16-001345GM Greg Daniels And Michael Bellows vs. Monroe County Status: Closed Recommended Order on Tuesday, August 9, 2016.

Summary: Petitioners failed to prove beyond fair debate that the plan amendment was either internally inconsistent with the comprehensive plan, or inconsistent with the principles for guiding development.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREG DANIELS and MICHAEL

BELLOWS ,

Petitioners,

and

DEPARTMENT OF THE NAVY,

Intervenor,

vs. Case Nos. 16 - 1345GM

16 - 1349GM

MONROE COUNTY,

Respondent,

and

ROCKLAND OPERATIONS, LLC, AND

ROCKLAND COMMERCIAL CENT ER,

INC.,

Intervenors.

_______________________________/

RECOMMENDED ORDER

A duly - noticed hearing was he ld in this matter on June 8

and 9, 2016, in Key West, Florida, before Suzanne Van Wyk, an

A dministrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ralf G. Brookes, Esquire

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904

For Intervenor Department of the Navy:

LCDR Elizabeth Rosso, Esquire

United States Navy

Region Environmental Counsel

Navy Region Southeast

Langley Street, Building 919

Jacksonville, Florida 32212

LT Sara Wooten, Esquire

United States Navy

Region Legal Service Off ice Southeast

Naval Air Station Key West

NASK W Post Office Box 9001

Key West, Florida 33040

For Respondent Monroe County:

Steven T. Williams, Esquire

Monroe County AttorneyÓs Office

Suite 408

1111 12th Street

Key West, Florida 33040

Fo r Intervenors Rockland Operations, LLC,

and Rockland Commercial Center, Inc .:

Barton William Smith, Esquire

Ashley N. Sybesma, Esquire

Smith Oropeza Hawks, P . L .

138 - 142 Simonton Street

Key West, Florida 33040

STATEMENT OF THE ISSUE

Whether A mendment 15 - 1ACSC to the Monroe County

Comprehensive Plan, adopted by Ordinances 003 - 2016 and 004 - 2016

on February 10, 2016, is Ðin compliance,Ñ as that term is

defined in section 163.3184(1)(b), Florida Statutes (2015). 1/

PRELIMINARY STATEMENT

On Febr uary 10, 2016, Monroe County adopted Comprehensive

Plan Amendment 15 - 1ACSC (the Plan Amendment), by O rdinances 003 -

2016 and 004 - 2016, both amending the Future Land Use Map (FLUM)

and creating Future Land Use Element (FLUE) Policy 107.1.6 of

the Monroe Coun ty Comprehensive Plan (the Plan). The Plan

Amendment changes the FLUM designation on five parcels -- four on

Rockland Key , from Industrial to Commercial, and one on Big

Coppit t Key , from Mixed Use/Commercial Fishing and Industrial to

Mixed Use Commercial. The Plan Amendment further creates a sub -

area policy imposing restrictions and limitations on development

of the Big Coppitt Key parcel.

On March 9, 2016, Petitioner Michael Bellows filed a

Petition challenging the Plan Amendment with the Division of

Admi nistrati ve Hearings (DOAH). Petitioner Greg DanielsÓ

Petition followed on March 10, 2016. 2/ The Petitions were

assigned DOAH case no s . 16 - 1349GM and 16 - 1345GM, respectively,

and were consolidated on March 21, 2016. 3/ Rockland Operations,

LLC, and Rockla nd Commercial Center, Inc. (Rockland), were

granted Intervenor status on April 11, 2016.

The consolidated cases were transferred to the undersigned

on April 18, 2016, and the final hearing was scheduled for

June 8 through 10, 2016, in Key West, Florida. The Department

of the Navy (the Navy) was authorized to intervene on May 18,

2016, in opposition to the Plan Amendment.

On May 20, 2016, Petitioners filed an opposed Amended

Petition which constitutes the complete compliance allegations

at issue in this proceeding. Petitioners allege the Plan

Amendment is internally inconsistent with specified policies of

the Plan, in v iolation of section 163.3177(2) ; and inconsistent

with section 380.052(7), Florida Statutes , the Principles for

Guiding Development in t he Keys Area of Critical State Concern

(Principles).

The parties jointly submitted a Pre - hearing Stipulation on

June 7, 2016, and the final hearing commenced as scheduled.

At the final hearing, Petitioners testified on their own

behalf and offered the te stimony of Daryl Max Forgey, who was

accepted as an expert in urban planning, and Rebecca Jetton,

administrator of the State Area of Critical State Concern

program. PetitionersÓ Exhibits 1 and 4 through 6 were admitted

in evidence.

The Navy offered the te stimony of Captain Steven P.

McAlearney, commanding o fficer of Naval Air Station Key West

(the Station), and Ashley Monnier, the StationÓs community

planning and liaison o fficer.

Respondent, Monroe County (the County), offered no

testimony and introduced n o exhibits.

Rockland offered the testimony of Frank Toppino, preside nt

of Rockland Operations, Inc., and Mayte Santamaria, the CountyÓs

d irector of Planning and Environmental Resources, who was

accepted as an expert in urban planning. RocklandÓs Exhibits

10, 20, 22 through 24, and 26 through 35 were admitted in

evidence.

The partiesÓ Joint Exhibits 25, 36, 40, and 40A were

admitted in evidence. The undersigned took official recognition

of two versions of the Plan, one dated May 2012 and one dated

July 20 12.

The two - volume Transcript o f the hearing was filed on

July 1, 2016. The parties timely filed Proposed Recommended

Orders on July 11, 2016, which have been considered by the

undersigned in preparation of this Recommended Order.

Ruling on Post - Hearin g Issues

RocklandÓs Amended Unopposed Motion to Increase Page Limit

of its post - hearing submittal is hereby granted. The NavyÓs

Corrected Proposed Recommended Order filed on July 12, 2016, to

which no party has filed an objection, is hereby accepted as

ti mely filed.

