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2009-R-03 RESOLUTION NO. 2009-R-03 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, RECOMENDING CERTAIN CHANGES TO THE RULES OF PROCEDURE FOR THE VOLUSIA COUNTY GROWTH MANAGEMENT COMMISSION (VGMC) AS SETFORTH HEREIN AND REPEALING RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY AND APPLICABILITY AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the V olusia County Growth Management Commission (VGMC) was created in 1986 by referendum approving an amendment to the V olusia County Charter. WHEREAS, the V olusia County Charter provides that the purpose of the VGMC is to determine the consistency of the municipalities' and the county's comprehensive plans. WHEREAS, the ordinance adopted in 1987 by the V olusia County Council establishing the rules of procedure for the VGMC states that the main purpose of the VGMC is to provide an effective means for coordinating the plans of municipalities and the County by providing a forum for the local governments to cooperate with each other in coordinating the provisions of their respective comprehensive plans. WHEREAS, based on the language of the County Charter and the County Code of Ordinances it is clear that the VGMC was intended to be a forum through which local governments could try to resolve claims of inconsistency between comprehensive plans and if no resolution can be reached, the VGMC would make a final determination as to consistency. WHEREAS, local governments have the statutory right pursuant to the Growth Management Act to determine the future growth for their respective jurisdictions through the adoption and amending of their comprehensive plans, which the law views as the local government exercising it legislative authority. Legislative action is not overturned by a Court 1 2009-R-03 unless the local government clearly abuses its discretion. WHEREAS, under the existing VGMC rules, the adopting local government has the burden of proving that the comprehensive plan amendment is consistent with the comprehensive plans of adjacent local governments thereby shifting the burden of proof that exists in a court of law. Furthermore "consistency" is defined as compatible with and in furtherance of adjacent comprehensive plans. A plan amendment can be consistent with an adjacent local governments' comprehensive plan even though it does not further the goals and objectives of said comprehensive plans. WHEREAS, the City is concerned that the VGMC is exceeding the purpose for which the VGMC was created by: (1) reviewing comprehensive plan amendments when no dispute as to consistency exists between local governmental entities; (2) not limiting its review to issues that deal with the consistency between the proposed comprehensive plan amendment and the adjacent local governments' comprehensive plans; (3) placing conditions on findings of consistency which are basically site planning criteria, such as building height, density and setback; (4) placing conditions on findings of consistency for comprehensive plans and plan amendments requiring future VGMC review of rezonings and other development orders, which is not within the purview of VGMC's charter role; (5) granting party status to individuals who are not local governmental entities nor the owner of the property that the amendment to the future land use map is directly applicable. WHEREAS, if allowed to continue to exceed the purpose for which it was created, the City is concerned that the VGMC could effectively become a county-wide planning board, thereby divesting local governments of their planning authority as set forth in the Growth 2 2009-R-03 Management Act. NOW, THEREFORE, BE IT RESOLVED by the City Council of Edgewater, Florida; Section 1. The above WHEREAS are hereby incorporated as of specifically asserted herein. Section 2. To assure that the VGMC operates within the parameters of its original purpose, there are certain fundamental principles that should be adhered to, which are: (1) The VGMC's jurisdiction should be limited to determining whether a comprehensive plan amendment is consistent with adjacent jurisdictions' comprehensive plans when the adopting and objecting local governments are unable to resolve the dispute. (2) A plan amendment should be presumed consistent and the objecting local government has the burden of proving, by clear and convincing evidence, that the plan amendment is inconsistent. (3) Only a local governmental entity has the authority to file an objection for lack of consistency thereby triggering the VGMC involvement. The VGMC should not review any comprehensive plan amendment until an objection is filed. (4) The timeframes within which the VGMC operates must be consistent with the timeframes set forth in the Growth Management Act for the adoption of comprehensive plan amendments. (5) Only the applicant jurisdiction, adjacent jurisdictions and the property owner (or contract purchaser of subject property) that the future land use map amendment is applicable shall be granted party status in a hearing before the VGMC and the right to appeal VGMC decisions. All other individuals shall be allowed to participate pursuant to the Sunshine Law 3 2009-R-03 without the right of appeal. (6) The members appointed to the VGMC should not cause a violation of the dual office holding and should serve at the pleasure of the appointing local government. (7) A plan amendment should only be found inconsistent with an adjacent local government's comprehensive plan if the amendment results in the adjacent local government being out of concurrency or compliance with its comprehensive plan. (8) VGMC should not evaluate or make determinations on proposed rezonings and other proposed development permits as defined in Section 163.3164(7), Florida Statutes and should not impose as a condition of issuance of a certificate of consistency on a proposed comprehensive plan or comprehensive plan amendment the requirement that a subsequent proposed rezoning or other proposed development permit be evaluated or reviewed by the VGMC. (9) VGMC should not evaluate or make consistency determinations on whether a proposed comprehensive plan amendment is consistent with the comprehensive plan of the applicant jurisdiction, since such is the role of the governing body of the applicant jurisdiction. Section 3. The City Council of the City of Edgewater, Florida hereby recommends that Volusia County Council adopt the attached revised rules of procedure for the VGMC. Section 4. All resolutions or parts of resolutions in conflict herewith be and same are hereby repealed. Section 5. If any portion of this resolution is for any reason held or declared to be unconstitutional, inoperative, or void, such holding shall not affect the remaining portions of this resolution. If this resolution or any provisions thereof shall be held to be inapplicable to any 4 2009-R-03 person, property, or circumstances, such holding shall not affect its applicability to any other person, property, or circumstance. Section 6. The effective date ofthis Resolution shall be upon adoption. After Motion for approval by (~IJrv::1 JlkwMnnR\-1orie c:: and Second Crwv\; IlM)mMI ~nr\~~n. the vote on this resolution was as follows: AYE NAY Councilman Ted Cooper 'X )( X ~ X Mayor Mike Thomas Councilwoman Debra J. Rogers Councilwoman Gigi Bennington Councilwoman Harriet B. Rhodes PASSED AND DULY ADOPTED this 17th day of February, 2009. bNlQ,lllo~Q Bo~nie Wenz,el City Clerk ' . ,,'-' " .