Department of Community Affairs, Division of Community Planning

DEPARTMENT OF COMMUNITY AFFAIRS
Division of Community Planning

DEO Final Order No.: DEO-12-001

DEPARTMENT OF ECONOMIC DEVELOPMENT

In re:      A LAND DEVELOPMENT REGULATION

               ADOPTED

               BY ISLAMORADA, VILLAGE OF ISLANDS

               ORDINANCE NO. 11-28

__________________________________________________

FINAL ORDER

The Department of Economic Development (the “Department”) hereby issues its Final Order, pursuant to §§ 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Stat. (2010), approving a land development regulation adopted by a local government within the Florida Keys Area of Critical State Concern as set forth below.

FINDINGS OF FACT

1. The Florida Keys Area is a statutorily designated area of critical state concern, and Islamorada, Village of Islands is a local government within the Florida Keys Area.

2. On December 21, 2011, the Department received for review Islamorada, Village of Islands Ordinance No. 11-28 (“Ord. No. 11-28”) adopted by the Village on December 15, 2011.

3. Ord. No. 11-28 amends Chapter 6, Buildings and Building Regulations, Article III Floodplain Managements Standards of the Code of Ordinances to provide for updates and changes consistent with Federal Emergency Management Agency Requirements and Standards. The purpose of ordinance No. 11-28 is to insure consistency between the Code and the Biological Opinion prepared by the U.S. Fish and Wildlife Service for the Federal Emergency Management Agency with respect to the National Flood Insurance Program.

CONCLUSIONS OF LAW

4. The Department is required to approve or reject land development regulations or portions thereof that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. §§ 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Stat. (2010).

5. Islamorada, Village of Islands is a local government within the Florida Keys Area of Critical State Concern. § 380.0552, Fla. Stat. (2010), and Rule 28-29.002 (superseding Chapter 27F-8), Fla. Admin. Code.

6. “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2010). The regulations adopted by Ord. 11-28 are land development regulations.

7. All land development regulations enacted, amended or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the “Principles”) as set forth in § 380.0552(7), Fla. Stat. (2010). See Rathkamp v. Department of Economic Development, 21 F.A.L.R. 1902 (Dec. 4, 1998), aff’d, 740 So. 2d 1209 (Fla. 3d DCA 1999). The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions.

8. Ord. 11-28 promotes and furthers the following Principles:

(a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuing the area of critical state concern designation.

(c) To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation, dune ridges and beaches, wildlife and their habitat.

9. Ord. 11-28 is not inconsistent with the remaining Principles. Ord. 11-28 is consistent with the Principles for Guiding Development as a whole.

10. Ord. 11-28 is consistent with the Village Comprehensive Plan Policy 4-3.2.6 Manage Land Use in the Floodplain and Coastal Areas, and Policy 6-1.3.1 Enforce Policies to Maintain the Floodplain.

WHEREFORE, IT IS ORDERED that Ord. 11-28 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby APPROVED.

This Order becomes effective 21 days after publication in the Florida Administrative Weekly unless a petition is filed as described below.

DONE AND ORDERED in Tallahassee, Florida.

NOTICE OF ADMINISTRATIVE RIGHTS

ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY’S ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING.

IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT’S ACTION, THEN THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT’S ACTION OR REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS CHOSEN TO JUSTIFY ITS ACTION OR INACTION.

IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND

YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.

IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF ECONOMIC DEVELOPMENT A WRITTEN PLEADING ENTITLED, "PETITION FOR ADMINISTRATIVE PROCEEDINGS” WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY CLERK, IN THE DEPARTMENT’S OFFICE OF GENERAL COUNSEL, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.

THE PETITION MUST MEET THE FILING REQUIREMENTS IN SUBSECTION 28-106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH SUBSECTION 28-106.201(2), FLORIDA ADMINISTRATIVE CODE.

A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.

YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE PROCEEDING OR A FORMAL HEARING. IF YOU DO NOT FILE A PETITION WITH THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER.

                                                                                          __/s/____________________________

                                                                                          J. Thomas Beck, AICP

                                                                                          Director, Division of Community Planning

                                                                                          Department of Economic Development

                                                                                          2555 Shumard Oak Boulevard

                                                                                          Tallahassee, Florida 32399-2100

CERTIFICATE OF FILING AND SERVICE

I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned Agency Clerk of the Department of Economic Development, and that true and correct copies have been furnished to the persons listed below by the method indicated this 4th day of January, 2012.

                                                                                          __/s/____________________________

                                                                                          Miriam Snipes, Agency Clerk

By U.S. Mail:

Honorable Michael Reckwerdt, Mayor

Islamorada, Village of Islands

Post Office Box 568

Islamorada, FL 33036

 

Beverly Raddatz, Village Clerk

Islamorada, Village of Islands

Post Office Box 568

Islamorada, FL 33036

 

Nina Boniske, Esq.

 

James White, Esq.

 

Weiss Serota Helfman Pastoriza

Guedes Cole & Boniske, P.A.

2525 Ponce De Leon Blvd., Suite 700

Coral Gables, Florida 33134-6045