FINDING S OF FACT

I. The Parties

1. The County is a political subdivision o f the State of

Florida with the duty and responsibility to adopt and maintain a

comprehensive growth management plan pursuant to section

163.3167, Florida Statutes.

2. Petitioners reside in , and own property within , the

County. Petitioners submitted oral or written comments

concerning the Plan Amendment to the County during the period of

time beginning with the transmittal hearing for the Plan

Amendment and ending with the adoption of the Plan Amendment.

3. Rockland owns the property subject to the Plan Amendment

and is the applicant for the Plan Amendment. 4/

4. The Navy owns the Station in the County and submitted

oral or written comments concerning the Plan Ame ndment to the

County during the period of time beginning with the transmittal

hearing for the Plan Amendment and ending with the adoption of

the Plan Amendment.

II. The Subject Property

5. The Plan Amendment affects five different parcels of

property in the Lower Keys. The parcels are owned by Rockland

and are all either current or former mining sites with developed

ancillary uses. Most of the property is vacant scarified land

and the remainder supports warehousing and distribution

facilities and relat ed uses.

6. Four of the parcels are located on Rockland Key (the

Rockland parcels) : two along U.S. Highway 1 and two on the north

side of the Key along the Gulf of Mexico. Togethe r, the four

parcels total 29.59 acres. The existing FLUM designation of the

parcels is Industrial, the primary purpose of which is to

Ðprovide for the development of industrial, manufacturing, and

warehouse and distribution uses.Ñ FLUE Policy 101.4.7. (2015). 5/

The non - residential development potential of the property is

be tween 322,235 and 773,364 square feet.

7. The Industrial category also allows residential

development at a density of one dwelling unit per acre (1du/acre)

and a maximum of 2du/buildable acre. 6/ Under the existing FLUM

category, the Rockland parcels coul d be developed for a maximum

of 47.3 residential units. 7/

8. The parcel on Big Coppitt Key (the Big Coppitt parcel)

is a narrow L - shaped 14.8 - acre property bordering a former mining

pit. The parcel runs north along the western boundary of

PetitionersÓ re sidential subdivision, then west along the Gulf of

Mexico. PetitionersÓ homes are located directly adjacent to the

Big Coppitt parcel.

9. The majority of the parcel (12.33 acres) is designated

Industrial and the remainder (2.5 acres) as Mixed Use/Comme rcial

Fishing (MCF). The non - residential development potential of the

Big Coppitt parcel is between 161,498 and 365,816 square feet.

10. Under the existing FLUM categories, the Big Coppitt

parcel could be developed for a maximum of 43.7 dwelling units.

11. Together, the subject property could be developed for a

maximum of 91 dwelling units or 1.1 million square feet of non -

residential uses , or some proportional mix thereof .

III. The Plan Amendment

12. The Plan Amendment changes the FLUM designation of the

Rockland parcels from Industrial to Commercial. The Commercial

FLUM category does not allow residential development, thus

limiting future development of the property to between 193,341

and 644,470 square feet of non - residential uses.

13. The Plan Am endment changes the FLUM designation o n the

Big Coppitt p arcel to Mixed Use/Commercial (M/C), which allows

residential development at a maximum density of 2 - 8du/acre.

Under the M/C designation, the Big Coppitt parcel could be

developed for a maximum of 21 3.6 dwelling units.

14. Under the M/C designation, the Big Coppitt parcel has a

non - residential development potential of between 64,599

and 290,697 square feet. However, the Plan Amendment also

creates FLUE Policy 107.1.6, a sub - area policy applicable to the

Big Coppitt parcel. The policy restricts development to deed -

restricted affordable housing units (minimum mix of 10 percent

median - income and at least 20 percent combination of low - and

very low - income categories) and employee housing. The policy

pr ohibits all non - residential development of the property,

including dredging, and prohibits developme nt of market - rate and

transient - dwelling units.

15. As adopted, the Plan Amendment authorizes development

of up to 213 affordable housing units, no mar ket rate units, no

transient units, approximately 644,000 square feet of non -

residential uses, and no dredging of the existing mining pit on

the Big Coppitt parcel. Compared to the existing FLUM

designations of the subject property, that is a potential

in crease of 114 units and a de crease of approximately

456,000 square feet of non - residential development.

IV. Naval Air Station Key West

16. Rockland Key is located directly across U.S. Highway 1

from the Station . The Big Coppitt parcel is in close proxim ity

to the Station.

17. The StationÓs Boca Chica airfield has been in operation

since 1943. The primary mission at Boca Chica is to train pilots

for air - to - air combat and to meet aircraft carrier

qualifications.

18. Fighter pilots from all over the country are trained

for air - to - air combat primarily at the Station. The Station is

uniquely situated to accomplish its training mission because

there is little commercial air traffic and a large unencumbered

airspace in close proximity to the airfield. P ilots who take off

from Boca Chica quickly arrive in vast airspaces west and south

of the Station for air - to - air combat training. This allows for

very efficient use of fuel for training.

19. Pilots train for aircraft carrier qualifications

through field carrier landing practice at Boca Chica. Field

carrier landing practice requires flying the same touch - and - go

pattern at the field that the pilot would fly at an aircraft

carrier. Each pilot in a squadron must fly the pattern

accurately to a certain Ðread iness levelÑ before the squadron can

be certified to deploy. The readiness level is based on the

number of sorties completed. One sortie includes at least one

takeoff and one landing.

20. Boca Chica typically operates Monday through Saturday

from 8:00 a .m. to 10:00 p.m. However, the airfield operates

outside of those hours, and on Sundays, when training missions

dictate. The airfield averages 36,000 sorties per year.

21. The Station is extremely valuable to the Department of

Defense due to the size of the airspace, weather, lack of

commercial traffic interference, and capacity for training

missions.