\ . CITY COUNCIL OF THE ~mDA By . ~ Mike Tomas Mayor ATTEST: ... :- " ~~~I'j;',kl Robin L. Matusick Paralegal /'- ':..,.. '.~:~(., l!~~ ~. .,;'./' For the use and reliance only by the City of Edgewater, Florida. Approved as to form and legality by: Carolyn S. Ansay, Esquire City Attorney Doran, W oIre, Ansay & Kundid Approved by the City Council of the City of Edgewater at a meeting held on this 17th day of February, 2009 under Agenda Item No. 7l;L. 5 2009-R-03 ARTICLE II. GROWTH MANAGEMENT COMMISSION CONSISTENCY CERTIFICATION RULES Sec. 90-31. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Adjacent jurisdiction means a local government whose territorial boundaries are physically contiguous to territorial boundaries of the land to be affeoted by a comprehensive plan or amendment thereto for ',vhioh an applicant jurisdiction that has applied to the commission for a certification or certificate. Notwithstanding any other provision of this article, which requires the commission to publish notice of receipt of an application pursuant to section 90-35( c), an adjacent jurisdiction, as defined in this subsection, shall have 40 days after receipt of an application by the commission to file any objections or comments on or request that a public hearing be held to consider an application. Applicant jurisdiction means a local government which has applied to the commission for a certification or certificate regarding a comprehensive plan or amendment thereto. Area and area of jurisdiction mean the total area qualifying under the provisions of F.S. ~ 163.3171, as amended from time to time, whether this be all of the lands lying within the limits of an incorporated municipality, lands in and adjacent to an incorporated municipality, unincorporated lands within the county, or areas comprising combinations of lands in incorporated municipalities and unincorporated areas of the county. Certification and certificate mean a f-ormalletter, resolution or other written document from-ef the commission determining consistency or inconsistency of a comprehensive plan, element, plan amendment or portion thereof with other applicable plans. Charter means the county Home Rule Charter, as amended. Commission means the Volusia Growth Management Commission, a governmental entity created by the Charter. Comprehensive plan means a plan that meets or is intended to meet the requirements of F.s. ~~ 163.3177 and 163.3178. Large scale comprehensive plan amendment means any plan amendment that reqUIres a transmittal and adoption hearing and does not qualify for adoption pursuant to F .S. ~ 163.3187(1)(c) as amended from time to time. Small scale comprehensive plan amendment means any plan amendment that only requires an adoption hearing and qualifies for adoption pursuant to F.S. ~ 163.3187(1)(c) as amended from time to time. I (Ord. No. 87-24, ~ 2, 7-23-87; Ord. No. 92-87, ~ 1, 10-8-92; Ord. No. 93-13, ~ 1,5-20-93; Ord. No. 2007-05, ~ 1,2-22-07) Cross references: Definitions and rules of construction generally, ~ 1-2. Sec. 90-32. Interpretation of article. In the interpretation and application of this article, all provisions shall be: ( 1 ) Considered as minimHm reqHirements; (2) Liberally oonstrued in favor of the oommission; and (l~) Deemed not to limit or repeal any other powers granted by other state statutes, the Charter, county ordinances or commission resolutions: and (2) Interpreted in a manner consistent with Section 202.3 of the V olusia County Charter and the Local Government Comprehensive Planning and Land Development Regulation Act (F.S. & 163.3161 et seq.). (Ord. No. 87-24, ~ 14, 7-23-87) Sec. 90-33. Findings, purpose and intent. In adopting this article, the county council makes and expresses the following findings, purpose and intent: (1) In accordance with section 1303 of the county Charter, the 1985-1986 county Charter review commission was formed to prepare necessary amendments to the Charter. (2) In consideration of the rapid growth of the county in recent years and the adoption of landmark comprehensive planning legislation in the state, the Charter review commission determined that growth management was a top priority among its objectives. (3) As a result of information, evidence and testimony received at numerous public meetings and hearings, the Charter review commission proposed the creation of the V olusia Growth Management Commission to determine the consistency of the municipalities' and the county's comprehensive plans and any amendments thereto with each other. (4) The citizens of the county voted at a referendum held on November 4, 1986, to adopt Charter amendments creating the commission and granting certain powers to the commiSSion. (5) The main purpose of the commission is to provide an effective means for coordinating the plans of municipalities and the county, in order to provide a forum for the several local governments in the county to cooperate with each other in coordinating the provision of public services to and improvements for the citizens of the county, and create incentives to foster intergovernmental cooperation and coordination. (6) The commission held an organizational meeting on February 25, 1987, and then, through its committee on growth management related issues, duly noticed and held further public hearings on May 18, 1987, and May 21, 1987, and held commission hearings on June 10, 1987, and June 24, 1987, to develop rules of procedure for and enforcement of the commission's consistency review within the time provided for under the Charter amendment. (7) On June 24, 1987, the commission adopted Resolution No. 87-5, which recommended that county council adopt this article, which contains the rules of procedure for consistency review and enforcement as required by the Charter amendment. (Ord. No. 87-24, S 1, 7-23-87) Sec. 90-34. Certificate of plan consistency required. A certificate of consistency is hereby established. No comprehensive plan, element of a comprehensive plan or amendment of a comprehensive plan adopted after November 4, 1986, shall be valid or effective unless and until such comprehensive plan, element of a comprehensive plan or amendment has been reviewed by the commission and has been certified consistent in accordance with this article. This certificate of consistency will be required in addition to any other necessary licenses, permits and/or approvals applicable to land development;< however. in the event that the commission does not timelv hold a hearing or reach a formal determination regarding consistency within the time period provided in this article. the application shall be deemed approved and no certificate of consistency shall be required. (Ord. No. 87-24, S 3, 7-23-87) Sec. 90-35. Application for certificate; procedure for issuance; public hearing requirements. (a) After November 4, 1986, all local governments who desire to adopt or amend a comprehensive plan or element or amendment thereof shall, in accordance with this article, shall submit an application on forms as the commission may prescribe, and shall submit such information as the commission may required by this article. The commission may require such local goyemment to submit any additional information reasonably necessary for proper evaluation of the application. I (b) .'