Item P09
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 10/18/06
Bulk Item: Yes No ~
Division: County Attorney
Staff Contact Person: Jerry D. Sanders
AGENDA ITEM WORDING:
Discussion and approval of proposed settlement of Florida Kevs Citizens Coalition and Last Stand v.
Department of Community Affairs and Monroe County. FL. Case No. DOAH 06-2449GM.
ITEM BACKGROUND:
Two environmental groups, Florida Keys Citizens Coalition and Last Stand, have challenged the
Department of Community Affair's approval offive (5) Monroe County Ordinances implementing the Tier
System. The matter was set to go to final hearing on Thursday, September 28 through Tuesday October
3rd; however was continued for 30 days to discuss this proposed settlement. Discovery is complete,
depositions taken and staff counsel, outside counsel, and DCA are ready for the hearing. If the settlement
breaks down a new hearing date would not be available until 2007 due to the DOAH schedule.
Pursuant to direction from the BOCC, staff has explored settlement options and has negotiated a
settlement agreement that is acceptable to the Challengers and DCA. It is subject to the review and
approval of the BOCC. It is a proposed compromise between the demands made by the Challengers and
the original Tier Maps and Ordinances adopted by the BOCC.
PREVIOUS RELEVANT BOCC ACTION:
On 3/15/2006 BOCC approved Ordinances 008-2006, 009-2006, 010-2006, 011-2006 and 013-2006.
On 7/19/06 BOCC directed staff to vigorously defend the Challenge and declined to implement any
moratoria pending the challenge. On 9/6/06, the Board directed staff to explore settlement options as well
as to continue to prepare for the hearing. On 9/25/06, the Board authorized staff to continue the hearing
scheduled to start 3 days later because a tentative settlement agreement was close to being reached.
CONTRACVAGREEMENTCBANGES: N/A
STAFF RECOMMENDATIONS: Approval of the proposed Settlement.
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No X
AMOUNTPERMONTH_ Year
APPROVED BY: County Atty-L
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION:
Included ~ Not Required _
DISPOSITION:
AGENDA ITEM #
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA KEYS CITIZENS COALTION, INe.: )
PROTECT KEY WEST AND THE FLORIDA )
KEYS, INC., d/b/a LAST STAND, )
Petitioners, )
)
)
)
)
)
)
)
)
v.
Case No. 06-2449GM
06-0R-123,
06-0R-124,
06-0R-125,
06-0R-126,
06-0R-127
DEPARTMENT OF COMMUNITY AFFAIRS
and MONROE COUNTY,
Respondents.
SETTLEMENT AGREEMENT
TillS SETTLEMENT AGREEMENT entered into this _ day of September, 2006, by and
between FLORIDA KEYS CITIZENS COALTION, INC., PROTECT KEY WEST AND THE
FLORIDA KEYS, INe., d/b/a LAST STAND (petitioner )and DEPARTMENT OF COMMUNITY
AFFAIRS (DCA) and MONROE COUNTY (County) (Respondents).
RECITALS
WHEREAS, the State of Florida, Department of Community Affairs (DCA), is the State
Land Planning Agency and has the authority to administer and enforce the Local Government
Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida
Statutes; and
WHEREAS, the DCA is additionally the State Land Planning Agency with the authority to
approve or reject any land development regulation or element of a local comprehensive plan in an
area of critical state concern which the Florida Keys has been so designated pursuant to Florida
Statutes Section 380.0552; and
WHEREAS, Monroe County is a local government with the duty to adopt comprehensive
plan amendments that are "in compliance" and land development regulations that are consistent
with its Comprehensive Plan; and
WHEREAS, the Petitioners have filed a Petition for Formal Administrative Proceedings
with the DCA which has in turn transmitted same to the Division of Administrative Hearings
(DOAH); and
WHEREAS, the challenged Final Orders were approval of certain Ordinances of the
County, namely Ordinance Numbers 008-2006,009-2006,010-2006,011-2006, and 013-2006, all
of which amend Land Development Regulations (LDRs) of the County; and
WHEREAS, Petitioners have challenged Final Orders Numbered DCA-OR0123, DCA-OR-
124, DCA-OR-125, DCA-OR-126, and DCA-OR-127 all of which were published in the Florida
Administrative Weekly, Volume 32, No. 24, June 16, 2006; and
WHEREAS, The challenged Final Orders approve land development regulations that seek
to implement portions of the Monroe County Comprehensive Plan and regulate land use and
development within Monroe County; and
WHEREAS, Petitioners claim in their challenge that the subject LDRs and Tier Overlay
District Maps are inconsistent with Chapter 380, Florida Statutes, the Area of Critical State
Concern Act (ACSCA) and Petitioners further claim that the regulations are inadequate to protect
the tropical hardwood hammock, pine rockland and transitional wetland communities of the Keys;
and
WHEREAS, Petitioners have sought an administrative determination overturning the Final
Orders on the basis that they are inconsistent with the requirements of Chapter 380, F.S., ACSCA;
and
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WHEREAS, the parties are desirous of settling and resolving all disputes between them and
to effectuate same execute this Settlement Agreement memorializing such resolution;
NOW, THEREFORE, the parties agree as follows:
1. The recitations cited above are incorporated herein as if fully set forth to which the
parties agree to the accuracy thereof
2. Respondent County has agreed to amend its LDRs to provide the following:
a. 9.5-256 (c)(3)c. Any hammock identified in the County's data base and
aerial surveys as 1.00 to 1.09 acres in area shall be verified by metes and
bounds survey by the County surveyor prior to its designation as Tier III-A.
