Department of Community Affairs, Division of Community Planning  


  • DCA Final Order No.: DCA08-OR-35

    DCA Order No. DCA08-OR-35

    STATE OF FLORIDA

    DEPARTMENT OF COMMUNITY AFFAIRS

    In re:       A LAND DEVELOPMENT REGULATION

                    ADOPTED BY ISLAMORADA, VILLAGE OF ISLANDS

                    ORDINANCE NO. 07-29

    __________________________________________/

                                    FINAL ORDER

    The Department of Community Affairs (the “Department”) hereby issues its Final Order, pursuant to §§ 380.05(6), Florida Statutes, and § 380.0552(9), Florida Statutes (2007), 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 Florida Keys Area is a statutorily designated area of critical state concern, and Islamorada, Village of Islands is a local government within the Florida Keys Area.

    2.     On December 4, 2007, the Department received for review Islamorada, Village of Islands Ordinance No. 07-29 (“Ord. No. 07-29”) adopted by the Village on November 29, 2007.

    3.     Ord. No. 07-29 amends Chapter 30 Land Development Regulations, Article IV Administrative Procedures, Division 11 Building Permit Allocation System regarding the Nonresidential and Residential Unit Allocation. The purpose of Ord. No. 07-29 is to adjust the existing ratio of building allocations from 50% market rate housing and 50% affordable housing to 80% market rate housing and 20% affordable housing authorizing an annual allocation of 22 units to market rate development and a minimum of 6 units to affordable housing per year.  Ordinance No. 07-29 also amends the Village code to reflect a previously approved comprehensive plan amendment re-establishing the 102.4 square foot ratio resulting in a commercial space square foot allocation of 2,868 square feet (28 units x 102.4 sq/ft) per year.

    CONCLUSIONS OF LAW

    4.     The Department is required to approve or reject land development regulations or portions thereof that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern.  §§ 380.05(6), Florida Statutes, and § 380.0552(9), Florida Statutes(2007).

    5.     Islamorada, Village of Islands is a local government within the Florida Keys Area of Critical State Concern.  § 380.0552, Florida Statutes (2007), and Rule 28-29.002 (superseding Chapter 27F-8), Florida Administrative Code.

    6.     “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land.  § 380.031(8), Florida Statutes (2007).  The regulations adopted by Ord. 07-29 are land development regulations.

    7.     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. (2007).   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.

    8.     Ord. 07-29 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.

            (d) To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development.

    9.     Ord. 07-29 is not inconsistent with the remaining Principles.  Ord. 07-29 is consistent with the Principles for Guiding Development as a whole.

    WHEREFORE, IT IS ORDERED that Ord. 07-29 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area 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.

    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.

                                                                    /s/________________________________

                                                                            CHARLES GAUTHIER, AICP

                                                                            Director, Division of Community Planning

                                                                            Department of Community Affairs

                                                                            2555 Shumard Oak Boulevard

                                                                            Tallahassee, Florida 32399-2100

    CERTIFICATE OF FILING AND SERVICE

    I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below by the method indicated this 25th day of January, 2008.

                                                                                    /s/__________________________

                                                                                            Paula Ford, Agency Clerk

    By U.S. Mail:

    Honorable Dave Boerner, Mayor

    Islamorada, Village of Islands

    Post Office Box 568

    Islamorada, FL 33036

     

    Beverly Raddatz, Village Clerk

    Islamorada, Village of Islands

    Post Office Box 568

    Islamorada, FL 33036

     

    Nina Boniske, Esq.

    James White, Esq.

    Weiss Serota Helfman Pastoriza

       Guedes Cole & Boniske, P.A.

    3107 Stirling Drive, Suite 300

    Fort Lauderdale, FL   33312-8500

     

    By Hand Delivery or Interagency Mail:

    Rebecca Jetton, ACSC Administrator

    Richard E. Shine, Assistant General Counsel

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