\.n applicant jurisdiction shall, at a minimum, submit the following information and documents with any application filed with the commission: (I) Information required by rule or order of the eommission, which shall include, at a minimum, a detailed inquiry into: a. The extent to 'whioh any plan, element, or plan amendment submitted proposes ta ereate adjaoent, ineompatible land uses and the manner in whieh the adverse impaot €If these inoompatible Hses may be eliminated or mitigated; and b. The extent to whioh any plan, element, or plan amendm.ent proposes polioies and/or physioal improvements '.vhioh may adversely impaot the objeotive of promoting the ooordination of infrastruoture affeoting more than one area of jHrisdiotion. ~ill The applicant jurisdiction shall submit five (5) copies of an application and its required supporting documentation with the commission's administrative staff. An application shall, at a minimum, _contain the following information,;,---m addition to that required in subseotion (b)( 1) of this section: (1) The proposed comprehensive plan or plan amendment: (2) All documentation considered or to be considered by the applicant jurisdiction concerning the proposed comprehensive plan or plan amendment: and aQ} The applioation shall contain aA list of all adjacent jurisdictionsgovernments and units of looal government. b. For eaoh entity listed in subseotion (b )(2)a of this seotion, the applioation shall indicate the follo'Ning: 1. Existing ooordination meohanisms used in preparation of the plan, element, or plan amendment being submitted. 2. Any reoommendations oontained in the proposed plan, element, or plan amendment whioh affeot the plans f{)r laRd use or infrastruotHre oontained in the plans of adjaoent local governments within the oounty. 3. The faots supporting the recommendations oontained in subsection (b)(2)b.2 of this seotion and the identification of reoommended measures which may be used to mitigate or eliminate any ad'lerse impacts resulting from these reoommendations. 1. Identifioation of specifio problems and needs within the oomprehensive plans of said adjacent governments \vhioh would benefit from improved or additional intergovernmental ooordination, and reeommended solutions for resolving these potential problems and needs. (c) The commission shall process all applications and shall cause pHblio notice of receipt of all applications to be given as provided in this article. When the commission receives an application for approval of a comprehensive plan or amendment thereto, its administrative staff shall date-stamp the application and send a dated cover letter and a notice of the application to all adjacent jurisdictions, to all members of the commission, and to such other persons and in such other manner as may be prescribed by the commission. The administrative staff shall also send a copy of the application to the commission's professional staff", and, ',vi thin teR days of receipt, shall cause notice of receipt of the applicatioR to be published one time only in a newspaper of general circulation in the county. Such notice shall be in substantially the form provided below: .!I!.tt '10LUSL^. VOLUSIf. COMMISSION GROWTH COUNTY M.^.NAGEMENT Notice of j\pplication (1) The type of application (e.g., adoption of or amendment to a comprehensi'le plan); (2) .^. description and location of the subject matter or acth'ity covered by the action, and the commission's case number, and the name and address of any person at the applicant jurisdiction to whom comments should be directed; (3) Complete copies of the application and accompanying material are available for public inspection at the commission's offices at (commission's address); (4) The notice shall contain paragraphs which read substantially as f{)llows: a. f.ny substantially affected or aggrieved party shall ha'le a right pursuant to the V olusia Growth Management Commission CompreheRsive Plan Consistency Certification Rules to petition for a public hearing on the application. The petition must contain the information set forth below and must be filed (received) in the commission's office at the address set f{)rth above within 21 days of publication of this notice. A copy of the petition must also be mailed at the time of filing ',vith the commission to (the persons named above in item (2) at the address indicated). b. Failure to file a petition ',vithin 21 days constitutes a waiver of any right any person may have to a public hearing pursuant to the Volusia Grovf'th Management Commission Comprehensive Plan Consistency Certification Rules and to participate as a substantially affected or aggrieved party. Any subsequent intervention will only be as allowed pursuant to section 7 of the V olusia Grovith Management Commission Comprehensh'6 Plan ConsisteRcy Certification Rules. c. The petitioR shall contain the following iRformation: I. The name, address and telephone 8l:unber of each petitioner; the eammission's ease number and the location of the proposed activity; n. A statement of hovl and when eaeh petitioner received notioe of the application; Ill. A statement of ho',\' each petitioner's substantial interests are affected by the proposed application; IV. /\. statement of the material facts disputed by petitioner, ifany; Y. A statemeBt ofwhicR rules require denial of the application; and VI. .