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.


Polk Oks ‘Toilet To Tap’ Pilot Study

Polk officials today approved a cooperative funding agreement with the Southwest Florida Water Management District to conduct a pilot study of the technical and financial feasibility of using highly treated sewage as a future source of drinking water.

Polk Utilities Director Tamara Richardson said the pilot study will be completed within two years. She said if the study concludes the conversion is feasible, the source could be tapped within eight to 10 years.

This is among the alternative water sources that may be available to meet expected demand that will outstrip the current use of the Upper Floridan Aquifer.

County and city officials are also studying a plan to tap the lower-quality water in the Lower Floridan Aquifer. That approach will require building something akin to a desalination plant to bring that water to drinking water standards. It will also require the installation of a countywide pipeline system to deliver the treated water to local utilities.

One question the study will answer is whether treating sewage to drinking water standards is cheaper than the well projects, which involve not only well and treatment plant construction and the pipeline, but construction of an even deeper well to get rid of the treatment plant’s brine residue.

The project approved Tuesday would involve water at the county’s Northwest Regional Plant in the Lakeland suburbs. Richardson said the plant produces about 1 million gallons of treated wastewater a day and at the moment is simply discharged rather than being reused to some way to offset the region’s water demand.

Winter Haven officials recently agreed to participate in a similar study partly financed by Swiftmud. The city discharges its treated sewage into the Peace Creek Drainage Canal.



Suit Will Test Polk’s Developer-Friendly Policy Rationale

A recently filed lawsuit may resolve a long-simmering dispute that has pitted rural homeowners against developers and Polk’s developer-friendly planning practices.

The specific case involves repeated attempts to win approval for various versions of a subdivision in a still-rural section near Kathleen, an unincorporated area north of Lakeland.

It involved creating a subdivision with as much as 10 times the density of the adjacent rural homesteads.

The rationale for approval by county planners has included one of the made-up sops to developers that give them extra density credits for not developing wetlands on their property even though a lot of wetlands are undevelopable anyway and a policy that says that if there is denser development on a majority of the land within two miles of the project site, it’s okay to approve denser development here. Sometimes they also throw in the transit-supported development district overly even in areas where transit use isn’t likely to justify higher density.

The rationale for that two-mile policy and its application appears to be at the heart of the court challenge, according to a report in The Ledger.

The controversy over this development, which was first proposed in some form or another a couple of years ago, spawned a short-lived effort to draft regulations to better define compatibility to give developers some way to predict when their proposal would be approved. The effort ended when it became clear that compatibility is always a subjective judgment.

Subsequent controversial public hearings, such as the decision on whether to allow a solar farm in the middle of the Chicora community in southwest Polk, have reinforced this conclusion.

The rural solar farm disputes are now moot. The Florida Legislature has stepped in to tell local officials that solar farms can go into any rural agricultural area with a willing seller and they don’t have much say in the matter.

Legislators also passed a measure to include a property rights element in local growth plans. In land-use cases, property rights claims cut both ways, so it will be interesting to see what the effect will be and whether the rules will be written to accommodate development interests at the expense of surrounding homeowners since property rights claims have been raised in some recent development cases.







Former Polk Commissioner Hall Named To Swiftmud Board

Former Polk County Commissioner John Hall has been appointed by Gov. Ron DeSantis to the Southwest Florida Water Management District Governing Board, subject to Florida Senate confirmation.

Hall’s name was submitted last year by the Polk Regional Water Cooperative at a time when there were numerous long-standing vacancies on this and other water boards around the state.

This is one of two seats on the board allocated for Polk County.

The other seat is held by Ashley Bell Barnett of Winter Haven, who was appointed in December.



Winter Haven To Study Toilet-To-Tap Feasibility

The quest for alternative water sources includes looking at more efficient ways of using—or reusing—Polk County’s available water supply is taking a new turn.

