Department of Community Affairs, Division of Community Planning  


  • DCA Final Order No.: DCA08-OR-044

    STATE OF FLORIDA

    DEPARTMENT OF COMMUNITY AFFAIRS

    In re:       MONROE COUNTY LAND

                    DEVELOPMENT REGULATIONS

                    ADOPTED BY ORDINANCE NO. 043-2007

    ___________________________________________/

                                    FINAL ORDER

    The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to § 380.05(6), Fla. Stat., and § 380.0552(9), Fla. Stat. (2007), rejecting 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 Monroe County is a local government within the Florida Keys Area.

    2.     On December 17, 2007, the Department received for review Monroe County Ordinance No. 043-2007, adopted by Monroe County on November 14, 2007.

    3.     The purpose of this Ordinance is to amend Chapter 9.5 of the Land Development Regulations to include “transient residential units’ that are legally, lawfully established to have a vested right to replace or substantially improve those units on a one-for-one basis regardless of the density.

    4.     The Department has reviewed the Ordinance for consistency with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 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     The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern.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), Fla. Stat., and § 380.0552(9), Fla. Stat. (2007).

    6.     Monroe County is a local government within the Florida Keys Area of Critical State Concern. § 380.0552, Fla. Stat. (2007) and Rule 28-29.002 (superseding Chapter 27F-8), Florida Administrative Code.

    7.     “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2007). The regulations adopted by Ordinance No. 043-2007 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     All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the “Principles”) as set forth in section 380.0552(7),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.     Additionally, Section 163.3194(1)(b), Florida Statutes (F.S.), requires that all land development regulations must be consistent with the local government’s adopted comprehensive plan.

    10.   Ordinance No. 043-2007, which allows transient residential units to have a vested right to replace or substantially improve those units on a one-for-one basis regardless of the density is not consistent with the following Principles:

            Principle (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.

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

            Principle (k): To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for post disaster reconstruction plan.

    11.   Ordinance No. 043-2007 is neutral in effect on the remaining Principles.

    12.   Ordinance No. 043-2007 is inconsistent with the following provisions of the 2010 Monroe County Comprehensive Plan that limit the vesting of density to legally established residential dwelling units and transportation impacts:

            Policy 101.4.23 Notwithstanding the density limitation set forth in Policy 101.4.21, land upon which a legally-established residential dwelling unit exists shall be entitled to a density of one dwelling unit per each such unit. Such legally-established dwelling unit shall not be considered as non-conforming as to the density provisions of Policy 101.4.21 and the Monroe County Code.

    13.   The Ordinance is inconsistent with the following Comprehensive Plan Elements:

            Objective 216.1

            Monroe County shall reduce hurricane evacuation clearance time to 24 hours by the year 2010.

            Objective 217.3

            By January 4, 1997, Monroe County shall adopt Land Development Regulations which direct future growth away from the Coastal High Hazard Area (CHHA).

            Policy 301.1.2

            For US-1, Monroe County hereby adopts a level of service (LOS) standard of C based on the methodology developed by the US-1 LOS Task Force and adopted by the Board of County Commissioners in August 1991, for analyzing the LOS on US-1 in Monroe County. This methodology replaces a peak hour volume standard for US-1. The level of service on US-1 shall be maintained within (5%) of LOS C.

            Objective 301.2

            Ensure that all roads have sufficient capacity to serve development at the adopted LOS standards concurrent with the impact of said development.

    13.   Ordinance No. 043-2007 is inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and Monroe County’s Comprehensive Plan.

    WHEREFORE, IT IS ORDERED that Ordinance No. 043-2007 is found to be inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is found to be inconsistent with the Monroe County Comprehensive Plan, and is hereby REJECTED.

    DONE AND ORDERED in Tallahassee, Florida.

                                                                                                                                    ________________________________

                                                                                                                                    CHARLES GAUTHIER, AICP

                                                                                                                                    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 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.

    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 15th day of February, 2008.

                                                                    ____________________________

                                                                    Paula Ford, Agency Clerk

    By U.S. Mail:

    Honorable Charles “Sonny” McCoy

    Mayor of Monroe County

    Florida Keys Marathon Airport

    9400 Overseas Highway, Suite 210

    Key West, Florida 33050

     

    Danny L. Kolhage

    Clerk to the Board of County Commissioners

    500 Whitehead Street

    Key West, Florida 33040

     

    Andrew Trivette

    Growth Management Director

    2798 Overseas Highway, Suite 400

    Marathon, Florida 33050

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