STATE OF
DEPARTMENT OF COMMUNITY AFFAIRS
In re: CITY OF
DEVELOPMENT REGULATIONS
ADOPTED BY ORDINANCE NO. 2007-03
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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. (2006), partially approving and partially 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 the City of
2. On March 2, 2007, the Department received for review City of
3. The purpose of Ord. 2007-03 is to amend the Citys previously existing Land Development Regulations (LDR) applicable to the Interim Comprehensive Plan with revised LDRs specific to the Citys revised Comprehensive Plan as required by § 163.3202, Fla. Stat. (2006). Ord. 2007-03 amends and restates Chapter 9.5 (The Land Development Regulations) of the City of
4. The Ordinance amends Chapter 100 General Provisions; Chapter 101 Administrative Mechanisms; Chapter 102 Development Application Review Procedures; Chapter 103 Zoning Districts; Chapter 104 Specific Use Regulations; Chapter 105 Design District Guidelines; Chapter 106 Natural and Historic Resources Protection; Chapter 107 General Development Standards; Chapter 108 Nonconformities; Chapter 109 Violations, Penalties and Enforcement; Chapter 110 Definitions; and Chapter 111 Fees; of the Citys LDRs. With the exception of the specifically identified portions of Sections 104.01, 106.27 and 106.38, the remaining Chapters are Consistent with the Citys Comprehensive Plan.
5. Section 104.01 Level of Review for Use applicable to (1) an Assisted Living Facility, (2) a Group Home, and (3) Hotels or Motels are inconsistent with the Citys Comprehensive Plan, Objective 1-3.5 Manage Growth Rate within the City, and Policy 1-3.5.4 Residential Building Permit Allocation System. Data and analysis accompanying the above referenced Section 104.01 Level of Review for Use provisions was found insufficient.
6. Section 106.27 Jurisdiction and Delineation includes a Keys Wetland Evaluation Procedure (KWEP) score of 7.0 to identify Red-flag high functional capacity wetland areas is contrary to existing data and analysis identifying a score of 5.5 in the KEYWEP Technical Summary Document for purposes of distinguishing between moderate and high functioning wetlands.
7. Section 106.38 Exemptions related to activities allowed on submerged lands, mangroves, regulated surface waters, wetlands and wetland buffers is inconsistent with the Citys Comprehensive Plan and should further clarify what specific exemption is applicable with regard to the Citys permit application process, approval from the Department of Environmental Protection, or the South Florida Water Management District.
CONCLUSIONS OF LAW
8. 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),
9. The City of
10. Land development regulations include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8),
11. 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. 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.
12. Ord. 2007-03 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.
13. Ord. 2007-03 limited to the specifically identified portions of Sections 104.01, 106.27 and 106.38 is inconsistent with the Citys Comprehensive Plan and inconsistent with the following Principles:
(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.
(k) To provide adequate alternatives for the protection of public safety and welfare in the event of a natural disaster or manmade disaster and for a post disaster reconstruction plan.
(l) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the
14. With the exception of Sections 104.01, 106.27 and 106.38, Or. 2007-03 is not inconsistent with the remaining Principles and is consistent with the Principles for Guiding Development as a whole.
WHEREFORE, IT IS ORDERED that, with the exception of Sections 104.01, 106.27 and 106.38, Ord. 2007-03 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is hereby APPROVED. Specifically identified Sections 104.01, 106.27 and 106.38 are found to be inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and are 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
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CHARLES GAUTHIER, AICP
Director, Division of Community Planning
Division of Community Planning
Department of Community Affairs
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 DEPARTMENTS 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
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,
THE PETITION MUST MEET THE FILING REQUIREMENTS IN SUBSECTION 28-106.104(2),
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402,
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 2nd day of May, 2007.
_______________________________
Paula Ford, Agency Clerk
By
Honorable John Bartus, Mayor
City of
10054-55 Overseas Highway
Cindy Ecklund, City Clerk
City of
10045-55 Overseas Highway
Mike Puto
Acting City Manager
City of
10054-55 Overseas Highway
Jimmy L. Morales, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
