DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order, DEO-14-008
In re:A LAND DEVELOPMENT REGULATION
ADOPTED BY THE CITY OF KEY WEST,
FLORIDA, ORDINANCE NO.13-19
___________________________________________
FINAL ORDER APPROVING IN PART AND
REJECTING IN PART KEY WEST ORDINANCE NO. 13-19
The Department of Economic Opportunity (“Department”) hereby issues its Final Order, pursuant to §§ 380.05(6) and (11), Fla. Stat., approving in part and rejecting in part the land development regulations adopted by City of Key West Ordinance No. 13-19 (the “Ordinance”).
FINDINGS OF FACT
The City of Key West is designated pursuant to § 380.05(1), Fla. Stat., and Chapter 28-36, Fla. Admin. Code, as an area of critical state concern. 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 November 7, 2013, and rendered to the Department on December 9, 2013.
The Ordinance updates definitions and provisions relating to the building permit allocation system (“BPAS”) in the City Code to reflect recent updates to the City’s comprehensive plan that gives the City 91 residential building permit allocations annually and 910 allocations over a ten-year horizon.
The Department approves the amendments to the City’s land development regulations adopted by the Ordinance except for the following amendments, which are rejected:
Section 86-9, definition of “detached habitable space,” allows a variance but does not include variance criteria other than height.
Deletion of definition of “hotel” in Section 86-9 (Ordinance page 32) – the deletion would leave the City with no definition that identifies the size of a hotel room. The existing definition must be retained.
Section 86-9, definition of “Single Room Occupancy (SRO)” defines an SRO as a multi-room or multi-floor facility instead of as a single room.
Deletion of definition of “Accessory units and single room occupancy” in Section 108-986 – the definition appropriately defines a single room occupancy as a single room and must be retained.
Section 108-991, “Development not affected by article,” subsection (1), refers the reader to the definitions in Section 86-9 for types of residential construction determined to be affected and not affected by the BPAS, but many of the definitions do not include this information.
Section 108-991, “Development not affected by this article,” subsection (3) exempting public/governmental uses, facilities and services from the City’s BPAS, would exempt publicly-owned affordable housing from the BPAS.
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. (2012).
“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 subsection 28-36.003(1), Fla. Admin. Code.
The portions of the Ordinance that are approved by this Final Order are consistent with the Principles for Guiding Development as a whole, and specifically further the following Principles:
(a)Strengthen local government capabilities for managing land use and development;
(c)Minimize the adverse impacts of development of the quality of water in and around the City of Key West and throughout the Florida Keys;
(e)Protection of the historical heritage of Key West and the Key West Historical Preservation District;
(f)Protection of the value, efficiency, cost-effectiveness and amortized life of existing and proposed major public investments, including:
1. The Florida Keys Aqueduct and water supply facilities,
2. Sewage collection and disposal facilities,
3. Solid waste collection and disposal facilities,
4. Key West Naval Air Station,
5. The maintenance and expansion of transportation facilities, and
6. Other utilities, as appropriate;
(g)Minimize the adverse impacts of proposed public investments on the natural and environmental resources of the City of Key West; and
(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 portions of the Ordinance approved by this Final Order are consistent with Policies 1-1.16.3 and 1-1.1.7 and Objective 1-1.9 of the City of Key West Comprehensive Plan.
The portions of the Ordinance rejected by this Final Order are inconsistent with Principles (a), (f)5., and (h) in subsection 28-36.003(1), Fla. Admin. Code, and are inconsistent with Policies 1-1.16.3 and 1-1.1.7 and Objective 1-1.9 of the City of Key West Comprehensive Plan.
WHEREFORE, IT IS ORDERED that:
A.The portions of City of Key West Ordinance No. 13-19 identified in paragraph 4., subsections a. through f. above, are found to be inconsistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern and are hereby REJECTED.
B.All other portions of City of Key West Ordinance No. 13-19 are found to be consistent with the Principles for Guiding Development for the City of Key West Area of Critical State Concern and are 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
EMAIL: JAMES.BELLFLOWER@DEO.MYFLORIDA.COM
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 was filed with the undersigned designated Agency Clerk, and that true and correct copies were furnished to the persons listed below by the method indicated this 5 day of February, 2014.
/s/___________________________
James W. Bellflower, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399-4128
Telephone: (850)245-7150
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
