title
LAND USE CHANGE - HATCHET CREEK (B)
Ordinance No. 0-07-97, Petition 23LUC-07PB
An Ordinance amending the City of Gainesville 2000-2010 Comprehensive Plan Future Land Use Element and Future Land Use Map; by overlaying the "Planned Use District" category over certain property with the underlying land use categories of "Single-Family (up to 8 units per acre)," "Industrial," and "Recreation," as more specifically described in this ordinance, consisting of approximately 498 acres, generally located in the vicinity of Waldo Road on the East, NE 39th Avenue on the South, NE 15th Street on the West, and NE 53rd Avenue on the North; by creating and adopting Policy 4.3.5 in the Future Land Use Element of the Comprehensive Plan; providing time limitations; providing directions to the City Manager; providing a severability clause; providing a repealing clause; and providing an effective date.
recommendation
The City Commission (1) receive the Objections, Recommendations and Comments Report from the State Department of Community Affairs; (2) review the amendments as proposed by City staff and the applicant; (3) amend the ordinance, as appropriate; and (4) adopt the ordinance, as amended.
explanation
PLANNING & DEVELOPMENT SERVICES DEPARTMENT STAFF REPORT
On June 16, 2008, the City Commission approved this ordinance, by a vote of 6-0, for transmittal to the Florida Department of Community Affairs (DCA) for review in accordance with state law. On August 26, 2008, DCA issued its Objections, Recommendations and Comments (ORC) Report to the City. In the ORC Report, DCA objected that the comprehensive plan amendment was not in compliance with Sections 163.3177(1), and (6)(a), Florida Statutes, and with Rule 9J-5.005(2)(g), Florida Administrative Code. The ORC Report states that "The City has proposed policy 4.3.5 to guide development on the Hatchet Creek amendment site (Ordinance 070210). As proposed, Policy 4.3.5.d is self amending. The proposed policy would allow a different version of the Airport Noise Zone Map at the PD zoning stage from that adopted into the Comprehensive Plan through proposed Policy 4.3.5. Land development regulations and development orders are to be consistent with the adopted comprehensive plan. Allowing the PD to control land use and allowing a different version of the Airport Noise Zone map at the PD zoning ordinance stage from that included with the Comprehensive Plan is self-amending and creates potential inconsistency between the PD zoning and the Comprehensive Plan." The DCA's recommendation states: "The City should revise the policy to delete the reference to allowing the PD to control land use and allowing a different map at the PD zoning stage. The Airport Noise Zone map referenced in the Policy needs to be adopted into the plan. Alternatively the City may adopt it by reference however, the City must include the date, author and source of the map should it be adopted by reference. Any updated Airport Noise Zone map should be incorporated into the plan through the plan amendment process."
Planning staff reviewed the DCA's recommendation with legal staff and has revised Policy 4.3.5.d. in the ordinance as recommended by the DCA. In light of the City Commission adopting an ordinance revising the Airport Hazard Zoning Regulations on December 3, 2009, the substance of the revised regulations, including a new map, has been incorporated into this Ordinance. In addition, since the transmittal hearing on June 16, 2008, the Property has been added to the City's Transportation Concurrency Exception Area and is no longer governed by the Proportionate Fair Share Program. Therefore, the transportation concurrency conditions have been revised accordingly. The applicant concurs with these revisions.
Pursuant to Section 163.3184(7)(a), Florida Statutes, the City has 60 days from receipt of the ORC report (in this case August 26, 2008) to "adopt the amendment, adopt the amendment with changes, or determine that it will not adopt the amendment."
On October 16, 2008, the City Commission held a public hearing at the adoption stage on the Ordinance and, by a vote of 5-2, approved 1) continuing the Ordinance until the adoption hearing for the DCA No. 08-02 cycle pursuant to the applicants request for continuance; 2) directing staff to interact with the developer and provide an analysis on the impact of removing the age restriction - paragraph gg of the Ordinance; and 3) requesting that staff draft policies for inclusion in the Ordinance that reflect how the proposed development will meet subparagraphs 30-211 (b)(1) and (b)(7) of the City Land Development Code.
With respect to removing the age restriction, City Planning staff contacted the applicant's legal counsel to discuss the matter and received a written response dated January 12, 2009, as follows:
"The applicant is still proposing an age-restricted community and agrees that Policy (gg) should stand as written in the ordinance. The Department of Community Affairs (DCA) requires that local governments include such restrictions in the comprehensive plan itself (not just in subsequent zoning ordinances) if the restriction forms the basis for the evaluation of maximum impacts of the development."
As set forth in a memorandum from the City Attorney's Office dated October 8, 2008, if the City makes substantive changes to the ordinance at the adoption hearing that were not reviewed by the DCA in the transmittal hearing (such as removing the age restriction), and the change is not supported by the applicant's existing data and analysis or by updated and reanalyzed data and analysis, the DCA could issue a notice of intent to find the plan amendment "not in compliance" and may subject the City to state imposed remedial action or sanctions, including loss of certain state funding.