Winter Haven officials recently received funding from the Southwest Florida Water Management District for a $200,000 feasibility study to explore turning the 4 million gallons a day of treated sewage the city discharges into a tributary of the Peace River into drinking water.

Most of the other major sewer plants in Polk County eliminated surface discharges long ago. That water, referred to by the sanitized term “reclaimed” water, has been committed to lawn irrigation or power plant cooling.

An important aspect of these studies will involve examining water quality issues. In addition to existing standards for contaminants such as bacteria and metals, the study is supposed to look at what are known as contaminants of emerging concern. This refers to chemicals found in pharmaceuticals, personal care products, household products, pesticides and other synthetic chemicals. Some are suspected of being endocrine disrupters, which can cause cancer and birth defects.

Detection of these chemicals is not part of typical drinking water analyses. They are an issue in treated sewage because people flush unused pills and other items down toilets to dispose of them. Sewer lines are also subject to infiltration of groundwater contaminants because, unlike water lines, they are not pressurized.

The study could point to the need to conduct additional treatment of this wastewater to make it suitable for human consumption.

The study is part of a larger effort to meet future water demand in response to projected population growth in Florida.

Other local projects being considered by the Polk Regional Water Cooperative include two Lower Florida Aquifer well complexes at the edge of the Green Swamp Area of Critical State Concern in northwest Polk and the Lake Walkinwater area in southeastern Polk, development of a reservoir somewhere along the Peace River and water storage in wetlands along the Peace Creek Drainage Canal.







American Wetlands Month Is A Time To Reflect On A Sometimes Neglected Habitat That’s Worth Protecting

Wetlands are one of the major features of Florida’s landscape.

Before the draglines and the steam shovels that preceded them turned lush landscapes into drained wastelands, wetlands were an even more prominent landscape feature in this state.

Some restoration has occurred since then.

The Kissimmee River marshes are returning. So are parts of the historic Everglades marshes farther south.

The Banana Creek Marsh at Circle B Bar Reserve near Lakeland was once pumped dry for cattle grazing. It’s now wet again.

Lake Gwyn Park in Wahneta was created after a drainage ditch was filled in and natural water regimes were allowed to return. Lush wetlands followed.

There are smaller examples of less extensive wetlands within subdivisions or at the edges of local parks.

Some are managed for the vegetation and wildlife populations they harbor, providing important microhabitats.

Others are overmanaged, perpetuating the unnatural idea that landscapes should be neat and tidy with no room for wildness. Habitat is not the vocabulary of those sites’ managers.

That approach summons the memory of the Scythians, an ancient tribe that laid waste to everything in its path to deprive pursuing armies of any resources to sustain them.

Habitat needs to be sustainable if it is to have any real value.

This was brought to mind when word reached me that May is American Wetlands Month, an observance created in 1991 by the U.S. Environmental Protection Agency to celebrate the importance of wetlands by educating the public about their features and how to enjoy them.

I’ve been enjoying some local wetlands lately.

Most recently I visited some neighborhood wetlands.

I saw wading birds, marsh birds, marsh rabbits, dragonflies and wildflowers. I saw several species of sedges, the cousins of our grasses. A Brown Pelican, some Wood Ducks and a pair of Black-bellied Whistling Ducks passed overhead.

Before that I hiked on a berm through a larger regional wetlands.

The wildlife species was even more diverse. I saw more than 25 species of birds during just a short visit.

Black fuzzy Common Gallinule chicks trailed their parents at the water’s edge.

A pair of Sandhill Cranes foraged with their nearly full-grown offspring.

Migratory species are still around.

A startled Sora, a species of rail, suddenly leaped out of the tall grass and settled in just as quickly.

A flock of Bobolinks was still fueling up amid a stand of Barnyard Grass.

An Osprey circled overhead before diving for a fish.

The more time you spend watching wetlands, the more its floral and faunal diversity will become evident.

It should make anyone an advocate for protecting them.