§ 90-37. Criteria for issuance of certificate.

(a)

Consistency shall be determined and a certificate shall be issued to the applicant, upon such conditions as the commission may direct, if the applicant jurisdiction affirmatively provides the commission with reasonable assurance based upon competent, substantial evidence that the proposed plan, element, or plan amendment is consistent with the comprehensive plans of all other units of local governments.

(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 furtherance of such adjacent and substantially affected comprehensive plans when all such plans are construed as a whole. 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 comprehensive plans. The phrase "in furtherance of" means to take action in the direction of realizing the goals or policies of such adjacent and substantially affected comprehensive plans. In 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 intergovernmental cooperation and coordination, the commission may, in its sole discretion, consider one or more of the following factors:

(1)

The extent to which the plan, element, or plan amendment provides for area-wide or central utility service solutions;

(2)

The extent to which the plan, element, or plan amendment provides for area-wide 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 units of local government and the applicant jurisdiction which provides for all said governments' consent to the application. If the commission determines that such an agreement exists for any given application, then it shall be rebuttably presumed that said application does not adversely affect intergovernmental cooperation and coordination.

(d)

In determining whether a plan, element, or plan amendment adversely affects intergovernmental cooperation and coordination, the School Board of Volusia County shall consider if adequate public schools can be timely planned and constructed to serve the proposed increase in student population, as set forth in section 206 of the Charter.

(e)

For purposes of determining consistency under this section, the plan, element, or plan amendment and the comprehensive plans against which it is compared and analyzed shall be 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. The commission and its professional staff shall not evaluate or make consistency determinations on whether a proposed comprehensive plan amendment is internally consistent with the comprehensive plan of the applicant jurisdiction.

(f)

The commission may deny certification where a preponderance of the evidence as determined by the commission, establishes that the proposed plan, element, or plan amendment is not consistent with other comprehensive plans and adversely affects intergovernmental cooperation and coordination based on the criteria contained in subsection (c) above.

(g)

Notwithstanding the other provisions of this article, for any comprehensive plan amendment the failure to file a written objection to any such comprehensive plan amendment shall be deemed a waiver of any right to object.

(h)

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. § 163.3177(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.

(i)

Each 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 adversarial 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 of Florida Department of Economic Opportunity or the applicant, related to any comprehensive plan, element, or amendment previously certified as consistent by the commission. The commission shall have the right, power and authority to reopen and reconsider its decision to certify consistency and change or modify its conditions of certification applicable to any such plan, element, or amendment should the commission determine in its sole discretion that the additional information changes the facts and circumstances related to its prior certification until a final determination as to the validity of the plan, element of a plan, or plan amendment is made pursuant to the Community Planning Act (F.S. § 163.3161 et seq.), as amended from time to time. Should the applicant fail to submit to the commission a copy of any and all additional information within 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 consistency. The commission may initiate any such reconsideration proceeding by sending written notice to the applicant/certificate holder and all units of local government. If an objection is filed by a unit of local government within 14 days, the commission shall schedule and advertise such reconsideration proceeding as a public hearing no less than 60 days after the date of said notice, and may consider any issue and receive such evidence in said public hearing and its subsequent decision that it deems relevant. The commission shall render a written decision by resolution within 30 days from the date of said public hearing. Appeal from said decision shall be in the manner provided in this article for appeal of certifications of consistency.

(j)

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 subsection 90-35(d). When no public hearing is held, the chairman of the commission, based upon the recommendation of the professional staff of the commission, shall issue by letter a certificate of plan consistency as provided in subsection 90-35(d). This issuance of the certificate of plan consistency by letter is the final administrative action by the commission on the application. However, if a public hearing is held pursuant to the request of a unit of local government, the commission shall determine consistency pursuant to the criteria contained in this section based upon a preponderance of competent, substantial evidence presented at the hearing to determine whether the application meets the criteria specified in this section.

(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; Ord. No. 2012-16, § I, 10-4-12; Ord. No. 2016-10, § I, 5-5-16)