Lakeland Takes Different Approach In Zoning Lawsuits

Lakeland is facing two federal lawsuits over the City Commission’s decision to deny applications erect a couple of cell towers in different neighborhoods, The Ledger reports.

These lawsuits allege the city’s decision was not based on much besides the number of residents who showed up to oppose the projects, arguing everything that the private property owner should build something on their property to raising concerns about the health effects about emissions from the towers.

However, unlike a lawsuit filed earlier this year over the Polk County Commission’s decision to approve a suburban development next to rural homesteads, Lakeland’s lawsuit will be defended by its own legal staff rather than hiring outside counsel for what will probably amount to a tidy sum.

Although the facts and law are different in the two cases, it will be interesting to see if the outcomes are any different.


DEP Head Vacancy, Politics and The Law Collide

Noah Valenstein’s resignation as the head of the Florida Department of Environmental Protection has touched off an interesting debate over executive power that may still be an issue during next year’s election.

Gov. Ron DeSantis recently announced he planned to name the new FDEP head all by himself without consulting the Florida Cabinet.

As it turns out, one of DeSantis’ announced opponents in his bid for re-election is Cabinet member Nikki Fried, Florida’s secretary of agriculture and consumer services.

She pushed back, charging that was illegal.

No, it’s not, DeSantis replied.

A check of the Florida Constitution and Florida statutes shows Fried was right.

20.055 (1) of Florida statutes reads:

The head of the Department of Environmental Protection shall be a secretary, who shall be appointed by the Governor, with the concurrence of three members of the Cabinet. ”

Section 6 of the Florida Constitution reads:

“When provided by law, confirmation by the senate or the approval of three members of the cabinet shall be required for appointment to or removal from any designated statutory office.”

Florida has a three-member Cabinet, so that means the vote must be unanimous.

That means Fried potentially has veto power if DeSantis appoints, for instance, someone with strong ties to the enterprises the department is supposed to regulated.

That also may be why DeSantis doesn’t want to deal with any dissenting voices if he is thinking of making some Trump-like appointment (coal lobbyist to head EPA), which would mirror some of the other decisions that have emerged from DeSantis’ office recently.

Just for the record, Sierra Club has made no endorsements in the governor’s race.

Sierra does support strong environmental protection and who leads the agency sets the tone for whether the protection is strong or weak.



Now That Commercial Franchising Issue Settled, Can Polk County Commission Turn Its Attention To Broken Recycling System?

Polk commissioners voted 3-2 today to ditch a proposal by Waste & Recycling Director Ana Wood to get them to vote to consider commercial garbage franchising.

Ever since this idea surfaced earlier this year, the rationale has been a mystery.

Wood’s presentation that followed a video about how wonderful the landfill is because of its space and central location focused on a legislative-imposed deadline for deciding whether to get into commercial franchising.

It took persistent questioning from commissioners to draw out the reason this was even taking up their time in the first place.

As it turns, landfill revenue has not risen as projected, Wood testified, but was a little vague about what exactly accounted for that.

One possibility is that Republic Services, which contracts for commercial hauling and also operates a private landfill in Bartow, may have been taking its garbage to its own landfill.

A commercial franchise system could perhaps force Republic and any other commercial hauler to use only the county landfill, though the law is little murky on that point, commissioners were told.

That brought pushback from Commissioner George Lindsey, who said he didn’t think it was good public policy to use that policy as a hammer to squeeze private enterprise to the county’s financial advantage.

Besides, he and other commissioners concluded, there was really no problem with the current system that the public was clamoring to change.

If there is one issue about which the public is clamoring for reform, it is Polk County’s recycling system.

The main problems are the confusion over what to recycle, which varies depending on where you live in the county for no reason that anyone has yet presented and the lack of a coherent educational or enforcement campaign to deal with the widespread contamination of recycling carts by people who are either wishful recyclers or ignoramuses who simply use their recycling cart as a second garbage cart.