^~ statement of relief s01:lght by petitioner, stating precisely the aotion petitioner wants the commission to take with respect to the pending application. ll.!I!. (d) Fi'le copies of each application and supporting documents shall be filed with the commission's administrative staff. (eQ) All applications received by the commission shall be processed and all determinations of consistency shall be made as provided in this subsection.:. unless a public hearing is held on an application. If the commission holds a p1:lblic hearing on an application as allowed pursuant to this subsection, the commission shall determine consistency pursuant to the criteria provided in section 90 37. (1) Sufficiency Rreview by commission's professional staff. a. Within 10 days after receipt of an application. the commission's professional staff shall perform a sufficiency review of the application to determine whether the application is complete in accordance with requirements of subsection (b) and shall notify the applicant jurisdiction in writing of any apparent errors and omissions in the application and request correction thereof. Unless within 10 days after receipt of an application the commission's professional staff notifies the applicant jurisdiction in writing that the application is not complete. the application shall be deemed complete on the 10th day after receipt of an application. Within 30 days after receipt of an application, the oommission's professional staff shall examine the application; determine whether any adjaoent j1:lrisdiotion or any other person, inoluding a substantially affeoted or aggrieved party as defined in this article, has commented or req1:lested a p1:lblio hearing, notify the applicant jurisdictioFl of any apparent errors or omissions; (2) Requests by adjacent jurisdictions. Within 30 days after receipt of the application by the commission. any adjacent jurisdiction may: a. Request a public hearing on the application in writing. The written public hearing request shall include a specific explanation of the adiacent iurisdiction's position for why the application does not meet the consistency criteria of section 90-37 and supporting documentation for such position: or b. Request. in writing and submitted to the commission chairman. a 21-day extension of time to request a public hearing and comment on the application. The commission chairman shall grant one such 21-day extension requested by an adiacent iurisdiction as a matter of right. However. the commission chairman shall not grant any further extensions of time for any adiacent iurisdiction to request a public hearing and comment on any pending application. A request for an extension of time shall toll all time periods provided in subsection 90-95( e ). (3) Certification without public hearing request. If no request for a public hearing is timely made by an adiacent iurisdiction pursuant to subsection (d)(2). the application shall be deemed certified as consistent with the criteria set forth in section 90-37 and the commission chairman shall. within 7 days after the expiration of the period of time for adiacent iurisdictions to request a public hearing. issue a letter to the applicant iurisdiction stating that the application has been deemed consistent. (4) Commission's professional staff evaluation. If a request for a public hearing is timely made pursuant to subsection (d)(2) by one or more adiacent iurisdictions. the commission's professional staff shall thereafter evaluate the application for consistency with the criteria set forth in section 90-37 and make a recommendation to the commission on whether the application should or should not be issued a certificate of consistency. The commission's professional staffs evaluation and recommendation to the commission shall be limited to the issues raised by the challenging adiacent iurisdictions in their public hearing request pursuant to subsection (d)(2). The commission's professional staffs evaluation and recommendation concerning the application shall be completed and copies thereof sent to the applicant iurisdiction. adiacent iurisdictions and commission at least 15 days prior to the public hearing on the application. reql:lest any additional information pertinent to the application; and determine whether the applicant jl:lrisdiotion has addressed the conditions of approval of past commission resoll:ltions and whether the application meets the consistenoy test as set forth in this artiole . If during the commission's professional staffs evaluation of the application it needs additional information to review the application, a single. written request for additional information (RAn may be sent to the applicant iurisdiction any time between the 31 st and 40th day from the receipt of the application if a public hearing was timely requested by an adiacent iurisdiction. A timely issued RAI by the commission's professional staff shall toll the running of the time provided by this article for the commission to act on the application: An applieant jurisdiotion's failure to sl:lpply additional inf-ormation shall not be groullds f-or denial of eertifieation uFlless the eommission's professional staff timely reql:lests the additioBal information from the applioant jl:lrisdietion in writing within 30 days after the commission reeeives the application. and shall be subiect to the following: (i) To be valid and toll the running of time for the commission to act on the application. a request for additional information (RAn must be issued by the commission's professional staff in writing and delivered by hand delivery. U.S. Mail. or courier service to the applicant jurisdiction. A RAI shall be issued for information gathering purposes only. reasonably identify the information sought. related to the specific application to which the RAI is directed and shall be related only to the issues raised by the adjacent jurisdictions in their public hearing request pursuant to subsection (d)(2). (m Within 7 days of receiving additional information submitted by the applicant jurisdiction in response to a RAt the commission's professional staff shall review such information and may either deem the RAI satisfied or request in writing information needed to clarify such additional information or to answer new questions raised by. or related to. such information: provided that if the commission's professional staff does not issue a written request to the applicant jurisdiction within 7 days after receiving additional information submitted by the applicant jurisdiction. the RAI shall be deemed satisfied. (iii) In the event the RAI is not satisfied within thirty (30) days from the issuance of the RAt the tolling of time caused by the issuance of the RAI shall cease and the application shall proceed to public hearing. The application may receive a recommendation of denial from the commission's professional staff if the RAI is not timely satisfied and the unsatisfied RAI is pertinent to the commission's consistency determination. (iv) The applicant jurisdiction shall. upon request be granted administratively by the commission chairman a thirty (30) day extension of the thirty (30) day RAI response period. In addition. upon request of the applicant jurisdiction. the commission by vote of its commission members may grant the applicant jurisdiction an additional extension of the RAI response period for up to sixty (60) days upon good cause shown. Such extensions if granted shall continue to toll the running of the time provided by this article for the commission to act on the application. (v) If the applicant jurisdiction gives written notice to the commission's professional