most DRI

development orders approved by Pasco County contain a provision requiring the following for

any extension or delay of the buildout date for the specifically approved DRI entitlements: A

new transportation analysis in accordance with Chapter 380.06, Florida Statutes, as the

basis for a development order amendment which may include reevaluation of the required

transportation mitigation (hereinafter the "Transportation Reevaluation Provision"). The

Transportation Reevaluation Provision is in most cases tied to the buildout date that was assumed

in the original DRI transportation analysis, and which formed the basis for any required

transportation mitigation. The Transportation Reevaluation Provision is not unique to any

particular type of transportation mitigation rule utilized by Pasco County DRIs, and it appears in

every type of DRI development order referenced in Part I. To date, neither the Department nor

any DRI developer has filed an appeal or other legal challenge relating to the Transportation

Reevaluation Provision in any specific DRI development order. However, the recent adoption of

Chapter 2007-204, Laws of Florida (HB 7203), and specifically the addition of the language

relating to the "under active construction" 3-year extension of DRI buildout dates, has caused

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Pasco County to be doubt as to whether it can enforce the Transportation Reevaluation

Provision. More specifically, Pasco County has the following questions related to the

application of the Statutes and Rules to the Transportation Reevaluation Provision:

1. Assuming Pasco County or another body of competent jurisdiction interprets the

Transportation Reevaluation Provision to be a form of regional DRI review, 4

because Chapter 380.06, Florida Statutes is referenced in the Provision, or for other

reasons, do the Statutes and Rules prevent Pasco County from enforcing the

Transportation Reevaluation Provision?

2. Assuming Pasco County or another body of competent jurisdiction interprets the

Transportation Reevaluation Provision to be a form of local review only: because

the reference to Chapter 380.06 is solely to describe the technical requirements of the

required transportation analysis, or for other reasons, or assuming Pasco County

modifies the Transportation Reevaluation Provision to clarify that it is for local

review only, do the Statutes and Rules prevent Pasco County from enforcing the

Transportation Reevaluation Provision?

4 Pasco County is specifically not requesting that the Department interpret the Transportation Reevaluation Provision, because such an interpretation would likely be beyond the Department's authority under Section 120.565, Florida Statutes. Rather, Pasco County is requesting that the Department issue a Declaratory Statement to resolve a question as to how the Statutes and Rules may apply to particular factual circumstances. Pasco County requests that the Department assume, in answering both questions, that Pasco County will never utilize the Transportation Reevaluation Provision to find a buildout date extension to be a substantial deviation.

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PART 111. SPECIFIC QUESTIONS RELATED TO THE PHRASE "UNDER ACTIVE CONSTRUCTION" IN SECTION 380.06(19)(C), FLORIDA STATUTES

1. Does the phrase "under active construction" include construction that has physically

commenced, but has not yet been completed?

2. Does the phrase "under active construction" include construction that has been

permitted, but has not yet physically commenced?

3. Does the phrase "under active construction" include construction of on-site horizontal

infrastructure only, if no vertical entitlements within the DRI are under active

construction?

4. Does the phrase "under active construction" include construction of off-site

horizontal infrastructure only, if no on-site horizontal infiastructure and no vertical

entitlements within the DRI are under active construction?

5. Can a DRI be "under active construction" if it is in default of one or more of its

development order obligations?

PART IV. SPECIFIC QUESTIONS RELATING TO SECTION 380.032 AGREEMENTS

What is the effect of the "under active construction" 3-year buildout date extension in

Section 380.06(19)(~), Florida Statutes on a more restrictive obligation in a Section 380.032

Agreement? For example, the Trinity Communities DRI has entered into a Section 380.032

Agreement with the Department, which was executed by the Department on December 8,

2006.' The Agreement contains an obligation for the Trinity Communities DRI to obtain an

extension of the buildout date of Phase I from December 13,2006 to December 13,201 1 no

later than twenty-seven (27) months after the date that the Agreement was executed, and - - --

5 A copy of the Trinity Communities DRI Section 380.032 Agreement is attached hereto as Exhibit D.

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further requires the NOPC to include an updated transportation analysis and adequate

mitigation for all impacts of the existing and increased development. Assuming the Trinity

Communities DM is determined to be "under active construction" on July 1, 2007, can the

Trinity Communities DRI now ignore the obligations in the Section 380.032 Agreement and

simply rely on the 3-year extension in Section 380.06(19)(~), Florida Statutes? Or is the

Trinity Communities DRI obligated to fulfill the existing requirements of the Section

380.032 Agreement? Or is the Section 380.032 Agreement modified by operation of law to

only require an extension of the Phase 1 buildout date from December 13,2009 to December

13,201 l ?

