Department of Community Affairs, Division of Community Planning  


  • DCA Final Order No.:   DCA06-OR-007                                                                                                                     

    STATE OF FLORIDA

    DEPARTMENT OF COMMUNITY AFFAIRS

     

    In re:               CITY OF MARATHON SMALL SCALE PLAN

            AMENDMENT ADOPTED BY

            CITY OF MARATHON ORDINANCE

    NO. 2005-22     

    _________________________________________________     

     

    FINAL ORDER

            The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to §§ 163.3187(1)(c), 380.05(6) and (11), Fla. Stat., (2005), approving a small scale plan amendment and land development regulations 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 designated area of critical state concern.

            2.  On December 23, 2005, the Department received for review City of Marathon Ordinance No. 2005-22, which was adopted by the City of Marathon City Commission on December 13, 2005 (“Ord. 2005-22").  Ord. 2005-22 authorizes a small scale comprehensive plan amendment for the purposes of affordable housing as provided under section 163.3187(1)(c)1.e., Fla. Stat..  The amendment will change 1.27 acres designated Mixed Use Commercial, with a density of 10-15 affordable housing dwelling units per acre on the Marathon Land Use Map to Residential High, with a maximum density of 15-25 affordable housing dwelling units per acre.

            3.   Ord. 2005-22 authorizes a Future Land Use Map Amendment from Mixed Use Commercial to Residential High for property located along Overseas Highway at approximately 71st Street Ocean, and legally described as part of Government Lot 1, Section 11, Township 66 South, Range 33 East, Key Vaca, Monroe County, Florida, having a Real Estate Number of 103560-000201. 

            4.  Ord. 2005-22 is consistent with the City’s Comprehensive Plan.

                                                            CONCLUSIONS OF LAW

            6.  The Department is required to approve or reject small scale plan amendments which involve the construction of affordable housing units and land development regulations that are adopted by any local government in an area of critical state concern based upon consistency with the Principles for Guiding Development applicable to Areas of Critical State Concern.  163.3187(1)(c)1.e., Fla. Stat., (2005).

            7.  The City of Marathon is an Area of Critical State Concern.  § 380.05, Fla. Stat. (2005) and Rule 28-36.001, Fla. Admin. Code.

            8.  “Local comprehensive plan” means any or all local comprehensive plans or elements or portions thereof prepared, adopted, or amended pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, as amended.  § 380.031(10), Fla. Stat. (2005).  Ord. 2005-22 adopts an amendment to the local comprehensive plan.

            9.  “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. 2005-22 are land development regulations. 

            10.  All small scale amendments to the local comprehensive plan adopted within an area of critical state concern and 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 the particular area (the “Principles”).  § 380.05(6), 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 for the City of Marathon Area of Critical State Concern are set forth in Rule 28-36.003(1), Fla. Admin. Code. 

            11.  Ord. 2005-22 promotes and furthers the following Principles in Rule 28-36.003(1):

     

    (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.

    (j) To make available adequate affordable housing for all sectors of the population of the Florida Keys.

    (l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource.

            12.  Ord. 2005-22 is not inconsistent with the remaining Principles.  Ord. 2005-22 is consistent with the Principles for Guiding Development as a whole.   

            WHEREFORE, IT IS ORDERED that Ord. 2005-22 is found to be consistent with the Principles for Guiding Development of the City of Marathon Are 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.

     

                                                                                            _____________________________________

    VALERIE J. HUBBARD, Director                                                      Division of Community Planning

                                                                                            Department of Community Affairs

                                                                                            2555 Shumard Oak Boulevard

                                                                                            Tallahassee, Florida 32399-2100

     

    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 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.

            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 has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below by the method indicated this 8th 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

     

     

     

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