Department of Community Affairs, Office of Community Services  


  • DCA Final Order No.: DCA06-OR-123

    STATE OF FLORIDA

    DEPARTMENT OF COMMUNITY AFFAIRS

     

    In re:       MONROE COUNTY LAND DEVELOPMENT REGULATIONS ADOPTED BY MONROE COUNTY

    ORDINANCE NO. 008-2006

    ___________________________________________/

    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. (2005), 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 April 6, 2006, the Department received for review Monroe County Ordinance No. 008-2006 (“Ord. 008-2006”).

    3. The final order for this Ordinance must be signed by June 2, 2006.

    4. The Ordinance deletes requirements for the preparation of the Habitat Evaluation Index for properties containing hammock, requires an existing conditions report, vegetation survey, and grants of conservation easements, and limits clearing of native upland vegetation dependent on the tier system designation.

    5. The Ordinance proposes the deletion of Section 9-5.342. Section 9-5.342 is based on Monroe County’s Comprehensive Plan Policy 101.4.22 and establishes that when twenty percent of the dominant canopy plants are palms, the hammock is classified as a Palm Hammock and limited to ten percent clearing.

    6. The criteria that establishes when a Palm Hammock is classified as a Palm Hammock is not found in any other regulation, and therefore, deletion of Section 9-5.342 from Monroe County’s land development regulations is not consistent with the 2010 Monroe County Comprehensive Plan.

    7. All other elements of the Ordinance 008-2006 are consistent with the 2010 Monroe County Comprehensive Plan.

    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 The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern.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), Fla. Stat., and                      § 380.0552(9), Fla. Stat. (2005).

    9. Monroe County is a local government within the Florida Keys Area of Critical State Concern. § 380.0552, Fla. Stat. (2005) and Rule 28-29.002 (superseding Chapter 27F-8), Fla. Admin. Code.

    10. “Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. (2005). The regulations adopted by Ord. 008-2006 are land development regulations.

    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), 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.

    12. Ord. 008-2006 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.

    (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).

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

    (l)   To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource.

    13. Deletion of Section 9-5.342 from Monroe County’s land development regulations is not consistent with the 2010 Monroe County Comprehensive Plan.

    14. With the exception of the proposed deletion of Section 9-5.342, Ord. 008-2006 is consistent with the Principles for Guiding Development as a whole.

    WHEREFORE, IT IS ORDERED that all elements of Ord. 008-2006, except for the deletion of Section 9-5.342 from Monroe County’s land development regulations, are found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and are hereby APPROVED. The deletion of Section 9-5.342 from Monroe County’s land development regulations is not consistent with the 2010 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.

    _______________________________________

    TRACY D. SUBER

    State Planning Administrator

    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 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 120.56, 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.

    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 5th day of June, 2006.

    ___________________________________

    Paula Ford, Agency Clerk

    By U.S. Mail:

    Honorable Charles McCoy

    Mayor of Monroe County

    500 Whitehead Street, Suite 102

    Key West, Florida 33040

     

    Danny L. Kolhage

    Clerk to the Board of County Commissioners

    500 Whitehead Street

    Key West, Florida 33040

     

    Aref Joulani

    Acting Director

    Planning and Environmental Resources

    2798 Overseas Highway, Suite 400

    Marathon, Florida 33050

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