22. As the commanding o fficer of the Station, one of

Captain Steven P. McAlearneyÓs primary duties is to protect the

military value of the Station by pro tecting the airspace and

existing operation capacity. As such, Captain McAlearney is

concerned with encroachment by development incompatible with

Station operations.

V. Navy AICUZ

23. The Navy has established a Military Installation Area

of Impact (MI AI) surrounding the Station. In its most recent

Environmental Impact Statement (EIS), the Navy has designated Air

Installation Compatible Use Zones, or AICUZ, within the MIAI.

24. The AICUZ are mapped as noise contours extending

outward from the Statio n. Each contour indicates a range of day -

night ave rage noise levels (DNL) which are expected to impact

properties within the specific contour.

25. The AICUZ map is accompanied by a Land Use

Compatibility Table (the table) containing recommendations for

compatibility of various land uses within the specific noise

contours.

26. According to the table, residential land uses are

Ðgenerally incompatibleÑ in both the 65 - 69 and 70 - 74 DNL zones,

also referred to as Ðnoise zones.Ñ The Navy discourages

reside ntial use in DNL 65 - 69 zones, and strongly discourage s

residential use in DNL 70 - 74 zones. The table deems residential

use in the 75 - 79 DNL zone as Ðnot compatibleÑ and recommends

local government prohibit residential use in those zones, also

referred to as Ðincompatibility zones.Ñ

VI. FLUE Policy 108.2.5

27. On May 22, 2012, the County adopted FLUE Policy

108.2.5, which took effect on July 25, 2012.

28. The Policy, which is lengthy and is not set forth in

full herein, generally prohibits applications to change FLUM

designations within the MIAI after the PolicyÓs effective date.

However, the Policy sets forth a procedure by which FLUM

amendment applications Ðreceived after the effective date of this

[p]olicy , Ñ which increase density or intensity withi n the MIAI ,

may be approved.

29. The procedure requires the County to transmit the

application to the Navy for a determination of whether the

property subject to the application is within a noise zone or an

incompatibility zone, and whether the proposed density or

intensity is incompatible with Station operations.

30. If the Navy determines an application is within an

incompatibility zone, the Policy requires the County to determine

whether appropriate data and analysis supports that

determination, and, if so, maintain the existing designation.

Additionally, the Policy states that ÐMonroe County shall

encourage the Navy to acquire these lands . . . for the

protection of the public health, safety, and welfare of the

citizens of the Florida Keys.Ñ

31. If the Navy determines an application is within a noise

zone, the Policy requires the applicant to submit a supplemental

noise study, based on Ðprofessionally acceptable methodology,Ñ to

establish whether the property is within a 65 DNL or higher zone.

Th e Navy has nine months from receipt of the supplemental noise

study to provide comments to the County concerning whether the

noise study is based on professionally accepted methodology.

After receipt of the NavyÓs comments, the County may allow the

applic ation to proceed through the public hearing process, but

must also adopt a resolution determining whether the property

subject to the application is subject to the density and

intensity restrictions within the MIAI.

VII. Affordable Housing

32. The partie s stipulated that the County has a

demonstrated community need for affordable housing. A 2014

study projected a deficit of 6,5 00 affordable units in the

City of Key West alone. In 2013, 51 percent of all County

households were Ðcost - burdened,Ñ meaning th ey paid more than

30 percent of their income for housing. That figure compares to

43 percent of cost - burdened households statewide.

33. In the County, mor e than half of renters are cost -

burdened and about 45 percent of home owners are cost - burdened.

34. The lack of affordable housing in the County is

exacerbated by four factors: high land values ; geographic and

environme ntal limitations on development; artificially -

controlled growth of housing supply 8/ ; and a tourist - based

economy which drives lower pay ing service - sector jobs.

35. The lack of affordable housing impacts not only the

tourism industry, but also public - sector agencies, including the

school system, emergency management, and even the CountyÓs

Planning and Environmental Resources Department. Lack of

affordable housing makes it harder to recruit and retain school

teachers, police, and firefighters, among other public - sector

employees. High turnover rates in these areas present budget

and personnel challenges for the County.

36. The County has 460 existing affordable housing units

for the very - low, low - , and me dian - income households, and

354 units for moderate - income households (a combination of

rental and owner - occupied units). The greatest percentage of

existing affordable housing units is d eed - restricted for the

moderate - income range.

37. The yearly income limit for a three - person household

(a couple with a child) in the very - low income category is

$52,400; the low - income category is $83,800; and the median -

income limit is $104,800.

38. T he moderate - income level maximum is $125,760 for

rental, and $167,680 for owner - occupied.

39. The County has approximately 700 affordable housing

units to be allocated through the year 2023.

VIII. The Plan Amendment Application

40. On May 18, 2012, Ro ckland applied for a FLUM amendment

which included the Rockland parcels, but did not include the Big

Coppitt parcel. The application affected 141 acres

(approximately 77 upland acres). As proposed, the application

would have allowed development of a maxi mum of 385 dwelling

units, 1,155 transient rooms (or spaces), and 500,940 square feet

of non - residential uses , or some proportional mix thereof .

41. The application was reviewed by the CountyÓs

development review committee (DRC) on November 27, 2012, whic h

recommended denial due to the density and intensity impacts.

42. Largely in response to the DRCÓs concerns, and after

lengthy discussions with County staff, Rockland submitted

revisions to its application on April 1, 2014. The revisions

greatly reduced the overall size, as well as the density and

intensity impacts of, the proposed amendment. The revised

application included the Big Coppitt parcel for the first time.

43. Rockland revised the application again on June 17,

2014, to reflect the same propo sed acreages and designations as

the approved Plan Amendment.

