In re: MONROE COUNTY LAND
DEVELOPMENT REGULATIONS
ADOPTED BY MONROE COUNTY
ORDINANCE NO. 002-2008
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FINAL ORDER
The Department of Community Affairs (the Department) hereby issues its Final Order, pursuant to Section 380.05(6), Florida Statutes, and Section 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 Monroe County is a local government within the Florida Keys Area.
2. On February 13, 2008 the Department received for review Monroe County Ordinance No. 002-2008 (Ord. 002-2008), adopted by Monroe County on January 16, 2008.
3. The purpose of the Ordinance is to adopt amendments to the text of the Monroe County Code to provide incentives to owners of mobile home parks to maintain the property as affordable housing.
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. Section 380.05(6), Florida Statutes, and Section 380.0552(9), Florida Statutes (2007).
5. Monroe County is a local government within the Florida Keys Area of Critical State Concern. Section 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. Section 380.031(8), Florida Statutes (2007). The regulations adopted by Ord. 002-2008 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 All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the Principles for Guiding Development (the Principles) as set forth in Section 380.0552(7), Florida Statutes, See Rathkamp v. Department of Community Affairs, 21 F.A.L.R. 1902 (Dec. 4, 1998), affd, 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. 002-2008 allows for the transfer of market rate Rate of Growth Ordinance (ROGO) exempt allocations off-site to receiving properties in exchange for maintaining an equal or greater number of deed restricted affordable dwelling units within Monroe County with the sender site either donated or sold to Monroe County, or appropriately deed-restricted. Monroe County would assign affordable housing ROGO allocations from the ROGO pool to the mobile home park in exchange for the underlying land or appropriate long-term deed-restriction.
9. Ord. 002-2008 fails to properly address the transfer of ROGO exempt units and does not limit the receiver sites to Tier III or IIIA properties identified in Section 9.5-120.3, Land Development Regulations, to ensure that no clearing of habitat is required. Ord. 002-2008 fails limit the receiver sites of the ROGO exempt units to areas not located within a Velocity Zone. Ord 002-2008 is inconsistent with 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.
(b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat.
(c) To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat.
(i) To limit the adverse impacts of public investments on the environmental resources of the Florida Keys, protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource.
10. Ord. 002-2008 is inconsistent with the following provisions of the 2010 Monroe County Comprehensive Plan:
Policy 101.5.8
Policy 101.5.8 states Monroe County may develop a program, called Transfer of ROGO Exemption (TRE), that would allow for the transfer off-site of dwelling units, hotel rooms, campground/recreational vehicle spaces and/or mobile homes to another site in the same ROGO sub-area, provided that they are lawfully existing and can be accounted for in the Countys hurricane evacuation model. In addition, the receiver site shall be located within a Tier III area outside a designated Special Protection Area and for a receiver site on Big Pine Key and No Name Key; the sending site shall also be located on one of those two islands.
Policy 101.14.1
Monroe County shall discourage developments proposed within the Coastal High Hazard
Area (CHHA).
Objective 102.8
Monroe County shall take actions to discourage private development in areas designated as units of the Coastal Barrier Resources System.
Policy 102.8.1
Monroe County shall discourage developments which are proposed in units of Coastal
Barrier Resources System (CBRS)
11. Ord. 002-2008 is inconsistent with Policy 205.2.2 because it fails to restrict transfer of development to Tier III in order to discourage the clearing of habitat.
Policy 205.2.2
Monroe County shall discourage developments in Tier I and within tropical hardwood hammock or pinelands of one acre or more in area to protect areas of native upland vegetation.
12. Ord. 002-2008 is inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and Monroe Countys Comprehensive Plan.
WHEREFORE, IT IS ORDERED that Ordinance No. 002-2008 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.
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.
________________________________
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 AGENCYS 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 DEPARTMENTS 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 DEPARTMENTS 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 11th day of April, 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
Director
Planning and Environmental Resources
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
