STATE OF
DEPARTMENT OF COMMUNITY AFFAIRS
In re: CITY OF
DEVELOPMENT REGULATIONS
ADOPTED BY ORDINANCE NO. 2007-04
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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), 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. 2007-04 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. 2007-04 amends the entire City Land Use District Map to provide consistency with the Future Land Use Map, and to reflect the zoning designations established by the Citys revised Land Development Regulations.
4. Ord. 2007-04 is inconsistent with the Citys 2010 Comprehensive Plan, and the following Future Land Use Map (FLUM) designations as noted below:
Proposed Land Use District Map
Panel 1: Ord. 2007-04 is inconsistent with the Comprehensive Plan or FLUM.
1. Land Use District (LUD): Residential
FLUM: Conservation (water/submerged lands)
2. LUD: Mixed Use
FLUM: N/A (water/submerged lands)
3. LUD: Residential Medium
FLUM: Conservation
4. LUD: Public
FLUM: Mixed Use Commercial
5. LUD: Mixed Use
FLUM: Residential Medium
6. LUD: Residential Conservation
FLUM: Recreation
Multiple locations of submerged lands are included in the zoning designations
Panel 2: Ord. 2007-04 is inconsistent with the Comprehensive Plan or FLUM.
6. LUD: Residential Conservation (also identified in Panel 1)
FLUM: Recreation
Multiple locations of submerged lands are included in the zoning designations
Panel 3: There are no inconsistencies with the Comprehensive Plan or FLUM.
Panel 4: Ord. 2007-04 is inconsistent with the Comprehensive Plan or FLUM.
7. FLUD: Residential Conservation
FLUM: Conservation
Panel 5: Ord. 2007-04 is inconsistent with the Comprehensive Plan and/or FLUM.
7. FLUD: Residential Conservation (also identified in Panel 4)
FLUM: Conservation
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),
6. The City of
7. Land development regulations include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8),
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 § 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.
9. Ord. 2007-04 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.
(k) To provide adequate alternatives for the protection of public safety and welfare in the event of a natural 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
10. Ord. 2007-04 is neutral in effect on the remaining Principles.
11. Ord. 2007-04 is inconsistent with the Citys Comprehensive Plan.
WHEREFORE, IT IS ORDERED that Ord. 2007-04 is found to be inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, 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
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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.