44. The application, as amended on June 17, 2014, was

approved by both the DRC and the County Planning Commission. On

December 10, 2014, the Board of County Commissioners voted to

transmit the application to the state land planning agency, the

Department of Economic Opportunity (DEO), pursuant to section

163.3184(4) . 9/

45. On March 20, 2015, DEO issued its Objections,

Recommendations, and Comments (ORC) report objecting to the Plan

Amendment, particularly the increased residential development

potential on the Big Coppitt parcel. The ORC report included the

following relevant objections:

The Plan Amendment is inconsistent with

policy 108.2.6, which adopts the MIAI Land

Use Table, d esignating re sidential uses as

Ð generally incompatibleÑ in the 65 - 69 DNL

zone. The Big Coppitt parcel lies within the

65 - 69 DNL zone where residential use is

discouraged. The Land Use Table notes that

Ð [a]lthough local conditions regarding the

need for affordable hou sing may require

residential uses in these [z]ones . . . .

The absence of viable alternative development

options should be determined and an

evaluation should be conducted locally prior

to local approvals indicating that a

demonstrated community need for the

residential use would not be met if

development we re prohibited in these

[z]ones.Ñ

While the applicant supports the application

by arguing that it will support a multi -

family affordable housing development,

nothing in the amendment . . . provides

assu rance that any future residential

development on this property will be for

affordable housing. While there is a

shortage of affordable housing in the County,

especially in the lower keys, there is no

shortage of vacant lots with density for

housing. The County failed to establish

t hat, Ð in the absence of viable alternative

development . . . a demonstrated community

need for the residential use would not be met

if development were prohibitedÑ on the

parcel.

The [Big Coppitt] parcel is entirely within

the Coastal High Hazard Area (CHHA) and

therefore, inconsistent with Monroe County

comprehensive plan policy 101.14.1, which

states, Ð Monroe County shall discourage

developme nts proposed within the [CHHA].Ñ

The [Big Coppitt] parcel is very narrow and

developm ent of the area adjacent to the mine

pools could have negative water quality

impacts on the tidally influenced mining pool

and is inconsistent with the Principles for

Guiding Development in the Florida Keys.

46. After consideration of the ORC report, Roc kland

submitted a text amendment application creating FLUE Policy

107.1.6 to restrict development on the Big Coppitt parcel to

affordable housi ng. In addition, the sub - area p olicy requires

noise attenuation of all habitable buildings in the 65 - 69 DNL to

a n indoor noise level reduction of at least 25 decibels (25dB).

Similarly, the Policy requires noise attenuation of habitable

buildings within the 70 - 74 DNL zone to achieve an indoor noise

level reduction of at least 30dB.

47. The amendment to the FLUM remained the same.

48. The County adopted both the FLUM amendment, and the

text amendment creating Policy 107.1.6, on February 16, 2016, and

for warded the Plan Amendment to DEO for review, pursuant to

163.3184(4)(e)2.

49. On April 25, 2016, DEO issued a notice of intent to

find the Plan Amendment Ðin compliance.Ñ The instant Plan

Amendment challenge followed.

IX. PetitionersÓ Challenge

50. Petitioners allege two bases on which the Plan

Amendment should be found not Ðin compliance.Ñ

51. First, Pe titioners allege the Plan Amendment is

int ernally inconsistent with Plan P olicies 108.2.5 and 101.14.1,

in violation of section 163.3177(2), which states that

Ð[c]oordination of the several elements of the [Plan] shall be a

major objective of the planning process. The several elements of

the comprehensive plan shall be consistent.Ñ

52. Second, Petitioners allege the Plan Amendment is

inconsistent with the Principles, in violation of section

163.3184(1)(b). That statute requires all plan amendments in t he

Keys Area of Critical State Concern (ACSC) be consistent with the

applicable principles.

A. Policy 108.2.5

53. Petitioners allege that Policy 108.2.5 applies to the

Plan Amendment because the application was filed after Policy

108.2.5 took effect on J uly 25, 2012. If proven, Policy 108.2.5

would require the applicant to follow the procedure for approval

of residential density in the noise zones, including submission

of a supplemental noise study and a legislative finding as to

whether the Plan Amendme nt is subject to the density and

intensity restrictions in the MIAI.

54. RocklandÓs original application for the Plan Amendment

was made on May 18, 2012, prior to the effective date of Policy

108.2.5. Petitioners argue that t he revised application on

Apr il 1, 2014, should be considered a new application subject to

Policy 108.2.5 because it was made two years after adoption of

the Policy and contained significant substantive changes to the

original application. In essence, Petitioners argue that the

2014 revised application (and subsequent changes thereto)

constitute a new and different application than the May 2012

application.

55. Petitioners introduced no evidence that any

administrative provision of the Plan, or any other County

ordinance or regulatio n, provides for expiration of an

application for plan amendment after a specified time period.

56. The April 2014 changes were filed with the County in

strike - through/underline (legislative format) as Ðrevisions to

its FLUM amendment application.Ñ The Ju ne 17, 2014, changes were

likewise filed in legislative format as Ðadditional revisions to

its FLUM amendment application.Ñ

57. One of the main reasons for delay between the May 2012

application and the April 2014 revisions was County staffÓs

recommendat ion that the Rockland parcel s be rezoned to the

Commercial - 2 (C - 2) zoning category, a category which was being

created and would be consistent with the Commercial FLUM

category. Staff recommended the category because it would

prohibit residential uses but allow Rockland to proceed with

plans for commercial and retail development of the formerly

industrial property.

58. The C - 2 zoning category was not finalized and adopted

by the County until early 2014.

59. The application, as revised in June 2014, was n ot

reviewed again by the DRC, but was set for hearing by the

Planning Commission on August 27, 2014, and considered by the

County Commission on December 10, 2014, which approved the

application for transmittal.

60. Rockland was not required to pay a secon d application

fee for the revised application in 2014; however, the County

cha rged Rockland an additional fee to cover a second hearing

before both the Planning Commission and the County Commission.