Other counties offer much clearer information on this issue. There has been a discussion about hosting some kind of countywide forum among local officials involved in solid waste decisions to come up with a more consistent message to the public.

So far all that it has been is talk.

It’s long past time for action.




Developer Hopes and Fiscal, Political Reality Collide in Polk

It seems nothing much has changed regarding the Polk County Commission’s willingness to further increase taxes or to go further into debt since I reported from the annual retreat that when the idea of seeking the fourth sales tax increase for roads in 30 years arose.

The Ledger reports in a followup story now that it has hired someone to cover county government again that the commission majority’s aversion to asking for more taxes has not changed since then.

You have to understand that although previous commissions tried and failed three times to persuade voters to pay higher sales taxes to fix a road backlog that was largely of their own making, they did raise taxes elsewhere to fund roads.

They raised the gas tax to the max , they added a special property tax for roads and they used most of the former Polk County Environmental Lands tax proceeds after the 20-year voter mandate expired. Those tax increases didn’t require a referendum.

A lot of this was developer-driven to meet transportation concurrency back when Florida had growth-management regulations that were enforced.

One key reason there are backlogs in road network capacity is that because for years Polk County approved development on the cheap. Road impact fees were either non-existent, temporarily suspended or imposed at a rate lower than what was required to fund the projects new growth was making more urgent. The local development community was the main opponent to impact fees.

The results were predictable.

So, it should not surprise anyone when voters look around and see what kinds of development decisions the County Commission has made—or refused to make—they are not eager to pour more money down the same rat hole to subsidize more of the same.

Finally, it might be useful to take a harder look at this long list of road projects to sort out which ones are true needs to solve real problems and how many of them are simply on someone’s wish list.

I’d add that it is hard to argue that in one of the fastest growing areas in the third-most populous state in the nation that traffic congestion will be the norm from now on in many places. Get used to it.


Are New Roads Really The Answer To Northeast Polk’s Traffic Congestion Problems Or Just More Sprawl?

For the past couple of years transportation planners and local economic development officials have been huddling to come up with some recommendations for dealing with the increasing congestion along the U.S. 27 corridor.

It was no surprise, then, that when a report was presented to the Polk Transportation Planning Organization today the formerly shelved eastern leg of the Central Polk Parkway was back in the mix.

This proposed toll road’s route winds through northeast Polk near conservation l ands in the Marion Creek Basin and through what was once a totally rural area that is gradually seeing suburban development as Haines City and neighboring cities annex eastward.

Local economic development officials lobbied for the road years ago because it would open more land to industrial development, residential development and commercial development. Urban sprawl, in other words, which they consider a good thing.

But tying this road’s justification to traffic congestion on U.S. 27 is a bit of a stretch.

The fact is that tens of thousands of cars and trucks are clogging U.S. 27 every day is because people are commuting or traveling or hauling freight to and from destinations along this major highway or other highways such as Interstate 4 that intersect it.

Building a beltway around cities along U.S. 27 will simply add another feeder road that will ultimately simply increase the highway’s congestion.

And that’s not all.

There are proposals to extend Power Line Road east of Haines City to run from somewhere north of Davenport, maybe around the eastern end of Ernie Caldwell Boulevard , and south toward the outskirts of Lake Wales.

Meanwhile, there was another proposal to four-lane a section of Deen Still Road in the Green Swamp Area of Critical State Concern and continue that road-widening project down Old Grade Road to I-4. Local Sierra leaders spoke against this idea at today’s meeting because it could lead eventually to more pressure to develop deeper in the GSACSC and would not divert enough traffic from U.S. 27 anyway to justify the expense and ecological damage it would cause.

Another idea would extend County Road 547 westward from Davenport into another section of the Green Swamp to connect to Polk City Road at the edge of Hilochee Wildlife Management Area.

A major gap in the presentation was the lack of any mention of using improved transit to reduce congestion, This could benefit the large number of people who work at tourist attractions and the hotels and restaurants around them and now have little choice but to drive to work. This is especially significant since Polk planners several years ago created a so-called Transit-Oriented Development District overlay that allowed much denser development in the U.S. 27 corridor and elsewhere, arguing it would create higher density that would encourage transit.