PART V. SPECIFIC QUESTION RELATING TO THE REQUIRED PROCEDURE FOR IMPLEMENTATION OF THE 'UNDER ACTIVE CONSTRUCTION" 3-YEAR

BUILDOUT DATE EXTENSION

Does implementation of the "under active construction" 3-year buildout date extension in

Section 380.06(19)(~), Florida Statutes require a local government development order

amendment?

OTHER LAW RELEVANT TO THE SPECIFIC QUESTIONS

Pasco County believes that the following legal authority, other than the cited Statutes and

Rules, may be relevant to one or more of the specific questions posed to the Department:

1. Bay Point Club, Inc. v. Bay County, 890 So. 2d 256 (Fla. lSt DCA 2004), particularly as

to the questions posed in Parts I, 11, and V.

2. Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d 101 1 (Fla. 2d DCA 2005),

and other case law relating to preemption and conflicting state and local laws, particularly

as to the questions posed in Parts I, I1 and V.

3. Article 1, Section 10 of the Florida and United States Constitutions, Pomponio v.

Claridae of Pompano Condominium, Inc., 378 So. 2d 774 (Fla. 1979), and other case law

related to unconstitutional impairment of contracts, particularly as to the questions posed

in Parts I1 and V. Pasco County recognizes that the Department cannot decide the

constitutionality of the Statutes and Rules, and Pasco County is not requesting such a

decision. However, to the extent that the Statutes and Rules, or the Department's

answers to the questions related to the Statutes and Rules, would result in an

unconstitutional impairment of Pasco County's DRI development orders, Pasco County

specifically reserves the right to raise this issue on appeal, or in a subsequent proceeding.

See, e.n.. Great House of Wine, Inc. v. Florida Department of Business & Professional

Regulation, Division of Alcoholic Beverages & Tobacco, 752 So. 2d 728 (Fla. 3d DCA

2000).

DESCRIPTION OF THE POTENTIAL IMPACT AND SUBSTANTIAL EFFECT OF THE STATUTES AND RULES ON PASCO COUNTY'S INTERESTS AND

CIRCUMSTANCES

Pasco County is a "substantially affected person" pursuant to Section 120.565(1), Florida

Statutes, and Pasco County is substantially impacted by the application of the Statutes and

Rules, for the following reasons:

1. Pasco County has a statutory and legal obligation to apply its Concurrency Management

System and the Transportation Reevaluation Provision to DRIs in Pasco County, except

to the extent the Statutes and Rules provide otherwise.

2. Because Pasco County generally guarantees transportation concurrency capacity through

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the buildout date of a development's traffic study, for both DRIs and non-DRIs, Pasco

County is having difficulty assessing the legal and financial impact of the "under active

construction" 3-year buildout date extension for DFUs, and amending its concurrency

management system to address such impact, unless further clarification is provided by the

Department on the issues raised in this Petition.

3. To the extent Pasco County is limited in its ability to require DRIs to reanalyze, and

mitigate for, transportation impacts under its Concurrency Management System or the

Transportation Reevaluation Provision as a result of the application of the Statutes and

Rules, Pasco County will likely lose proportionate share revenue or improvement projects

from DRIs, and will have to utilize other h d i n g sources to address DRI-related

transportation deficiencies. As a result, such an application of the Statutes and Rules

will likely make it more difficult for Pasco County to develop a financially feasible

Capital Improvements Element for transportation facilities as required by state law andlor

make it more difficult for other development projects in Pasco County to satisfy

transportation concurrency.

4. To the extent Pasco County, as a result of the application of the Statutes and Rules, is

limited in its ability to require DRIs to reanalyze, and mitigate for, transportation impacts

under its Concurrency Management System or the Transportation Reevaluation Provision

at the buildout date assumed in the original DRI transportation analysis, Pasco County

will be severely limited in its ability to require DRI developers to assume realistic

buildout dates in the original DRI transportation analysis.

5. To the extent the "under active construction" 3-year buildout date extension is

determined under the Statutes and Rules to be a "free" 3-year transportation concurrency

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capacity reservation for all active construction DRIs, regardless of land use, it reduces the

efficacy of "free" transportation capacity reservation extensions already authorized under

the County's concurrency management system for land uses that the County encourages

under its Comprehensive Plan, including Target Industries, Employment Centers,

Traditional Neighborhood Development (TND), affordable housing, and governmental

uses, such as schools. Section 402.7.B.1. of the Pasco County Land Development

Code. Furthermore, a "free" 3-year transportation concurrency capacity reservation for

all active construction DRIs in Pasco County could impair the ability for Target

Industries, Employment Centers, TND projects, affordable housing projects and

governmental uses to initially satisfy transportation concurrency. Because Pasco County

has a disproportionate number of DRIs in the Tampa Bay region relative to its

population, this could place Pasco County at an economic disadvantage relative to

surrounding counties, and make it more difficult for Pasco County to find suitable

locations for affordable housing projects and schools.