61. The CountyÓs director of planning and environmental

resources, Mayte Santamaria, testified that it is not unusual for

delays to occur between initial applications for, and final

adoption of, plan amendments. Some applicants request an

application be put on hold while they address issues with

surrounding p roperty owners. Other times, significant changes

are made in the interim, especially in response to concerns

raised by the state land planning agency, which take time to

draft and refine. In neither case does the County consider the

passage of time to re quire a new application.

62. Likewise, the revisions do not require a new

application, even revisions which remove property from, or add

property to, a FLUM amendment application.

63. Clearly , Petitioners believe it was unfair to allow the

application, which was Ðon holdÑ for almost two years and revised

in 2014 to exclude some of the original property, and include

additional property adjacent to their subdivision, to proceed

without applying newly - adopted plan policies.

64. Despite their belief, Petiti oners did not prove that

the application, as revised in April and June 2014, was a new

application subject to Policy 108.2.5.

B. Policy 101.14.1

65. Next, Petitioners allege the Plan Amendment is

internally inconsistent with Policy 101.14.1, which provi des

that the ÐCounty shall discourage developments within the

Coastal High Hazard Area (CHHA).Ñ

66. The subject property is located entirely within the

CHHA. In fact, Ms. Santamaria testified that Ðalmost the entire

Keys is in the [CHHA],Ñ with exceptio n of some areas just along

U.S. Highway 1 in the Upper Keys.

67. The Plan Amendment reduces total potential non -

residential intensity on the subject property, while increasing

potential residential density. The Plan Amendment also

eliminates future tran sient (hotel and motel) density, as well

as future dredging and other industrial uses.

68. ÐDevelopmentÑ is def ined broadly in section 380.04 as

Ðthe carrying out of any building activity or mining operation,

the making of any material change in the use or appearance of

any structure or land, or the dividing of land into three or

more parcels.Ñ £ 380.04(1), Fla. Stat. The definition

specifically includes Ða change in the intensity of use of land,

such as an increase in the number of dwelling units . . . on

land or a material increase in the number of businesses,

manufacturing establishments, offices, or dwelling units . . .

on land.Ñ § 380.04(2)(b), Fla. Stat.

69. Notably, the definition also includes Ðmining or

excavation on a parcelÑ and Ðdeposit . . . o f fill on a parcel

of land.Ñ £ 380.04(2)(c) and (d), Fla. Stat.

70. Two expert witnesses testified regarding whether the

Plan Amendment violates the CountyÓs policy to discourage

development within the CHHA. In Ms. SantamariaÓs opinion, the

Plan A mendment, on balance, is consistent with the policy to

discourage development because it prohibits residential

development of the Rockland parcels, and prohibits all but

affordable housing units on the Big Coppitt parcel.

71. In addition, the amendment p rohibits future uses which

are within the statutory definition of Ðdevelopment,Ñ such as

industrial, marinas, market - rate housing, and residential

subdivisions.

72. Max Forgey, expert witness for Petitioners, opined

that the increase in density from 91 t o 213 units is Ðas far

from discouraging as I could imagine.Ñ

73. Overall, the Plan Amendment reduces non - residential

intensity while increasing residential density. Given the

totality of the evidence, it is reasonable to find that the Plan

Amendment complies with Policy 101.14.1 by discouraging many

types of development allowed on the property under the existing

FLUM designations.

C. Principles for Guiding Development

74. PetitionersÓ final argument is that the Plan Amendment

is inconsistent with the Principles in the Keys ACSC.

75. The property subject to the Plan Amendment is located

in the Keys ACSC, thus, subject to the Pri nciples in section

380.0552(7), which reads as follows:

(7) PRINCIPLES FOR GUIDING DEVELOPMENT. Ï

State, regional, and local agencies and

units of government in the Florida Keys Area

shall coordinate their plans and conduct

their programs and regulatory activities

consistent with the principles for guiding

development as specified in chapter 27F - 8,

Florida Administrative Code, as amended

effective August 23, 1984, which is adopted

and incorporated herein by reference. For

the purposes of reviewing the consistency of

the adopted plan, or any amendments to that

plan, with the principles for guiding

development, and any amen dments to the

principles, the principles shall be

construed as a whole and specific provisions

may not be construed or applied in isolation

from the other provisions . However, the

principles for guiding development are

repealed 18 months from July 1, 1986 . After

repeal, any plan amendments must be

consistent with the following principles:

(a) Strengthening local government

capabilities for managing land use and

development so that local government is able

to achieve these objectives without

continuing t he area of critical state

concern designation.

(b) Protecting shoreline and marine

resources, including mangroves, coral reef

formations, seagrass beds, wetlands, fish

and wildlife, and their habitat.

(c) Protecting upland resources, tropical

biological communities, freshwater wetlands,

native tropical vegetation (for example,

hardwood hammocks and pinelands), dune

ridges and beaches, wildlife, and their

habitat.

(d) Ensuring the maximum well - being of the

Florida Keys and its citizens through sound

eco nomic development.

(e) Limiting the adverse impacts of

development on the quality of water

throughout the Florida Keys.

(f) Enhancing natural scenic resources,

promoting the aesthetic benefits of the

natural environment, and ensuring that

development is compatible with the unique

historic character of the Florida Keys.

(g) Protecting the historical heritage of

the Florida Keys .

(h) Protecting the value, efficiency, cost -

effectiveness, and amortized life of

existing and proposed major public

investm ents, including :

1. The Florida Keys Aqueduct and water

supply facilities;

2. Sewage collection, treatment, and

disposal facilities;

3. Solid waste treatment, collection, and

disposal facilities;

4. Key West Naval Air Station and other

military fac ilities ;

5. Transportation facilities;

6. Federal parks, wildlife refuges, and

marine sanctuaries;

7. State parks, recreation facilities,

aquatic preserves, and other publicly owned

properties;

8. City electric service and the Florida

Keys Electric Co - op; and

9. Other utilities, as appropriate.

(i) Protecting and improving water quality

by providing for the construction,

operation, maintenance, and replacement of

stormwater management facilities; central

sewage collection; treatment and disposal

facilities; the installation and proper

operation and maintenance of onsite sewage

treatment and disposal systems; and other

water quality and water supply projects,

including direct and indirect potable reuse.