So far all it has done is to create the higher density and higher traffic congestion.

The good news, if there is any, is that none of these projects are in anyone’s transportation budget at the moment and it could be some time before there is any funding.

Watch for further discussions at future TPO meetings and public workshops as project studies emerge.

Finally, monitoring some of what is occurring is not as easy as it once was.

The TPO has decided to meet at a sports complex in Winter Haven instead of the County Commission board room in Bartow. That means the meetings are not recorded and broadcast on PGTV where the proceedings are easier to review. It also means the meetings are being held in a room with poor acoustics and an intermittently dysfunctional sound system, which means even if you take time to attend the meeting in person, it may be difficult to hear the discussions among board members.

A more transparent process might be worth considering.





The Legal Defense Of Development Decisions Cost Dilemma

A story published recently in The Ledger raised an intriguing point.

It involves how the County Commission responded when one of its development decisions this year was challenged in court.

These suits don’t happen often and two cases that come to mind didn’t end well for the county.

They approved a mining permit that was actually a prelude to preparing land for development and lost.

They denied a permit for a development on Lake Kissimmee that was started without a permit and still lost.

Once upon a time courts generally deferred to the judgment of local elected officials, but those days are long past.

The current lawsuit challenges a decision to allow suburban-density development next door to rural multi-acre homesteads after denying development proposals on the same site at earlier hearings.

The issue that was raised by the plaintiffs and their lawyer was why is the entire cost of defending the lawsuit is being paid by the taxpayers, especially since it will involve hiring an outside private law firm for what is likely to be a hefty cost to taxpayers.

There was some discussion—and that’s all it is at this point— among county commissioners about developing some sort of policy to require the developer to share the litigation costs.

How that would be structured—if it even occurs– hasn’t been decided.

One logical place to put such a provision is in the development order that ratifies the county’s decision. That may require an amendment to the county’s development regulations or some new ordinance to authorize it.

That’s providing such a practice is found to be legally permissible in the first place. I’m sure the county’s legal staff is researching that question.

County staffers likely will also be looking around to see if any other jurisdictions have any policy of this sort or would any action Polk take set a precedent. And, if it does, would it expose the county to lawsuits from developers who could argue they proceeded in good faith relying on county regulations and shouldn’t be held financially responsible if there’s a legal challenge.

Legal questions and issues can be very complicated and this one is no different.

Of course, if the Polk County Commission didn’t pass what are sometimes fairly permissive development regulations with all kinds of exemptions and density transfers and other manufactured developer rights, they might not have ended up in this position in the first place.

Green Swamp Road Pressure Coming From All Directions


Polk County’s proposal described in this space earlier this year to extend Deen Still Road through conservation lands –including a state park–under the guise of improving traffic flow turns out not to be an anomaly.

The Tampa Bay Times now reports another proposal by the Florida Department of Transportation, which 45 years ago proposed a new highway through the center of the Green Swamp Area of Critical State Concern to connect U.S. 27 to U.S. 98, is now proposing a bypass route around Zephyrhills through other conservation lands to connect U.S. 301 to U.S. 98.

Meanwhile, at next week’s Polk Transportation Planning Organization, the FDOT’s so-called U.S. 27 Mobility Study, which initially involved state transportation officials and local business interests, includes two proposals to extend or improve roads through the Green Swamp.

One involves what has turned out to be an improved truck route –details are sketchy–along Deen Still Road and Old Grade Road at the edge of two units of Hilochee Wildlife Management Area as the result of a decision many years ago by Polk County officials to pave the roads to reduce their maintenance costs.

Another involves a proposal to extend County Road 547 westward from Davenport to connect to Polk City Road near a historic African-American community and at the edge of Hilochee.

These are supposedly unfunded long-range transportation proposals., but road plans have a long life and some are eventually advanced when no one’s paying attention.