DEPARTMENT OF ECONOMIC OPPORTUNITY
Division of Community Development
Final Order, DEO-13-092
In re:A LAND DEVELOPMENT REGULATION
ADOPTED BY ISLAMORADA, VILLAGE OF
ISLANDS, FLORIDA, ORDINANCE NO. 13-14
______________________________________________
FINAL ORDER
REJECTING ISLAMORADA ORDINANCE NO. 13-14
The Department of Economic Opportunity (“Department”) hereby issues its Final Order, pursuant to §§ 380.05(6) and 380.0552(9), Fla. Stat. (2012), rejecting land development regulations adopted by Islamorada, Village of Islands, Florida, Ordinance No. 13-14 (the “Ordinance”).
FINDINGS OF FACT
The Florida Keys Area is designated by § 380.0552, Fla. Stat., as an area of critical state concern. Islamorada, Village of Islands, is a local government within the Florida Keys Area.
The Ordinance was adopted by Islamorada, Village of Islands, on July 11, 2013, and rendered to the Department on July 26, 2013.
The existing land development regulations allow, within the 20-foot shoreline setback from an altered shoreline, outdoor dining areas on water-dependent structures in connection with any lawfully established restaurant, café, bar, or similar establishment that sells food and beverages for on-site consumption. The Ordinance amends the Village Code of Ordinances, Chapter 30 “Land Development Regulations,” Article VI “Specific Use Restrictions,” Division 9 “Outdoor Seating Areas,” and Article VI “Environmental Regulations,” Division 2 “Docks and Shorelines” to allow covered and uncovered outdoor seating areas (not limited to outdoor dining areas) on water-dependent structures in the shoreline setback for both altered and unaltered shorelines in connection with any lawfully established restaurant, café, bar, or similar establishment that sells food and beverages for on-site consumption. The Ordinance also deletes the buffer yard requirements for outdoor seating areas in the shoreline setback.
The Ordinance is not consistent with the Islamorada, Village of Islands, Comprehensive Plan as described below:
(a)Special Approval; Water Quality Monitoring. The Ordinance deletes the existing requirement in Section 1402(b)(3) of the Land Development Code that outdoor seating areas on water-dependent structures that serve commercial uses obtain a special approval from the Planning Director. The special approval requires a 5-year water quality monitoring plan for development of such accessory uses. The Ordinance is inconsistent with comprehensive plan Policy 5-1.2.13 which requires that such uses be authorized by a special approval in the form of a conditional use permit and requires a 5-year water quality monitoring plan for waterfront dining areas on water-dependent structures in the shoreline setback of an altered shoreline. The Ordinance is also inconsistent with comprehensive plan Policy 5-1.1.3 which requires that the Village prevent degradation of water quality, and comprehensive plan Policy 5-1.2.12 which requires that shoreline setback policies protect water quality through assimilation and filtrative uptake of pollutants by protected natural shoreline vegetation. In addition, the Ordinance creates an internal inconsistency in the Land Development Code by conflicting with Section 30-1554, which also requires that such accessory uses receive special approval from the Planning Director.
(b)Unaltered Shorelines. The special approval process described above allows outdoor dining in the shoreline setback from an altered shoreline. The Ordinance allows covered and uncovered outdoor seating in the shoreline setback from an unaltered shoreline. The Ordinance is inconsistent with comprehensive plan Policy 5-1.2.12 that establishes a 50-foot shoreline setback from an unaltered shoreline and requires that shoreline setback policies protect water quality through assimilation and filtrative uptake of pollutants by protected natural shoreline vegetation, comprehensive plan Policy 5-1.2.13 which only allows outdoor dining in a disturbed area of an altered shoreline, and comprehensive plan Policy 5-1.1.3 that requires the Village to prevent degradation of water quality.
(c)Minimum Distance From Altered Shoreline. The Ordinance allows covered and uncovered seating areas within the shoreline setback on an altered shoreline with no minimum distance from the shoreline. The Ordinance is inconsistent with comprehensive plan Policy 5-1.2.12 which requires that accessory structures in the shoreline setback on altered shorelines (other than docks, piers, decks, walkways, access ways, and utility pilings, be elevated and set back a minimum of 10 feet from the mean high water line.
(d)Buffer Yards – New Accessory Uses. Section 30-1402(b)(3) of the Land Development Code requires buffer yards for new accessory uses on water-dependent structures in the shoreline setback of both altered shorelines and unaltered shorelines to ensure compatibility with adjacent residential uses. The buffer yards also provide stormwater filtration in the shoreline setback. The Ordinance is inconsistent with comprehensive plan Policy 5-1.2.13(3) which requires that buffer yards are maintained, comprehensive plan Policy 5-1.1.3 which requires that the Village prevent the degradation of water quality, and comprehensive plan Policy 5-1.2.12 which requires that the Village protect water quality through assimilation and filtrative uptake of pollutants by protected natural shoreline vegetation.
(e)Buffer Yards – Existing Accessory Uses. Section 30-4203(b) of the Land Development Code requires the addition of buffer yards for all outdoor seating areas that existed on January 25, 2001, the date of adoption of the comprehensive plan, and that were adjacent to existing residential uses or residential zoned districts to ensure compatibility with adjacent existing residential uses. These buffer yards also provide stormwater filtration within the shoreline setback. The Ordinance deletes the buffer yard requirement for outdoor seating areas that existed on or before January 25, 2001. The deletion of the buffer yard requirement is inconsistent with comprehensive plan Policy 5-1.2.13(3) which requires that buffer yards are maintained, Policy 5-1.1.3 which requires that the Village prevent the degradation of water quality, and with Policy 5-1.2.12 which requires that the Village protect water quality through assimilation and filtrative uptake of pollutants by protected natural shoreline vegetation.
(f)Sea Level Rise. The Ordinance allows accessory uses in the shoreline setback on an altered or unaltered shoreline with no minimum buffer between the development and the shoreline. The Ordinance is inconsistent with comprehensive plan Policy 1-2.12(4) which requires the long term protection of structures from the effects of sea level rise.
CONCLUSIONS OF LAW
The Department is required to approve or reject land development regulations that are adopted by any local government in an area of critical state concern. §§ 380.05(6) and (11) and § 380.0552(9), Fla. Stat.
“Land development regulations” include local zoning, subdivision, building, and other regulations controlling the development of land. § 380.031(8), Fla. Stat. The regulations adopted by the Ordinance are land development regulations.
All land development regulations enacted, amended, or rescinded within an area of critical state concern must be consistent with the principles for guiding development for that area. §§ 380.05(6) and 380.0552(9), Fla. Stat. The Principles for Guiding Development for the Florida Keys Area of Critical State Concern are set forth in § 380.0552(7), Fla. Stat.
The Ordinance is not consistent with the Islamorada, Village of Islands, Comprehensive Plan as described in paragraph 4 of this Final Order.
The Ordinance is not consistent with the Principles for Guiding Development in section 380.0552(7), Fla. Stat., as a whole, and is specifically inconsistent the following Principles:
(a) Strengthening local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuing the area of critical state concern designation.
(b) Protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat.
(c) Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat.
(e) Limiting the adverse impacts of development on the quality of water throughout the Florida Keys.
(n) Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the Florida Keys as a unique Florida resource.
WHEREFORE, IT IS ORDERED that Islamorada, Village of Islands, the Department finds that Ordinance No. 13-14 is not consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern and is hereby REJECTED.
This Order becomes effective 21 days after publication in the Florida Administrative Register unless a petition is timely filed as described in the Notice of Administrative Rights below.
DONE AND ORDERED in Tallahassee, Florida.
/s/___________________________
William B. Killingsworth, Director
Division of Community Development
Department of Economic Opportunity
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 120.569 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, CONDUCT CROSS-EXAMINATION AND SUBMIT REBUTTAL EVIDENCE, SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND 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 ECONOMIC OPPORTUNITY 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:
AGENCY CLERK
DEPARTMENT OF ECONOMIC OPPORTUNITY
OFFICE OF THE GENERAL COUNSEL
107 EAST MADISON STREET, MSC 110
TALLAHASSEE, FLORIDA 32399-4128
FAX 1(850)921-3230
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 following persons by the methods indicated this 25 day of September, 2013.
/s/___________________________
James W. Bellflower, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399-4128
By U.S. Mail:
Honorable Ken Philipson
Mayor, Islamorada, Village of Islands
86800 Overseas Highway
Islamorada, FL 33036
Edward Koconis, Director
Planning and Development Services
Islamorada, Village of Islands
86800 Overseas Highway
Islamorada, FL 33036
Ariana S. Lawson
Village Clerk
Islamorada, Village of Islands
86800 Overseas Highway
Islamorada, FL 33036
By Hand Delivery or Interagency Mail:
Rebecca Jetton, ACSC Administrator, DEO Tallahassee