staff that no further information will be provided in response to the RAt the tolling of time caused by the issuance of the RAI shall cease upon receipt of said notice. (vi) Submittal of additional information bv the applicant jurisdiction or notice from the applicant that no further information will be provided shall be made in writing and delivered by hand delivery, U.S. Mail. or courier service to the commission's coordinator's official office street address. b. If the commission's professional staff determines that the applicant jurisdietion has not addressed the conditions of appro';al of outstanding commission resolHtions, the commission shall hold a pHblic hearing. c. If the commission's professional staff determines that an application may be ineonsistent under the test set forth in section 90 37, the commission shall hold a public hearing. d. [Reserved.] (2) Within 30 days after receipt of the application by the eommission, any adjacent jurisdietion may: a. Submit 'Nritten comments regarding the merits or the sufficiency to the eommission regarding the application; b. Request a public hearing; or c. Request, for good cause shown in wntmg and submitted to the commission chairman, one 21 da)' extension of time to comment on the application. d. The commission chairman shall grant one such 21 day extension requested by an adjaeent jurisdiction as a matter of right. However, the commission chairman shall not grant any further extensions of time f-or any adjacent jurisdiction to eomment on any pending application. 1'1 request for an extension of time shall toll all time periods provided in this subsection. (J~ Public hearing. When the application is complete and a public hearing is requested by the pursuant to subsection (eillill of this section ef--by an adjacent jurisdiction or a substantially affected or aggrieved party, the commission shall hold a public hearing on the application within 60 days after the public hearing is requested but no more than 90 days from the date of receipt of the application not including any tolled time. At any public hearing held by the commission to determine whether the adoption of a comprehensive plan or amendment thereto is consistent the commission shall comply with the criteria of section 90-37. The scope of the public hearing shall be limited to those issues raised by the adjacent jurisdictions in their written public hearing requests made pursuant to subsection (Ql(21 (4Q) Unless a public hearing is otherwise required pursuant to this article, nNo public hearing shall be held on any application received by the commission unless timely requested by the staff, by an adjacent jurisdiction or by a substantially affected or aggrieved party. If no public hearing is timely requested by any adjacent jurisdiction, it shall be presumed that all adjacent jurisdictions approved the adoption of or amendment to the comprehensive plan of the applicant jurisdiction and the application shall be deemed certified as consistent with the criteria under section 90-37. If at any time prior to a public hearing all adiacent iurisdictions that timely requested a public hearing withdrawal their request for a public hearing, no public hearing shall be held on the application and the application shall be deemed consistent with the criteria of Section 90-37. (~1) Nothing in this section shall be construed to prohibit the submission of relevant evidence to the commission at any time up to and including a public hearing ealled-held by the commission pursuant to this article. To be admissible, evidence submitted shall be relevant to the issues raised by an adiacent iurisdiction in a public hearing request made pursuant to subsection (d)(2). (8) If a public hearing is held, during the public hearing the commission may permit members of the public to speak or submit written comments related to the issues raised by an adiacent iurisdiction in a written public hearing request made pursuant to subsection (d)(2): provided however, such participation shall not give party status to members of the public nor give the right to contest the issuance, denial or revocation of a certificate of consistency. (f) Nothing contained in this article shall preclude the concurrent processing of applications for certification and the state's related review pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act (F.S. ~ 163.3161 et seq.), as amended from time to time. For large scale comprehensive plan amendments the application for certification by the commission shall be submitted to the commission simultaneously with, or prior to, transmittal of a proposed plan amendment to the Florida Department of Community Affairs (DCA). For small scale comprehensive plan amendments the application shall be submitted by the local goyernmentapplicant iurisdiction concurrent with the forwarding of the recommendations of the local planning agency to the local governing body pursuant to F.S. ~ 163.3174(4)(a) as amended from time to time. The commission shall have 30 days from receipt of any such application to make comments to the applicast local government and the DC.A~. The commission certification shall be a prerequisite to any final public hearing on a comprehensive plan amendment by the applicant iurisdiction. local government. The applicant local government's response shall be to both the commission and DC:\. and shall occur simultaneous ","ith or prior to the applicant local government's response to the objections, recommendations and eomments report by the DCf~ for the comprehensive plan amendment, if applicable. (g) Every application shall be approved, conditionally approyed, or denied within 90 days after the date of receipt by the commission, not including any time that may have been tolled or extended pursuant to the RAI provisions of subsection (d)( 4) and the \inless one 21-day extension is requested and granted as provided in this sectionprovisions of (d)(2) of this section. Any application which is not approved, conditionally approved or denied within such time period set forth in this section, or within +five (5} days after conclusion of a public hearing held on the application, whichever is later, shall be deemed approved and shall not require a certificate of consistency. The commission does not have the authority to impose conditions of approval on any application. For e'/ef)' conditional approval, the applicant local government shall comply with the requirements set forth in the conditional approval including, b\it not limited to, incorporating into the proposed comprehensive plan amendment referenced in the application those ohanges recommended by the commission. Failure to incorporate the commission's recommended changes shall result in automatic revocation of the oertifioate thereby rendering both the application and the proposed oomprehensive plan amendment of the applicant local government invalid and ineffective. For those conditional approvals granted prior