DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order, DEO-13-129
In re:A LAND DEVELOPMENT REGULATION
ADOPTED BY THE CITY OF KEY WEST,
FLORIDA, ORDINANCE NO. 13-18
___________________________________________
FINAL ORDER APPROVING
CITY OF KEY WEST ORDINANCE NO. 13-18
The Department of Economic Opportunity (“Department”) hereby issues its Final Order, pursuant to §§ 380.05(6) and (11), Fla. Stat. (2012), approving land development regulations adopted by the City of Key West, Florida, Ordinance No. 13-18 (the “Ordinance”).
FINDINGS OF FACT
The City of Key West is designated as an area of critical state concern pursuant to § 380.05(1), Fla. Stat. (2012), and Chapter 28-36, Fla. Admin. Code. Land development regulations adopted by the City of Key West do not become effective until approved by the Department by final order. §§ 380.05(6) and (11), Fla. Stat.
The Ordinance was adopted by the City of Key West on October 17, 2013, and rendered to the Department on November 20, 2013.
The Ordinance amends the City’s land development regulations as follows:
The Ordinance amends Chapter 90 of the City Code of Ordinance entitled “Administration” by amending Section 90-392 and adding a new section 90-398 to authorize the City Planner to issue administrative variances; establish procedures and criteria for variance applications; provide for notice to adjoining property owners; and provide for public hearings and appeals.
The Ordinance amends Chapter 122 entitled “Zoning” by amending Section 122-28 to provide that residential dwelling units may be replaced at their existing location and three-dimensional building envelope in addition to their existing non-conforming density, and to prohibit variances that would increase density or intensity beyond the maximum allowed by the City’s land development regulations.
The Ordinance adds a new subsection (g) to Section 122-32 to allow for the enlargement or expansion of non-conforming structures that are used in a manner authorized by the regulations so long as the existing non-conformity is not increased and no new non-conformity is created.
CONCLUSIONS OF LAW
The Department is required to approve or reject land development regulations that are adopted by any local government in an area of critical state concern. §§ 380.05(6) and (11), Fla. Stat.
“Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. The regulations adopted by the Ordinance are land development regulations.
All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the principles for guiding development for that area. §§ 380.05(6) and (11), Fla. Stat. The Principles for Guiding Development for the City of Key West Area of Critical State Concern are set forth in Rule 28-36.003(1), Fla. Admin. Code (“Principles”).
The Ordinance is consistent with the Principles as a whole and specifically furthers the following Principle in Rule 28-36.003(1), Fla. Admin. Code:
(h) Protection of the public health, safety, welfare, and economy of the City of Key West, and the maintenance of Key West as a unique Florida resource.
The Ordinance is consistent with the City of Key West Comprehensive Plan Future Land Use Element Policy 1-1.5.1 and Objective 1-31.29.
WHEREFORE, IT IS ORDERED that City of Key West Ordinance No. 13-18 is found to be consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern and is hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative Register unless a petition is timely filed as described in the Notice of Administrative Rights below.
DONE AND ORDERED in Tallahassee, Florida.
/s/___________________________
WILLIAM B. KILLINGSWORTH
Director, Division of Community Development
Department of Economic Opportunity
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, CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND 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 OPPORTUNITY 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:
AGENCY CLERK
DEPARTMENT OF ECONOMIC OPPORTUNITY
OFFICE OF GENERAL COUNSEL
107 EAST MADISON STREET, MSC 110
TALLAHASSEE, FLORIDA 32399-4128
FAX NUMBER (850)245-7150
CLERK’S EMAIL: JAMES.BELLFLOWER@DEO.MYFLORIDA.COM
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 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 RULE 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.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order was filed with the undersigned designated Agency Clerk and that true and correct copies were furnished to the persons listed below by the methods indicated this __20___ day of _December_, 2013.
/s/____________________________
James W. Bellflower, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399-4128
By U.S. Mail:
The Honorable Craig Cates
Mayor, City of Key West
3216 Flagler Avenue
Key West, FL 33040
Cheryl Smith, City Clerk
3216 Flagler Avenue
Key West, FL 33040
Donald Leland Craig, AICP
City Planner
3140 Flagler Avenue
Key West, FL 33040
By Hand Delivery or Interagency Mail:
Rebecca Jetton, ACSC Administrator, DEO Tallahassee
