DCA Final Order No.: DCA08-OR-044A
In Re: MONROE COUNTY LAND
DEVELOPMENT REGULATIONS
ADOPTED BY ORDINANCE NO. 043-2007
DOAH No. 08-1601GM
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AMENDED FINAL ORDER
The Department of Community Affairs (the Department) hereby issues its Amended Final Order, pursuant to Section 380.05(6), Florida Statutes, and Section 380.0552(9), Florida Statutes (2008), 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 December 17, 2007, the Department received for review Monroe County Ordinance No. 043-2007, adopted by Monroe County on November 14, 2007.
3. On February 15, 2008, the Department issued Order No. DCA08-OR-044 rejecting Ordinance No. 043-2007 as inconsistent with the Principles for Guiding Development, Section 380.0552(7), Florida Statutes.
4. On March 7, 2008, a Petition for Formal Administrative Proceeding was filed at the Division of Administrative Hearings by Petitioner EL EL SI, LLC, in Case No. 08-1601GM.
5. Thereafter the Department and the Petitioners participated in settlement negotiations to resolve the consistency issue. On March 9, 2009, the Department filed a Joint Motion to Cancel Final Hearing and Relinquish Jurisdiction. On March 10, 2009, the Division of Administrative Hearings issued an Order Closing File and relinquishing Jurisdiction to the Department.
6. The purpose of this Ordinance is to amend Chapter 9.5-268 of the Land Development Regulations to allow transient residential units that are legally, lawfully established to replace, redevelop or substantially improve those units on a one-for-one basis regardless of the density upon conformance with the open space, height, set back and water quality requirements found in the Monroe County Land Development Regulations.
7. The Department has reviewed the Ordinance for consistency with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 2010 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 The Department is required to approve or reject land development regulations that are enacted, amended, or rescinded by any local government in the Florida Keys Area of Critical State Concern. Section 380.05(6), Florida Statutes, and Section 380.0552(9), Florida Statutes (2008).
9. Monroe County is a local government within the Florida Keys Area of Critical State Concern. Section 380.0552, Florida Statutes (2008) and Rule 28-29.002 (superseding Chapter 27F-8), F.A.C.
10. Land development regulations include local zoning, subdivision, building, and other regulations controlling the development of land. Section 380.031(8), Florida Statutes (2008). The regulations adopted by Ordinance No. 043-2007 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 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.
12. Additionally, Section 163.3194(1)(b), Florida Statutes, requires that all land development regulations must be consistent with the local governments adopted comprehensive plan.
13. Ordinance No. 043-2007, which allows transient residential units to have a vested right to replace or substantially improve those units on a one-for-one basis upon conformance with the open space, height, set back and water quality requirements found in the Monroe County Land Development Regulations is consistent with the following Principles:
Principle (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.
Principle (d): To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development.
Principle (k): To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for post disaster reconstruction plan.
14. Ordinance No. 043-2007 is neutral in effect on the remaining Principles.
15. Ordinance No. 043-2007 is consistent with the following provisions of the 2010 Monroe County Comprehensive Plan:
Policy 101.4.23
Notwithstanding the density limitation set forth in Policy 101.4.21, land upon which a legally-established residential dwelling unit exists shall be entitled to a density of one dwelling unit per each such unit. Such legally-established dwelling unit shall not be considered as non-conforming as to the density provisions of Policy 101.4.21 and the Monroe County Code.
16. Ordinance No. 043-2007 is consistent 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. 043-2007 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is found to be consistent with the Monroe County Comprehensive Plan, and is hereby APPROVED.
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, F.A.C. 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, F.A.C. 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), F.A.C. IF AN INFORMAL PROCEEDING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH RULE 28-106.301, F.A.C. IF A FORMAL HEARING IS REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH SUBSECTION 28-106.201(2), F.A.C.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY RULE 28-106.402, F.A.C. 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 15th day of June, 2009.
__________________________
Paula Ford, Agency Clerk
By U.S. Mail:
Honorable George Nugent
Mayor of Monroe County
25 Ships Way
Big Pine Key, Florida 33043
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Andrew Trivette
Growth Management Director
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
James S. Morris, Esq.
Storch, Morris & Harris, L.L.C.
420 S. Nova Road
Daytona Beach, Florida 32114