to the effective date of this ordinance, revocation where provided shall occur in accordance with the terms of the resol\ition of certification. Continuances of applications and hearings may be granted by the commission upon a waiver by the applicant jurisdiction of the 90-day period referred to in this subsection. (h) Within 30 days after final adoption pursuant to state law of any plan, element, or plan amendment previously certified by the commission, the local government adopting said plan, element, or plan amendment shall transmit a true and correct copy of said plan, element, or plan amendment to the commission. (i) The time periods set forth in this article for the commISSIon to take action on an application are iurisdictional in nature. (Ord. No. 87-24, ~ 4, 7-23-87; Ord. No. 89-39, ~ 1,9-7-89; Ord. No. 91-39, ~ 1, 11-21-91; Ord. No. 92-87, ~ 2, 10-8-92; Ord. No. 93-13, ~ 2, 5-20-93; Ord. No. 98-17, ~ I, 9-3-98; Ord. No. 99- 16, ~~ 1--3,5-13-99; Ord. No. 2007-05, ~ 11,2-22-07) See, 90-36. Consultation with commission regarding application for certificate. The applicant or his representative may consult with the staff of the commission concerning the application for certificate under this article. However, any representation by the staff of the commission shall not relieve any person of any requirement of applicable special acts, general laws, articles, the Charter, this article or any other commission rules, regulations or standards, or constitute approval, express or implied. (Ord. No. 87-24, ~ 5, 7-23-87) Sec. 90-37. Criteria for issuance of certificate. (a) Consistency shall be determined and a certificate shall be issaed to the aflplicant, upon suea eonditions as the commission may direct, if the aflplioant affirmatively provides the commission '.'lith reasonable assurance based apon oompetent, substantial evidenee that the propesed plan, element, or plan amendment is consistent with the eomprehensive plans of (a) all other local governments whioh are adjacent to the land to be affeoted by the applioant's proposed plan, element, or plan amendment, and (b) all other substantially affected and aggrieved looal governments '.'lhose substantial interests are or will be aff-eoted by issHance of the oertificate. There is a rebuttable presumption that the applicant iurisdiction's proposed comprehensive plan. element or plan amendment is consistent with the criteria for issuance of a certificate of consistency. The burden of proofis on the party challenging the applicant iurisdiction's application to show by clear and convincing evidence that the application is not consistent with the comprehensive plans of adiacent iurisdictions that are affected by the applicant's proposed comprehensive plan. element. or plan amendment. (b) For the purpose of subsection (a) of this section, a plan, element, or plan amendment shall be consistent if it is compatible with and in farthemnce of sHch affected adjacent aHd substantiallyiurisdictions' aff-ected comprehensive plans when all such plans are construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and polices in the plans. For purposes of this section, the phrase "compatible with" means that the plan, element, or plan amendment is not in conflict with such adjacent and substantially affected adiacent iurisdictions' comprehensive plans and does not. The phrase "in furtheraRce or' means to take aotion in the direction of realizing the goals or policies of suoh adjacent and sabstantially affected eomprehensive plans. IR addition to such requirements, consistency shall not be deemed to exist if the commission affirmatively determines that the plan, element, or plan amendment adversely affects intergovernmental cooperation and coordination. (c) In determining whether a plan, element, or plan amendment adversely affects intergo'lernmental eoopemtion and eeordinationis compatible with affected adiacent iurisdictions' comprehensive plans, the commission may_, in its sole discretion, shall consider one or more of the following factors to the extent relevant to an obiection raised by an adiacent iurisdiction: (1) The extent to which the plan, element, or plan amendment provides for areawide or central utility service solutions; (2) The extent to which the plan, element, or plan amendment provides for areawide or regional transportation solutions; (3) The extent to which the plan, element, or plan amendment causes or may reasonably be anticipated to cause significant adverse impacts on infrastructure beyond the boundaries of one jurisdiction; (4) The extent to which the plan, element, or plan amendment causes or may reasonably be anticipated to cause significant adverse impacts on natural resources which extend beyond the boundaries of one jurisdiction; (5) The extent to which the plan, element, or plan amendment provides for the coordination of the timing and location of capital improvements in a manner to reduce duplication and competition; and (6) The existence of an agreement among all substantially affected adiacent iurisdictions local governments, substantially affected parties (if any) and the applicant iurisdiction which provides for all said governments' consent to the application. If the commission determines that such an agreement exists between all affected adiacent iurisdictions and the applicant iurisdiction for any given application, then it shall be rebuttablyirrefutablv presumed that said application~ consistent with criteria of this section and the commission shall issue a certificate of consistencv on the application without holding a public hearing does not adversely affeet intergovernmental cooperation and eoordination. (d) For purposes of determining consistency uHder this section, the plan, element, or plan amendment and the comprehensive plans against which it is oompared and analyzed shall be construed as a whole and no specific goal and policy shall be oonstrued or applied in isolation from the other goals and polices in the plans. (eQ) The commission may deny certification where any applicant has failed to establish, by a preponderance of the evidence, its entitlement under this article to the certificate. The commission and its professional staff shall not evaluate or make consistencv determinations on whether a proposed comprehensive plan amendment is consistent with the comprehensive plan of the applicant iurisdiction. The commission and its professional staff does not have the authority to and shall not evaluate or make determinations on proposed rezonings and other proposed development permits as defined in Section 163.3164(7). Florida Statutes. Any conditions of previouslv issued certificates of consistency issued by the commission requiring commission review of proposed rezonings or other proposed development permits are hereby rendered null and void without effect on the validity of such certificates. (0 f..ny small scale eomprehensive plan amendmeflt '""hich meets the review by oommission requirements of section 90 35(e)(I) shall be deemed consistent by the commission and a certification issued within 10 days of receipt of the applicatiofl by the commission without the need to hold a public hearing if no written objections are timely issued or recei'.'ed by the commission. If a 21 day extension is requested pursuant to section 90 35(e)(2)c, thefl the small seale oomprehensive plan amendment shall be deemed consistent by the commission if it meets the review by commission requirements of section 90 35(e)(l)(a), and a certificate issHed within 60 days of receipt oftRe application by the commission without need to hold pHblic hearing if no ..",titten objeotions are timely issued or recei':ed by the commission. (g) I (h~ I (if) (tg) Failure to file a v:ritteB. objection to any such plan amendment shall be deemed a wai':er of any right to intervene pursuant to sectioB. 