(j) Ensuring the improvement of nearshore

water quality by requiring the construction

and operation of wastewater management

facilities th at meet the requirements of

ss. 381.0065(4)(l) and 403.086(10), as

applicable, and by directing growth to areas

served by central wastewater treatment

faciliti es through permit allocation

systems.

(k) Limiting the adverse impacts of public

investments on the environmental resources

of the Florida Keys.

(l) Making available adequate affordable

housing for all sectors of the population of

the Florida Keys .

(m) Providing adequate alternatives for the

protection of public safety and welfare in

the event of a natural or manmade disaster

and for a postdisaster reconstruction plan.

(n) Protecting the public health, safety,

and welfare of the citizens of the Florida

Keys and maintaining the Florida Keys as a

unique Florida resource. (emphasis added).

76. PetitionersÓ challenge, as set forth in the Amended

Petition, focuses on subsections (7)(a), (b), (e), and (h)4.

77. Petitioners introduced no evidence to support a

finding that the Plan Amendment i s inconsistent with either

subsection (7)(a), (b), or (e) regarding the local governmentÓs

capability to manage land use and development, protect shoreline

and marine resources, and protect water quality, respectively.

1 . s ection 380.0552(7)(h)4.

78 . Petitioners argue that the Plan Amendment will

adversely impact the Ðvalue, efficiency, cost - effectiveness, and

amortized lifeÑ of the Station, in violation of subsection

(7)(h)4.

79 . A portion of the Rockland parcel s lie within the

75 - 79 DNL zone, in which the Navy deems residential development

incompatible and recommends that the local government prohibit

it. The Plan Amendment changes the FLUM designation of the

Rockland parcel s from Industrial, which allows residential

development at 47.3du/acre, to Commercial, which does not allow

any residential development. Thus, the Plan Amendment prohibits

future resident ial development in the 75 - 79 DNL zone as

recommended by the Navy.

80 . A portion of the Rockland parcel s and the southern end

of the Big Co ppitt parcel lie within the 70 - 74 DNL zone. The

rema inder of the Big Coppitt parcel lies within the 65 - 69 DNL

zone.

81 . The Navy deems residential development in the 70 - 74

and 65 - 69 DNL zones as Ðgenerally incompatible,Ñ but not

prohibited. The AICUZ table strongly discourages residential

use in the 70 - 74 DNL zone, and discourages residential use in

the 65 - 69 DNL zone.

82 . With respect to the 65 - 69 and 70 - 74 DNL zones, the

AICUZ contains the following recommendations:

The absence of viable alternat ive

development options should be determined and

an evaluation should be conducted locally

prior to local approvals indicating that a

demonstrated community need would not be met

if development were prohibited in these

zones.

* * *

Where the community de termines that these

uses must be allowed, measures to achieve an

outdoor to indoor [noise level ratio or] NLR

of at least 25 decibels (dB) in DNL 65 to 69

and NLR of 30 dB in DNL 70 to 74 should be

incorporated into building codes and be in

individual appr ovals . . . .

Normal permanent construction can be

expected to provide a NLR of 20 dB, thus the

reduction requirements are often stated as

5, 10, or 15 dB over standard

construction . . . .

83 . The Plan Amendment, through the sub - area policy,

prohibit s residential dwellings on that portion of the Big

Coppitt parcel within the 70 - 74 DNL zone. As such, the Plan

Amendment prohibits residential use where the Navy strongly

discourages said use.

84 . The majority of the Big Coppitt parcel lies within the

6 5 - 69 DNL zone. The Plan Amendment increases allowable

residential density from 91 units to 213 units. Through the

sub - area policy, the Plan Amendment requires sound attenuation

of at least 25 dB for residences in the 65 - 69 DNL zone.

Further, the Plan Am endment requires sound attenuation of at

least 30 dB for any habitable buildings within the 70 - 74 DNL

zone. 10/

85 . One purpose of recommending sound attenuation for

dwelling units within noise zones of 65 DNL and higher, is to

limit the number of communi ty noise complaints to the Station.

86 . Community complaints regarding noise from Station

exercises are directed to the StationÓs Air Operations

Department. The Station receives an average of 10 complaints

per month, but that number fluctuates with th e number of

squadrons in town for training at the Station.

87 . Sometime in the past, the Station altered a training

flight arrival pattern known as the Dolphin One Arrival. The

arrival pattern is now called the King One , and it avoids

directly flying ov er Stock Island.

88 . The evidence did not clearly establish whether the

pattern was changed due to community noise complaints or due to

the fact that Stock Island was in residential use. Captain

McAlearney testified that

because of the population on St ock Island,

we set up a little to the south of what

would be optimum for practicing, or most

safe, frankly, for practicing a carrier

landing or bringing a formation of airplanes

into the field.

89 . On cross - examination, Captain McAlearney admitted that

the change oc curred well before his time as station c ommander

and that he had no direct knowledge of the reason the change was

made.

90 . Petitioners argue that the County must do more than

just establish a community need in order to approve new housing

i n the 65 - 69 DNL zone consistent with the Navy recommendations.

They argue that, pursuant to the AICUZ table, the County must

establish that no viable alternative development options exist

and that the demonstrated community need would not be met if

develo pment were prohibited in that zone.

91 . The County conceded that other parcels are available

for construction of affordable housing within the Keys, however,

there are very limited locations of Tier III, 11/ scarified

properties, outside of the 65 - 69 DNL z one in the Lower Keys with

potential for affordable housing development. The parcels are

scattered and none would support a large - scale affordable

housing development such as is proposed pursuant to the Plan

Amendment.