6. Pasco County believes that an official statement of the Department's position regarding

the issues raised in the Petition will help avoid costly litigation, by helping Pasco County

select the proper course of action in advance.

DISCUSSION REGARDING WHETHER THE PETITION REQUESTS A POLICY STATEMENT OF GENERAL APPLICABLITY OR PURELY HYPOTHETICAL

QUESTIONS

1. Policy Statement of General Applicability--The specific questions raised in Parts I, I1 and

IV are clearly not requests for a policy statement of general applicability, and relate to the

particular circumstances of Pasco County, because Pasco County is one of the few local

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governments that has imposed, or attempted to impose, more stringent requirements

relating to DM buildout dates than those set forth in Section 380.06(19)(~), Florida

Statutes. Pasco County also believes that the specific questions raised in Parts 111 and V

relate to the particular circumstances of Pasco County, because of the disproportionate

number of DRIs in Pasco County that were potentially under "active construction" on

July 1, 2007 relative to other local governments in Florida, and because not all Florida

local governments have DFUs that were potentially under "active construction" on July 1,

2007 and seeking to utilize the 3-year buildout date extension. See, ex., Chiles v.

Department of State, Division of Elections, 71 1 So. 2d 151, 154 (Fla. lSt DCA 1998)

("[A] declaratory statement is not transformed into a rule merely because it addresses a

matter of interest to more than one person.") However, to the extent the Department

determines that the specific questions in Parts I11 and V, or any of the other specific

questions, are requests for policy statements of general applicability, Pasco County

requests that the Department either (a) issue the Declaratory Statement answering the

specific questions, and then announce its intention to initiate rulemaking to establish an

agency statement of general applicability, see Florida De~artment of Business and

Professional Regulation, Division of Pari-Mutuel Wagering v. Investment Corp. of Palm

Beach, 747 So. 2d 374 (Fla. 1999), or (b) issue the Declaratory Statement answering the

specific questions, because the Department lacks statutory authority to initiate

rulemaking to address the specific questions.

2. Purely Hypothetical Questions-The specific questions set forth in the Petition are not

purely hypothetical questions, because Pasco County has approved DRIs that fall into

each of the factual scenarios set forth in Parts I, 111, and IV, and some version of the

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Transportation Reevaluation Provision referenced in Part I1 appears in numerous Pasco

County DRI development orders. Pasco County is requesting that the Department

answer the specific questions raised in the Petition to help Pasco County plan its future

conduct related to these DRIs. See, e.g.. Adventist Health SystemlSunbelt, Inc. v.

Agency for Health Care Administration, 955 So. 2d 1173 (Fla. 1" DCA 2007). Although

the specific questions in Part I1 do involve two potential interpretations of the

Transportation Reevaluation Provision, the questions are still not "purely hypothetical,"

because the questions are intended to help Pasco County plan its future conduct under

either interpretation of the Transportation Reevaluation Provision. See Id. In addition,

because both interpretations of the Transportation Reevaluation Provision have already

been asserted, one by legal representatives of numerous Pasco County DRIs, and one by

Pasco County, the questions are "live issues" that affect Pasco County personally, rather

than purely hypothetical situations unrelated to Pasco County's personal situation.

Investment Corn of Palm Beach, 747 So. 2d at 383 (quoting Investment Cop. of Palm

Beach v. Division of Pari-Mutuel Wagering, 714 So. 2d 589,594 n.7 (Fla. 3d DCA 1998)

(Cope, J., dissenting)). Nevertheless, in the event the Department determines the specific

questions in Part I1 to be bbpurely hypothetical" because they involve two potential

interpretations of the Transportation Reevaluation Provision, Pasco County requests that

the Department only answer the second question in Part 11, because the question assumes

the interpretation already asserted by Pasco County.

ADDITIONAL FACTS

To the extent the Petition does not contain enough facts for the Department to answer the

specific questions raised in the Petition, Pasco County requests that the Department either

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(a) request additional facts fiom the Petitioner, or (b) hold a hearing to determine the

additional facts. See Adventist Health System, 955 So. 2d at 1176 n.3.

Respectfhlly Submitted,

&/L Robert Surnner, ~odnty Attomey (0079377) David A. Goldstein, Senior Assistant County Attomey (FBN: 999962) West Pasco Government Center 7530 Little Road, Suite 340 New Port Richey, FL 34654 Telephone: (727) 847-8 120 Facsimile: (727) 847-802 1 Attorneys for Pasco County, Florida

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served by U.S. Mail to Paula Ford, Agency Clerk, Department of Community Affairs, 2555 Shurnard Oak Boulevard, Tallahassee, FL 34399-2100 on this ? day of January, 2008.

A

David A. Gc Adstein, Esquire Senior Assistant County Attorney

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