90 38. If a '.vritteB. objection to any such plan amendment is issued or reeeived, then that plan amendment applioatioB. shall be processed and reviewed in the same manner and subjeot to the same requirements as set f{)rth in seotions 90 35,90 36 and 90 37. Notwithstanding anything to the contrary contained in this article, any modifications to the capital improvements element of a comprehensive plan done pursuant to F.S. ~ 163.3 1 77(3)(b ), which would otherwise be reviewable by the commission, and are not deemed to be amendments to the comprehensive plan pursuant to that statute, shall be exempt from further review by the commission. During the commission certification process and until a certification of consistency has been issued or deemed issued by operation of law, g~ach applicant has a continuing affirmative duty to submit the objections, recommendations and comments (ORC) report and any and all additional correspondence, notices, documentation, orders, proposed orders, agreements or other information except adversariallyadversarial administrative pleadings in formal F.S. ~ 120.57(1) proceedings (collectively referred to in this section as "additional information") prepared by, transmitted by, received from or agreed to by either the state department of community affairs or the applicant, related to any comprehensive plan, element, or amendment previously certified as consistent by the commission. The oommission shall have the right, power and authority to reopen and reconsider its decision to certify consistenoy and ohange or modify its conditions of oertification applicable to at'}y suoh plan, element, or amendment should the commission determine in its sole discretion that the additional information changes the facts and oircumstances related to its prior certification. Should the applicant fail to submit to the oommission a oopY of any and all additional information ....:ithin 30 days after receipt, transmittal, execution or creation (as applicable) by the applicant, the commission shall likewise have the right, power and authority to reopen and reconsider said certificate of completeness. The oommission may initiate any such reconsideration proceeding by sending ....:ritten notice to the applicant/certificate holder, shall schedule and advertise S1:loh reoonsideration proceeding as a public hearing no less than 60 days after the date of said notioe, and may consider any iss1:le and receive S1:lch evidence in said public hearing and its subsequent deoision that it deems relevant. The commission shall render a vlfitten decision by resolution within 30 days from the date of said public hearing. .^...ppeal frem said decision shall be in the manner provided in this article f{)r appeal of certifications of consistency. Notwithstanding any proVISIon of this section to the contrary, an application for a certificate of plan consistency shall not be reviewed at a public hearing except as provided in section 90-35( eQ). When no public hearing is timely requested or held, the commission chairman shall issue by letter a certificate of plan consistency as provided in section 90-35( eQ). However, if a public hearing is called by the commission or is held pursuant to the request of an adjacent jurisdiction or a substantially affected or aggrieved paRy, the commission shall determine consistency pursuant to the criteria contained in I (2) (3) (4) this section; afld the applieant jurisdiction shall be required to establish by competent, substantial e'lideflee that its application meets the criteria specified in this seetion. (Ord. No. 87-24, ~ 6, 7-23-87; Ord. No. 90-46, ~ I, 12-20-90; Ord. No. 91-39, ~ 2, 11-21-91; Ord. No. 92-87, ~ 3, 10-8-92; Ord. No. 93-13, ~ 3, 5-20-93; Ord. No. 2007-05, ~ III, 2-22-07) Sec. 90-38. Landowner Intervention. A landowner or contract purchaser of land subject to a comprehensive plan amendment that is the subject of an application Persons other than the original parties to a pending application under this article who are or may be substantially aff~cted and aggrieved by the outcome of the proceeding shall have the right may petition the commission f-or leave to intervene as a party in the proceeding. Petitions for leave to intervene must be filed with the commission at least five days before the date of the public hearing, and should, at a minimum, contain the following: (1) The name and address of the intervenor~,-aml (2) Proof of ownership of land or proof of contract purchaser statusan explanation of how his substantial interests may be substantially affected by the commission's determination; If the intervenor intends to object to certification of consistenc)', a statement of all disputed issues of material fact, including specific objections to the pending application; A demand for relief to which the intervenor deems himself entitled; and Other information which the intervenor contends is material and relevant. Furthermore, the petition shall include allegations sufficient to demonstrate that the intervenor is entitled to participate in the proceeding as a matter of constitutional or statutory right, or that the substantial interests of the intervenor are subject to determination or may be affected by the outcome of the proceeding. Nothing in this section shall be deemed to prohibit or prevent members of the public from being heard at the public hearing required by section 90 35. (Ord. No. 87-24, ~ 7, 7-23-87) Sec. 90-39. Revocation of certificate. Certificates of consistency shall be effective HHtH-unless revoked: provided however. that certificates of consistency cannot be revoked after 60 days has expired from the application jurisdiction's adoption of the comprehensive plan. element or comprehensive plan amendment that is subject of the application. Certificates shall not become a vested right in the certificate holder. If prior to 60 days after the applicant jurisdiction adopts the comprehensive plan or comprehensive plan amendment that is subject of the application. an adjacent jurisdiction notifies the commission that any of the items