92 . While the CountyÓs demonstrate d need for affordable

housing may be met, eventually, by incremental development of

smaller scattered parcels and occupancy in renovated mobile home

parks, the Plan Amendment addresses a significant amount of the

affordable housing deficit in the immediate future.

93 . Based on the totality of the evidence, Petitioners did

not demonstrate that the Plan Amendment is inconsistent with

section 380.0552(7)(h)4. In reviewing and recommending adoption

of the Plan Amendment, County staff carefully considered the

recommendations of the Navy AICUZ table and revised the

amendment to prohibit residential use in the 75 - 79 DNL zone,

where the Navy deems those uses incompatible and recommends

prohibition of said uses; and to prohibit residential use in the

70 - 74 DNL zone , where the Navy deems those uses generally

incompatible and strongly discourages them. The Plan Amendment

was crafted to limit residential use to those areas within the

65 - 69 DNL zone, where Navy discourages, but does not recommend

prohibition of, reside ntial uses. Further, County staff

determined a local community need for affordable housing,

determined that the need could not be addressed through viable

alternatives, and required sound attenuation as recommended by

the Navy.

94 . While the Navy intro duced some evidence regarding

potential impacts to the Station from increased residential

density on Big Coppitt Key, the evidence was speculative.

Captain McAlearneyÓs testimony did not establish that additional

noise complaints (assuming the new develop ment would generate

new noise complaints) would negatively impact the Ðvalue,

efficiency, cost - effectiveness, and amortized lifeÑ of the

Station.

2 . section 380.0552(7)(g)

95 . Although not included in their Amended Petition,

Petitioners argued at hea ring that the Plan Amendment was

inconsistent with section 380.0552(7)(g), the Principle to

Ðprotect[] the historical heritage of the Florida Keys.Ñ

PetitionersÓ expert based his opinion of inconsistency with this

principle on the long - standing presence o f the Station in the

Keys and its important role in naval air training.

96 . No evidence was introduced to establish that the

Station itself has a historic resource designation or contains

any historic structures or archeological resources. The site is

n ot designated as an historic resource by either the County or

the State.

97 . Petitioners did not prove the Plan Amendment is

inconsistent with this Principle.

X. Other Principles

A. section 380.0552(7)(l)

98. S ection 380.0552(7)(l) sets forth the Pri nciple to

Ð[make] available adequate affordable housing for all sectors of

the population in the Florida Keys.Ñ

99. The Plan Amendment limits development of the Big

Coppitt parcel to deed - restricted affordable housing and

requires, at a minimum, a mix of at least 10 percent median -

income category and at least 20 percent mix of very - low and low -

income categories.

100. The Plan Amendment would allow development of 213 of

the 700 affordable housing units the County has to allocate

through 2023. The Plan Am endment addresses affordable workforce

housing needs in the County for income levels in both the

service industry and the public sector.

101 . The Plan Amendment furthers section 380.0552(7)(l) by

making available affordable housing for residents in a rang e of

income levels from very low - and low - income to moderate - income.

B. Remaining Principles

102 . The majority of the remaining Principles either do

not apply to the Plan Amendment, or have only limited

application. Very little evidence was introduced regarding

these Principles. No evidence supports a finding that the Plan

Amendment is inconsistent with the remaining Principles.

103 . The evidence did not establish that the Plan

Amendment is inconsistent with the Principles as a whole.

CONCLUSIONS OF LAW

104 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to sections 120.569, 120.57(1), and 163.3184(5), Florida

Statutes.

105 . To have standing to challenge a plan amendment, a

person mu st be an affected person as defined in section

163.3184(1)(a).

106 . Petitioners and the Navy are affected persons within

the meaning of the statute.

107 . Rockland has standing to intervene in this proceeding

because Rockland is both the owner of subjec t property and the

applicant for the Plan Amendment.

108 . As the party challenging the Plan Amendment,

Petitioners have the burden to prove the Plan Amendment is not

Ðin compliance,Ñ as that term is defined in section

163.3184(1)(b).

109 . The CountyÓs d etermination that the Plan Amendment is

in compliance is presumed to be correct and must be sustained if

the CountyÓs determination is Ðfairly debatable.Ñ

110 . The term Ðfairly debatableÑ is not defined in chapter

163, but in Martin County v. Yusem , 690 So. 2d 1288, 1295 (Fla.

1997), the Supreme Court of Florida explained that Ð[t]he fairly

debatable standard is a highly deferential standard requiring

approval of a planning action if reasonable persons could differ

as to its propriety.Ñ

111 . The standa rd of proof to establish a finding of fact

is preponderance of the evidence. See § 120.57(1)(j), Fla. Stat.

112 . The elements of a comprehensive plan must be

internally consistent. See § 163.3177(2), Fla. Stat.

ÐComprehensive plans may only be amended in such a way as to

preserve the internal consistency of the plan pursuant to section

163.3177.Ñ £ 163.3187(4), Fla. Stat.

113 . Petitioners did not prove beyond fair debate that the

Plan Amendment is inconsistent with FLUE Policy 108.2.5.

Rockland appli ed for the Plan Amendment prior to the effective

date of the Policy, which , on its face , applies only to

applications made after the effective date.

114 . Petitioners did not prove beyond fair debate that the

Plan Amendment is inconsistent with FLUE Policy 101.14.1. While

the Plan Amendment allows for an increase in residential density

within the CHHA, it simultaneously reduces future potential non -

residential uses by approximately 500,000 square feet. The

definition of development is inclusive, applying to both

residential and non - residential uses, as well as subdivision and

clearing of land. It is at least fairly debatable that the Plan

Amendment is consistent with Policy 101.14.1.

115 . Petitioners did not prove beyond fair debate that the

Plan Amendm ent renders the plan internally inconsistent in

violation of section 163.3177(2).