With respect to including policies in the Ordinance that reflect how the proposed development will meet the purpose and intent of the planned development district, subparagraphs 30-211 (b)(1) and (b)(7) of the City Land Development Code read as follows:
"(b) Objectives. The PD provisions are intended to promote flexibility of design and integration of uses and structures, while at the same time retaining in the city commission the absolute authority to establish limitations and regulations thereon for the benefit of the public health, welfare and safety. By encouraging flexibility in the proposals which may be considered, while at the same time retaining control in the city commission over the approval or disapproval of such proposals, the PD provisions are designed to:
(1) Permit outstanding and innovative residential and nonresidential developments with a building orientation generally toward streets and sidewalks; provide for an integration of housing types and accommodation of changing lifestyles within neighborhoods; and provide for design which encourages internal and external convenient and comfortable travel by foot, bicycle, and transit through such strategies as narrow streets, modest setbacks, front porches, connected streets, multiple connections to nearby land uses, and mixed uses."
"(7) Promote the use of traditional, quality-of-life design features, such as pedestrian scale, parking located to the side or rear of buildings, narrow streets, connected streets, terminated vistas, front porches, recessed garages, alleys, aligned building facades that face the street, and formal landscaping along streets and sidewalks."
City Planning staff contacted the applicant's legal counsel to discuss following revisions (shown in double underline) to Policy 4.3.5 ff. in response to the City Commission's direction:
ff. At the time of application for PD zoning, the owner/developer shall provide design standards generally consistent with traditional neighborhood design concepts (such as pedestrian scale, parking located to the side or rear of buildings, narrow streets, connected streets, terminated vistas, front porches, recessed garages, alleys, aligned building facades that face the street, and formal landscaping along streets and sidewalks for all residential and non-residential uses in the PUD and, subject to City review and approval, those standards shall be specified in the PD zoning ordinance.
City Planning staff received a written response dated January 12, 2009 from the applicant's legal counsel, as follows:
"We do not believe that the new language suggested by staff should be included in the plan amendment. Despite numerous community meetings and hearings on the project, no members of the community have suggested that these are the design standards that should be applicable to the project. As originally recommended by staff, we believe that design standards are an appropriate subject of site plan approvals and that these should not be prejudged in the comprehensive plan."
On January 26, 2009, the City Commission again held the adoption hearings for the DCA No. 08-02 cycle ordinances and the agenda included the Hatchet Creek PUD Ordinance, as per the Commission action on October 16, 2008.
At the January 26, 2009 hearing, after much discussion of the status of updating the Airport Hazard Zoning Regulations including a new airport noise zone map and other matters, the Commission, by a vote of 4-3, approved 1) continuing the ordinance to the second DCA cycle of 2009, 2) requesting the petitioner submit a letter stating the path they will take upon the ordinance being continued, and 3) directed staff to work on unresolved issues.
On January 27, 2009, the applicant's legal counsel submitted a letter stating that they will work with the City toward adoption of reasonable amendments to the Airport Hazard Zoning Regulations and will update the data and analysis as necessary, before the ordinance is back before the Commission for adoption. In addition, the applicant confirmed that if DCA issues a notice of intent to find the plan amendment not in compliance, the applicant will withdraw this amendment.
On October 29, 2009, the City received the ORC report from DCA for the Cycle 09-02 land use change ordinance and, in accordance with the 60 day statutory requirement, scheduled these ordinances for adoption hearing on December 17, 2009. In accordance with the City Commission approval on January 26, 2009, this Ordinance was likewise scheduled for December 17, 2009.
On October 29, 2009, applicant's legal counsel communicated to City staff that the applicant concurs with the application of the new Airport Hazard Zoning Regulations to the property, requests that the age restricted community requirement be removed, requests that the "office and retail" limitation be lifted to allow for a broader range of Industrial uses, and again restates its understanding that the burden for updated data and analysis due to revisions is on the applicant. City staff has created a matrix that sets forth the revisions requested by the applicant and those requested by City staff for inclusion in the ordinance at this adoption reading and the staff analysis and recommendation concerning each requested revision.
CITY ATTORNEY MEMORANDUM
Florida Statutes set forth the procedure for adoption of an amendment to the Comprehensive Plan. The first hearing was held at the transmittal stage and was advertised seven days prior to the first public hearing. The second hearing will be held at the adoption stage of the ordinance and must be advertised five days before the adoption hearing.
The proposed amendment to the Comprehensive Plan was transmitted to the State Department of Community Affairs (DCA) for written comment after the first hearing. The comments, recommendations or objections of the DCA must be considered by the Commission at the adoption hearing. At the adoption hearing, the City Commission may adopt the ordinance, adopt the ordinance as amended, or not adopt the ordinance.
Following second reading, if the ordinance adopted or adopted with amendments, the Plan amendment will not become effective until the DCA issues a final order determining the adopted amendment to be in compliance in accordance with the Local Government Comprehensive Planning and Land Development Regulation Act, or until the Administration Commission (Governor and Cabinet) issues a final order determining the adopted amendment to be in compliance.