DEPARTMENT OF COMMUNITY AFFAIRS
DCA Final Order No.: DCA06-OR-010
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
In re: CITY OF MARATHON LAND DEVELOPMENT
REGULATIONS ADOPTED BY ORDINANCE NO. 2005-24
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IMMEDIATE FINAL ORDER
The Department of Community Affairs (the “Department”) hereby issues this Immediate Final Order, pursuant to §120.569(2)(n), §380.05(6), and §380.0552(9), Fla. Stat. (2005), 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 City of Marathon is a local government within the Florida Keys Area of Critical State Concern.
2. On January 11, 2006, the Department received for review City of Marathon Ordinance No. 2005-24, adopted by the City of Marathon Board of City Commissioners on January 3, 2006 (“Ord. 2005-24”). Ord. 2005-24 adopts amendments to Chapter 9.5 of the City of Marathon Code by creating a new Section 9.5-227, Emergency Temporary Housing; authorizing the temporary placement of Recreation Vehicles in all land use districts, and providing specific standards and procedures for approval of Recreational Vehicles as Emergency Temporary Housing for storm-displaced residents. Ord. 2005-24 is a permanent measure; Section 2 provides that the temporary housing may remain on the property for a period not to exceed 18 months from the date of the federal, state, or local declaration of emergency or until a final inspection or certificate of occupancy is issued on the repairs made to the dwelling unit, whichever comes first.
3. As a result of the devastating effects of Hurricane Wilma, certain residents of Monroe County have been forced to evacuate their homes and require temporary housing. Based upon the information contained in Ord. 2005-24, the Department finds that there is an immediate danger to the public health, safety and welfare that requires the issuance of an Immediate Final Order.
4. Ord. 2005-24 is consistent with the City's 2010 Comprehensive Plan.
CONCLUSIONS OF LAW
5. The Department is required to approve or reject land development regulations that are enacted, amended or rescinded by any local government in the Florida Keys Area of Critical State Concern. §380.05(6), and §380.0552(9), Fla. Stat. (2005).
6. The City of Marathon is a local government within the Florida Keys Area of Critical State Concern. §380.0552, Fla. Stat. (2005) and Rule 28-29.002 (superseding Chapter 27F-8), Fla. Admin. Code.
7. “Land development regulations” include local zoning, subdivision, building and other regulations controlling the development of land. §380.031(8), Fla. Stat. (2005). The regulations adopted by Ord. 2005-24 are land development regulations.
8. 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. See Rathkamp v. Department of Community Affairs, 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.
9. Ord. 2005-24 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 the continuation of the area of critical state concern designation.
(k) To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a post disaster reconstruction plan.
10. Ord. 2005-24 is not inconsistent with the remaining Principles. Ord. 2005-24 is consistent with the Principles for Guiding Development as a whole.
11. Because there is an immediate danger to the public health, safety and welfare, the approval of Ord. 2005-24 shall be effective immediately. §120.569(2)(n), Fla. Stat. (2005).
WHEREFORE, IT IS ORDERED that:
A. City of Marathon Ordinance 2005-24 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby APPROVED; and
B. This Order and Marathon Ordinance 2005-24 shall become effective immediately upon filing with the Agency Clerk.
DONE AND ORDERED in Tallahassee, Florida.
______________________________
THADDEUS L. COHEN, Secretary
Department of Community Affairs
NOTICE OF RIGHTS
I. Challenges to the Immediate Effective Date:
ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS IMMEDIATE FINAL ORDER AND WHO DISPUTES THE FINDING THAT THERE IS AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE THAT REQUIRES AN IMMEDIATE FINAL ORDER MAY APPEAL THIS IMMEDIATE FINAL ORDER ON THAT BASIS OR SEEK AN INJUNCTION TO SET ASIDE THE IMMEDIATE NATURE OF THIS ORDER PURSUANT TO SECTIONS 120.569(2)(n) AND 120.68(1), FLORIDA STATUTES.
A. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS PUBLISHED IN THE FLORIDA ADMINISTRATIVE WEEKLY. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES.
B. TO SEEK AN INJUCTION, A COMPLAINT MUST BE FILED WITH THE APPROPRIATE CIRCUIT COURT PURSUANT TO THE FLORIDA RULES OF CIVIL PROCEDURE. THE COMPLAINT MUST BE ACCOMPANIED WITH THE FILING FEE REQUIRED BY THE CLERK OF THE CIRCUIT COURT.
II. Challenges to All Other Issues:
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.
A. 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.
B. 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.
C. IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF COMMUNITY AFFAIRS 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.
D. 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.
E. 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.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Immediate Final Order has been filed with the undersigned Agency Clerk, and that true and correct copies have been furnished to the persons listed below by the method indicated this 17th day of January, 2006.
____________________________
Paula Ford, Agency Clerk
By U.S. Mail:
Honorable John Bartus, Mayor
City of Marathon
10054-55 Overseas Highway
Marathon, Florida 33050
Cindy Ecklund, City Clerk
City of Marathon
10045-55 Overseas Highway
Marathon, Florida 33050
Mike Puto, City Manager
City of Marathon
10054-55 Overseas Highway
Marathon, Florida 33050
John Herin, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
Suite 2200 Museum Tower
150 West Flagler Street
Miami, Florida 33130