116 . Finally, Petitioners did not demonstrate that the Plan

Amendment is inconsistent with the Principles for the Keys ACSC

set forth in section 380.0552(7). While Petition ers introduced

some evidence that increased residential density in the 65 - 69 DNL

zone could generate more noise complaints, the evidence did not

support a finding that the development would adversely impact the

value, efficiency, cost - effectiveness, or amo rtized life of the

Station.

117 . Assuming, arguendo, Petitioners proved the Plan

Amendment was inconsistent with section 380.0552(7)(h)4., that

determination alone would not support the conclusion that the

Plan Amendment is inconsistent with the Principle s. ÐFor

purposes of reviewing consistency of . . . any amendments to the

[local governmentÓs] plan, with the principles for guiding

development . . . , the principles shall be construed as a whole

and specific provisions may not be construed or applied in

isolation from the other provisions.Ñ £ 380.0552(7), Fla. Stat.

118 . The evidence supports a conclusion that the Plan

Amendment is consistent with the Principles as a whole.

119 . In summary, Petitioners failed to prove beyond fair

debate that the Plan Amendment is not Ðin compliance,Ñ as that

term is defined in section 163.3184(1)(b).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Economic

Opportunity enter a final order determi ning that the Monroe

County Comprehensive Plan Amendment adopted by Ordinances 003 -

2016 and 004 - 2016 on February 10, 2016, is Ðin compliance,Ñ as

that term is defined in section 163.3184(1)(b), Florida Statutes.

DONE AND ENTERED this 9 th day of August , 201 6 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of August , 2016 .

ENDNOTE S

1/ All references herein to the Florida Statutes are to the 2015

version, unless otherwise noted.

2/ Mr. Dani elsÓ P etition was filed March 7, 2016, with the

Department of Economic Opportunity and forwarded to DOAH on

March 10, 2016.

3/ The Petitions were consolidated with a third petition filed

by Karen Majchrowicz and assigned DOAH Case No. 16 - 1351GM, but

that case was subsequently severed and closed.

4/ The original application listed the owners as Frank P.

Toppino LP; Rockland Operations, LLC; Rockland Recycling Center,

Inc.; and various companies owned or controlled by Mr. Toppino,

the p resident of Rocklan d Operations, LLC. The application was

filed prior to the formation of Rockland Commercial Center, Inc.

For purposes of this Recommended Order, Rockland will be

referred to as the owner of the property and the applicant for

the Plan Amendment.

5/ The r eference is to the Plan in effect on the date the Plan

Amendment was adopted. The Plan was amended again on April 13,

2016.

6/ Buildable acreage excludes required open space.

7/ The minimum open space ratio for the Industrial category is

0.20. At a m aximum density of 2du/acre, the Rockland parcels

have a residential development capacity of 47.3 dwelling units

(59.18 x 0.20 = 11.8; 59.18 - 11.8 = 47.3).

8/ The County is subject to a rate of growth ordinance, or ROGO,

which limits the number of permit s that can be issued in each

residential category (e.g., market - rate, affordable, transient)

on a yearly basis. The purpose of the ROGO is to maintain

hurricane evacuation times pursuant to standards imposed by the

State.

9/ The subject Plan Amendment l ies in an Area of Critical State

Concern designated pursuant to section 380.05, Flo rida Statutes,

and is, thus, subject to the state coordinated review process

for comprehensive plan amendments, pursuant to section

163.3184(2)(c). Under the state coordinated review process, the

local government must transmit the proposed amendment to th e

reviewing agencies (specified in 163.3184(3)(b)2. - 4.), within 10

days after the public hearing at which the governing body votes

to transmit the amendment. The reviewing agencies must submit

their comments concerning the plan amendment, if any, to DEO

w ithin 30 days of receipt. DEO coordinates the comment process

and notifies the local government of concerns raised by the

reviewing agencies.

DEO may also comment on the proposed plan amendment, pursuant to

163.3184(4)(d), and issue a report giving its o bjections,

recommendations and comments regarding the proposed amendment

(ORC report) within 60 days after receipt. Upon receipt of the

ORC report, the local governing body shall hold a public hearing

within 180 days and determine whether to adopt the ame ndment.

10/ The sub - area policy prohibits residential dwe lling units

within the 70 - 74 DNL zone, but would allow a clubhouse or other

habitable structure to be developed in that zone.

11/ Affordable housing units can only be issued for Tier III

propert ies which support little or no environmental resources.

COPIES FURNISHED:

Barton William Smith, Esquire

Smith Oropeza Hawks, P . L .

138 - 142 Simonton Street

Key West, Florida 33040

(eServed)

Ralf G. Brookes, Esquire

Suite 107

1217 East Cape Coral Parkway

Cape Coral, Florida 33904

(eServed)

Steven T. Williams, Esquire

Monroe County Attorney's Office

Suite 408

1111 12th Street

Key West, Florida 33040

(eServed)

Ashley N. Sybesma, Esquire

Smith, Oropeza, Hawks, P.L.

138 - 142 Simonton Street

Key West, Flori da 33040

(eServed)

LT Sara Wooten, Esquire

United States Navy

Region Legal Service Office Southeast

Naval Air Station Key West

NASKW Post Office Box 9001

Key West, Florida 33040

LCDR Elizabeth Rosso , Esquire

Region Environmental Counsel

United States N avy

Navy Region Southeast

Langley Street, Building 919

Jacksonville, Florida 32212

(eServed)

Christina Arzillo Shideler, Esquire

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServ ed)

James W. Poppell, General Counsel

Department of Economic Opportunity

Caldwell Building, MSC 110

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Cissy Proctor, Executive Director

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

Katie Zimmer, Agency Clerk

Department of Economic Opportunity

Caldwell Building

107 East Madison Street

Tallahassee, Florida 32399 - 4128

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.