under subsections (I) or (2) below occurred. the commission shall hold a public meeting and give the applicant iurisdiction reasonable notice and an opportunity to be heard at the public meeting and at such public hearing the commission shall have the authority to revoke a previously issued certificate if the commission determines that one of the following occurred:After public notice and public hearing, the commission may revoke any certificate issued by it only if: (I) The commission finds that the certificate holder or its agent submitted false or inaccurate material information in its application or at the public hearing; or (2) The applicant failed to notify an adiacent jurisdiotion local government An adiacent iurisdiction failed to get notice of the application as required by this article. Revocation of a certifioate shall invalidate the plan, element, or plan amendment certified thereby. Revocation of a certificate shall invalidate the plan, element, or plan amendment certified thereby. (Ord. No. 87-24, S 8, 7-23-87) Sec. 90-40. Appeals. (a) Only the applicant jurisdiction, an adjacent jurisdiction and landowner or contract purchaser which has timely intervened pursuant to Section 90-38 shall have the right to contest the issuance, denial or revocation of a certificate of consistency. The applicant iurisdiction, an adiacent iurisdiction and A!!ny substantially affeoted and aggrieved local government or other substantially affected and landowner or contract purchaser aggrieved paFty-which has previously timely intervened pursuant to section 90-38 may contest the issuance, denial or revocation of a certificate of consistency by filing a petition for writ of certiorari along with a complete record of the proceeding(s) from which said certificate emanated so certified by the commission's records custodians, in the manner prescribed by the state appellate rules to the circuit court of the county, within 30 days after the date the commission's decision is filed with its secretary. The court shall not conduct a trial de novo. The proceedings before the commission, including the testimony of witnesses, and any exhibits, photographs, maps or other documents filed before them, shall be subject to review by the circuit court. The petition for writ of certiorari shall state how the commission erred and shall include all of the documents, papers, photographs, exhibits and transcripts constituting the record upon which the action appealed from was taken, or properly certified copies thereof in lieu of originals. The petition, along with the record, shall be filed in the circuit court within 30 days after the filing of the decision by the commission to which such petition is addressed. The court may extend the time for filing the record, including the transcript and exhibits, for good cause shown. The person filing the petition for certiorari shall be responsible for filing a true and correct transcript of the complete testimony of the witnesses. (b) The petition for writ of certiorari shall be furnished to the original applicant, the owner of record of the subject property, to each attorney at law appearing for any person at the hearing before the V olusia Growth Management Commission, and to the V olusia Growth . . Management Commission. The commission shall suspend the issuance of its permit until the court has ruled upon the petition. (c) The V olusia Growth Management Commission shall be a necessary and indispensable party to any appeal of its decisions. Any other person including but not limited to an adjacent local government may intervene, pursuant to Florida Rule of Civil Procedure 1.230, as a respondent in the certiorari proceeding authorized by this section. (Ord. No. 87-24, S 9, 7-23-87; Ord. No. 99-16, S 4, 5-13-99) Sec. 90-41. Enforcement. The commission may institute a civil action in a court of competent jurisdiction to seek injunctive relief to enforce compliance with this article or any certificate issued pursuant to this article. (Ord. No. 87-24, S 10, 7-23-87) Sec. 90-42. Waiting period for reapplication for certificate. No local government shall have the right to file an application for certification pursuant to section 90-35 if the same plan, element, or plan amendment for which certification is applied has been the subject of an application before the commission within a period of H six (6) months prior to the filing of the application. (Ord. No. 87-24, S 11, 7-23-87) Sec. 90-43. Article not to affect preexisting rights. Nothing in this article shall after or affect rights previously vested or plans, elements, or plan amendments previously, finally and completely adopted in accordance with applicable state law prior to November 4, 1986. (Ord. No. 87-24, S 12, 7-23-87) Sec. 90-44. Ratification of past agreements. Notwithstanding anything to the contrary contained in this article, the following agreements are hereby ratified and confirmed and the plans, elements, and plan amendments involved therein are certified consistent for purposes of this article: (1) Agreement between the City of Daytona Beach, Florida, and Gerald Berson dated March 1987. (2) Agreement between the City of Port Orange, Florida, DSC of Newark Enterprises, Inc., and the county dated January 8, 1987. (3) Agreement between the City of Port Orange, Florida, S.C.B. Development, Inc., and the county dated January 8, 1987. (4) Agreement between the City of Edgewater, Florida, Radnor/Edgewater, Inc., and the county dated January 12, 1987. (5) Agreement between the City of Port Orange, Sandalwood, Inc., and the county dated January 5, 1987. (6) Agreement between the City of Port Orange, Jennie M. Krol and the county dated January 5, 1987. (7) County council Ordinance No. 87-19, approving, among other things, amending the county comprehensive plan amendments related to Mosquito Lagoon, Hontoon Island and the North Peninsula. (Ord. No. 87-24, ~ 13, 7-23-87) Section 90-45 Appointment & Removal of Commission Members. There shall be one voting member from each municipality within the county and five voting members from the unincorporated area of the county. The appointment of each voting representative shall be made bv the governing body of each respective iurisdiction. Voting members of the commission shall not be elected officials or anyone who by serving on the commission would violate the dual- office holding provision of the Florida Constitution. The V olusia County School Board. the St. Johns River Water Management District. and the Volusia County Business Development Corporation shall each designate one nonvoting member to serve on the commission. The term of office of the commission members shall be four (4) years. The governing body for each governmental entity that appoints a member(s) to the commission shall at any time have the right to remove its appointed member( s) to the commission with or without cause and to appoint a successor member( s ). Secs. 90-45--90-70. Reserved.