To: Mayor Jerry Demings; Commissioner Betsy Vanderley, District 1; Commissioner
Christine Moore, District 2; Commissioner Mayra Uribe, District 3; Commissioner
Maribel Gomez Cordero, District 4; Commissioner Victoria Siplin, District 6
From: Commissioner Emily Bonilla
Date: March 6, 2020
Subject: Commissioner’s Report – Discussion Agenda Item B.2 re: Proposed Revisions to
Administrative Regulation 11.07.01, titled “Environmentally Sensitive Lands
Acquisition.”
The purpose of the memorandum is to discuss the concerns I have with the Discussion Agenda Item A.2, proposed revisions to Administrative Regulation No. 11.07.01, titled “Environmentally Sensitive Lands Acquisition.” I do not have concerns regarding the second portion of the Discussion Agenda Item A.2, the new Administrative Regulation No.11.07.02, titled “Policy Regarding Use of TM/Econ Mitigation Bank Phase IV Credits.” For ease of review, I have attached the proposed revisions to Administrative Regulation No. 11.07.01. For reasons more fully explained in this memorandum, my concern with the proposed revisions to Administrative Regulation No. 11.07.01 is that it does not provide clear direction to staff on the identification, evaluation, and acquisition of Environmentally Sensitive Lands (ESL).
Initially, the proposed revisions to Administrative Regulation No. 11.07.01 were on the February 25, 2020 BCC Consent Agenda. On February 20, 2020, I requested to pull the item for discussion. In my memorandum, I explained that I would like a conversation with staff and an explanation for the proposed revisions. My intention with this request was to ensure the Board of County Commissioners (the “Board”) are as informed as possible on the subject and any potential ramifications it has on environmentally sensitive lands acquisition, private funding, and/or costs to taxpayers. In the spirit of creating evidence-based policies, I also requested the evidence, data, and research to justify the proposed revisions to Administrative Regulation 11.07.01 and the creation of the proposed new Administrative Regulation 11.07.02. On February 25, 2020, rather than proceed with a board discussion on the proposed Administrative Regulations, OCEPD staff preferred to pull the item from the consent agenda to allow us more time to discuss.
On February 24, 2020, my staff and I met with David Jones, Liz Johnson, and Tim Hull with Orange County Environmental Protection Department (OCEPD) and Georgiana Holmes with the County Attorney’s office. Based on that meeting, I was comfortable going forward with the proposed new Administration Regulation 11.07.02 “Policy Regarding Use of TM/Econ Mitigation Bank Phase IV Credits.” OCEPD Staff provided detailed information on how the current mitigation banks were used, and how the regulation would allow OCEPD a competitive edge when negotiating mitigation bank credits, which will allow for an increase in revenue to the Conservation Fund.
In regards to the discussion on the revisions to Administrative Regulation No. 11.07.01 “Environmentally Sensitive Lands Acquisition,” many of my questions have yet to be answered. For example, the revisions do not provide clear direction to staff on the identification, evaluation, and acquisition of Environmentally Sensitive Lands (ESL). When I asked EPD staff to explain how they identify ESL, staff advised that they used a Parcel Evaluation Matrix (“Matrix”). When I asked for a copy of the Matrix, I was told they are drafting it now. To date, I have not been provided a copy of the Matrix despite my additional requests for it. Therefore, I have no evidence as to how OCEPD currently identifies ESL beyond the relaxed criteria in the proposed regulation.
Another concern is that the application process will be removed entirely from the proposed regulation. OCEPD staff advised that the current practice is that Beth Jackson will receive a phone call or an email and that the process of evaluation starts from there. Although I value Ms. Jackson’s expertise, this means that staff has no direction when it comes to an application for donation or acquisition of ESL. What if Ms. Jackson were to leave the Orange County government tomorrow, who would take over the process, and what direction would they have? It is not a good practice to altogether leave out an application process for when a person or entity is proposing to sell or donate ESL to the County.
I have a further concern with section B.1 of the proposed regulation regarding criteria evaluation and selection of ESL. This section is made wholly ineffective by the addition of “general fit the following criteria.” This wording allows staff too much discretion on identifying ESL and lacks the clarity necessary for the Board to determine when the criteria are met. The County Attorney, Ms. Holmes, admitted that the “generally fit” language was to allow OCEPD staff more flexibility on its determination of ESL. Again, although we value our OCEPD’s expertise, the current administrative regulation removes all transparency and accountability when it comes to identifying and acquiring ESL. This lack of direction hinders the Board from having the necessary information we need to make our determination when OCEPD requests approval for any such acquisition.
Although the real estate department conducts due diligence, it is only by way of a contingency clause in the agreement; therefore, it only comes into effect after the Board approves of the agreement. This process does not provide the level of scrutiny required for the acquisition of ESL. The analysis needs to be transparent, and clear criteria should be submitted to this Board for approval prior to the execution of an agreement to acquire ESL.
It is also worth noting that if Administrative Regulation No.11.07.02, “Policy Regarding Use of TM/Econ Mitigation Bank Phase IV Credits, is approved, it will increase Orange County’s ability to utilize mitigation banks for public and private use. Therefore, how we acquire and manage land will be increasingly important because it can potentially be made part of the mitigation program and thus add to conservation funds. An increase in conservation funds is good news, but only if the identification and acquisition of ESL are appropriately regulated to best utilize these additional funds.
Also, with the proposed CFX Expressway, Orange County may potentially acquire 594 acres of ESL. Therefore, it’s essential that the process in which we acquire ESL is transparent and that the quality and management of these lands are thoroughly evaluated. Clear direction will ensure the proper use of any private or public funds, not to mention taxpayer dollars that might be used for the acquisition and management of ESL. Moreover, if the Mayor’s Transportation Initiative is placed on the ballot and passes, it stands to reason that additional ESL could be acquired in the future, which further necessitates clear direction both to the staff and the public at large.
Without clear direction, we stand to acquire land that is not of beneficial quality, which could result in additional costs to Orange County and the taxpayers to bring the property up to beneficial quality. For example, all ESL requires a level of management – some require more management than others. Without clear criteria to evaluate the quality of the ESL prior to purchase, we may end up acquiring land that passes the real estate department’s “after the fact” due diligence, but then requires exorbitant management costs, which could ultimately trickle down to our taxpayers.
Based on my above concerns, OCEPD staff and I discussed the possibility of implementing an ordinance, which would provide clear direction to both staff and the public on how to acquire and manage ESL. My office provided OCEPD with research on how surrounding counties handle the acquisition and management of ESL. We also offered an example of Collier County’s ordinance on the acquisition and management of ESL. I have attached both documents to this memorandum for your review. These documents show the level of scrutiny that should be applied when it comes to the acquisition of ESL. I am not proposing we follow the ordinance in its entirety, but it provides a useful framework for us to consider.
In summary, my concern is that the proposed revisions to Administrative Regulation No. 11.07.01 do not provide clear direction to staff on the identification, evaluation, and acquisition of Environmentally Sensitive Lands (ESL). I urge my colleagues to require transparency and accountability when acquiring ESL. Please review the attachments and consider directing staff to conduct more research and offer us a work session as to why they propose the current revision to Administrative Regulation No.11.07.01. The work session should further address whether an ordinance would be a better practice when it comes to the acquisition of ESL.
Attachments:
