Ordinance 002-20141
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ORDINANCE NO. 002 -2014
AN ORDINANCE BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS AMENDING CHAPTER 118
ENVIRONMENTAL PROTECTION; CREATING SECTION
118 -13 PROVIDING FOR COORDINATION WITH THE
UNITED STATES FISH AND WILDLIFE SERVICE FOR
DEVELOPMENT PERMIT APPLICATIONS FOR
PARCELS LOCATED IN CRITICAL HABITAT OR
DESIGNATED POTENTIALLY SUITABLE HABITAT OF
SPECIES NOT INCLUDED IN THE PERMIT REFERRAL
PROCESS; PROVIDING FOR REPEAL OF CONFLICTING
PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE
STATE LAND PLANNING AGENCY AND THE
SECRETARY OF STATE; PROVIDING FOR
CODIFICATION; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the United States Congress enacted the Endangered Species Act of 1973 (P.
Law 93 -205 116 U.S. C. Sec. 1531 et. seq.} (the Act) to provide a means whereby the
ecosystems upon which endangered species and threatened species depend may be conserved,
and to provide a program for the conservation of such endangered species and threatened
species; and
WHEREAS, Section 4 of the Act provides for the listing of species; and
WHEREAS, Section 7 of the Act requires interagency cooperation and consultation
about agency action and its effect on endangered species; and
WHEREAS, Section 10 of the Act requires consultation with the U.S. Fish and Wildlife
Service (FWS) for the incidental take of listed species; and
WHEREAS, the FWS issued its April 30, 2010 Biological Opinion (BO) for the Federal
Emergency Management Agency in connection with the litigation Florida Key Deer et al. v.
Fugate et al., 2011 U.S. Dist. LEXIS 150031 (S.D. Fla. Dec. 30, 2011); and
WHEREAS, Monroe County was required to accept the terms of the BO and to
incorporate the terms into its land development regulations in order to continue participating in
the National Flood Insurance Program; and
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43 WHEREAS, the FWS designated Critical Habitat for the Cape Sable thoroughwort in
44 January 2014 and proposes to add additional species to the endangered and threatened species
45 list for the Florida Keys that are not included in the BO, nor addressed under Section 122 -8 of
46 the Monroe County Land Development Code; and
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48 WHEREAS, property owners have an obligation to comply with the Act; and
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50 WHEREAS, Monroe County has an obligation to comply with the Act; and
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52 WHEREAS, this Ordinance is being adopted to provide owners of properties located in
53 Critical Habitat and potentially suitable habitat as designated by FWS for listed species not
54 included in the BO, nor addressed under Section 122 -8 of the Monroe County Land
55 Development Code, the ability to develop their property in a manner consistent with the Act; and
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57 WHEREAS the Monroe County Developmental Review Committee considered this
58 Ordinance and made comments on February 25, 2014; and
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60 WHEREAS, the Monroe County Planning Commission during a regular meeting held on
61 February 26, 2014, reviewed, discussed, and approved the recommendation of the Sr. Director of
62 Planning and Environmental Resources to the Planning Commission for the revisions to Chapter
63 118 of the Monroe County Land Development Code;
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65 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
66 COMMISSIONERS OF MONROE COUNTY, FLORIDA:
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68 Section 1 . Chapter 118 of the Monroe County Land Development Code shall be amended
69 as follows (deletions are s#ielren-th-reagh and additions are underlined)
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71 Sec. 118 -13. Endangered Species.
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73 (a) Applicability. On parcels that the U.S. Fish and Wildlife Service has determined are within
74 Critical Habitat or designated potentially suitable habitat for federally listed threatened or
75 endangered species no development shall occur without full compliance with the terms of this
76 chapter in addition to other applicable regulations including but not limited to Section 122-8.
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78 (b) Technical Assistance Required. For any development permit application filed with Monroe
79 County for properties located within Critical Habitat or designated potentially suitable habitat for
80 federally listed threatened and endangered species that are not included in the U.S. Fish and
81 Wildlife Service's April 30 2010 Biological Opinion and/or are not included in the species
82 addressed under Section 122 -8 of the Monroe County Land Development Code the property
83 owner shall be required to consult directly with the U.S. Fish and Wildlife Service and provide
84 authorization from the U.S. Fish and Wildlife Service to Monroe County before commencement
85 of development. Any conditions imposed by the U.S. Fish and Wildlife Service shall be incorporated
86 as conditions of the Monroe County development permit
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Section 2 Severability.
If any section, paragraph, subdivision, clause, sentence, or provision of this Ordinance shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
impair, invalidate, or nullify the remainder of this Ordinance, but the effect thereof shall be
confined to the section, paragraph, subdivision, clause, sentence, or provision immediately
involved in the controversy in which such judgment or decree shall be rendered.
Section 3 Conflicting Provisions.
In the case of direct conflict between any provision of this Ordinance and a portion or provision
of any appropriate federal, state, or county law, rule, code, or regulation, the more restrictive
shall apply.
Section 4 Filing, Transmittal, and Effective Date.
This Ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
transmitted to the State Land Planning Agency, but shall not become effective until a notice is
issued by the State Land Planning Agency or Administration Commission approving the
Ordinance pursuant to Chapter 380, Florida Statutes, and the time for challenge has passed.
Section 5 Codification.
The provisions of this Ordinance shall be included and incorporated into the Code of Ordinances
of the County of Monroe, Florida, as an addition or amendment thereto and shall be
appropriately numbered to conform to the uniform numbering system of the Code.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida
at a regular meeting held on the 19th day of March ' 2014.
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Mayor Sylvia Murphy
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Mayor Pro Tern Danny L. Kolhage
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Commissioner Heather Carruthers
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David Rice
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Commissioner George Neugent
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BOARD OF COUNTY COMMISSIONERS OF MO N
CO Y, FL RIDA
BY
May
Sylvia Murphy
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Final Order No. DEO -14 -057
STATE OF FLORIDA
DEPARTMENT OF ECONOMIC OPPORTUNITY
In re: A LAND DEVELOPMENT REGULATION
ADOPTED BY MONROE COUNTY, FLORIDA, ORDINANCE NO. 002 -2014
FINAL ORDER
APPROVING MONROE COUNTY ORDINANCE NO. 002-2014
The Department of Economic Opportunity ( "Department') hereby issues its Final Order,
pursuant to §§ 380.05(6) and 380.0552(9), Fla. Stat., approving land development regulations
adopted by Monroe County, Florida, Ordinance No. 002 -2014 (the "Ordinance ").
FINDINGS OF FACT
1. The Florida Keys Area is designated by § 380.0552, Fla. Stat., as an area of critical
state concern. Monroe County, is a local government within the Florida Keys Area.
2. The Ordinance was adopted by Monroe County on March 19, 2014.
3. The Ordinance amends Chapter 118 "Environmental Protection," within the
Monroe County Land Development Code. More specifically, it creates Section 118 -13
"Endangered Species," to provide for coordination with the United States Fish and Wildlife
Service ( "USFWS ") for permit applications on parcels located in a Critical Habitat or designated
as a potentially suitable habitat for federally listed threatened and endangered species. This
coordination includes direct consultation with, and authorization from, USFWS before
commencement of development for such parcels.
CONCLUSIONS OF LAW
4. 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.
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Final Order No. DEO -14 -057
5. "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.
6. 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.
7. The Ordinance is consistent with Future Land Use Objective 103.2 and Future Land
Use Element Policy 103.2.13 of the Monroe County Comprehensive Plan.
8. The Ordinance is consistent with the Principles for Guiding Development in section
380.0552(7), Fla. Stat., as a whole, and is specifically consistent 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.
WHEREFORE, IT IS ORDERED that the Department finds that Monroe County
Ordinance No. 002 -2014 is consistent with the Principles for Guiding Development for the Florida
Keys Area of Critical State Concern and is hereby APPROVED
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.
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Final Order No. DEO -14 -057
DONE AND ORDERED in Tallahassee, Florida.
William 8_.Y4ITngsworth, Director
Division of Ckyhmunity 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.
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Final Order No. DEO -14 -057
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
TELEPHONE: (850) 245 -7160
FAX (850) 921 -3230
Email: James.Bellflower @deo.myflorida.com
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 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
RULE 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.
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Final Order No. DEO -14 -057
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 day of I V A , 2014.
ames W. Bellflower, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399 -4128
By U.S. Mail
The Honorable Sylvia Murphy
Mayor, Monroe County
500 Whitehead Street
Key West, FL 33040
Amy Heavilin, Clerk
Monroe County Board of County
Commissioners
500 Whitehead Street
Key West, FL 33040
Christine Hurley, Director
-
Monroe County Growth Management Division
r
2798 Overseas Highway, Suite 400
Wit.
Marathon, FL 33050
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