A hammock that is deemed by survey and a field review by County
Biologists to fail the minimum size criteria shall have the Special Protection
Area designation removed from the subject parcel.
d. 9.5-256(c)(3)d. Additional Special Protection Areas ofless than 1.0 acre of
tropical hardwood hammock or pine lands may be designated as Special
Protection areas if determined by the County Biologist that development in
such areas or lots would increase additional secondary impact on threatened
or endangered species due to their proximity to a designated Tier I area.
e. 9.5-256(c)(3)e. Additional lots or areas may be designated Special
Protection Areas to discourage further development in Air Installations
Compatible Use Zones (AICUZ) areas.
f 9.5-256(c)(3)(g) Subsequent subdivision
Development applications for lots or parcels created by subdivision of
existing lots or parcels after the effective date of this Ordinance shall be
reanalyzed against the criteria for the assignment of tiers. If the previous tier
designation for the undeveloped portion for the newly created parcel is based
upon the fact that the undeveloped portion was part of a larger parcel that
was considered developed. and if the character of the newly created parcel
meets the criteria for a more restrictive designation. the more restrictive
designation shall be applied to the development application.
g. 9.5-256(cX3)(h) The County shall conduct a review and analysis of the
effectiveness of the tier system in meeting the goals and obiectives of the
Comprehensive Plan. including implementing the Carrying Capacity Study
and recommend any changes to the tier system required to better meet these
goals and obiectives. By June 2008. the tier maps shall be compared to the
USFWS 2006 Protected Species Maps. the best available data on the
distribution of State Listed Species and the County shall consult and
coordinate with the USFWS and review information available from the
Florida Fish and Wildlife Commission and any parcels or lots that are known
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or probable habitat for a State or Federal protected species shall be
redesignated as Tier I or SPA. The County will additionally perform such
analysis and adopt such changes as part of its periodic evaluation and
appraisal (EAR) comprehensive plan amendments.
h. 9.5-256(c)(3)(i) On an annual basis the County shall analyze all new habitat
maps or other information on the distribution of wildlife species and amend
the tier maps as necessary to insure adequate protection for all remaining
hammocks that are important to the function of the Keys terrestrial
ecosystem.
3. The County will additionally submit as part of the 07-01 Comprehensive Plan
Amendment Cycle or the next EAR Amendment, whichever provides the earliest
opportunity, the following amendments:
a. The LDRs above identified as 9.5-256(c)(3)(h) and (i).
b. The Tier Designation Maps adopted by Ordinance 13-2006, as amended by
this Settlement Agreement and any subsequent Compliance Agreement
implemented pursuant thereto.
4. Petitioners agree that they shall not challenge, directly or indirectly, the
Comprehensive Plan amendment which incorporates the Tier Maps which are
referenced above in this paragraph.
5. The County will amend LDR Section 9. 5-256( c )(3)(b)3. to read as follows:
The lot is located within a one acre patch ofhamtnock that is divided from the other
lots that make up the one acre or more patch by a paved road that is at least 18 feet
wide and the applicant affirmatively demonstrates. based on clear scientific
evidence. that the existence of the road has reduced the ecological function of the
hammock of which the lot is a part to the extent that said hammock has no value as
suitable habitat for a protected species.
6. The County will amend LDR Section 9.5-122.4(c) concerning Lot Aggregation to
add the following exception:
No aggregation oflots will be permitted in areas on a public acquisition list as
published and existing on March 15,2006.
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7. The County agrees to redesignate certain Tier Designations as identified on the
following Tier Maps, as follows:
a. 1.
2.
3.
4.
5.
6.
7.
8.
Designate all undesignated parcels and offshore islands as Tier I
Sheet with identification area 91 :
Redesignate two housing parcels/ranger houses to Tier I.
Sheet with identification area 102:
Undesignated land that is not submerged redesignated to Tier I.
Sheet with identification area 105/106
Redesignate to SPAthe area so identified
Sheet with identification area 106a:
Redesignate to Tier I the area so identified
Sheet with identification area 117 A:
Redesignate to Tier I the undesignated area
Sheet with identification area 119:
Redesignate Tier ill parcel to Tier I
Sheet with identification area 124
a. (Area mis-identified as 113/114 and areas identified as
124/125):Alllots within these two areas within 300' within
Tier I tropical hardwood hammock would be redesignated to
SPA;
b. Area identified as 124a redesignate to SPA
9. Sheet with identification area 125d:
Redesignate to Tier I
10. Sheet with identification area 139a:
Redesignate to Tier I
11. Sheet with identification area of 147a:
Hammock lots, i.e. those not developed and with less than 40%
invasive exotics thereon, to be redesignated SPA
12. Sheet with identification area of281b:
Redesignate to Tier I
13. Sheet with identification area of37ld:
Redesignate to Tier I
14. Sheet with identification area of 412a:
Redesignate to Tier I
15. Not used
16. Sheet with identification area of 413c:
Redesignate to SPA
17. Sheet with identification area of 450c:
Redesignate to Tier I
18. Sheet with identification area of 450e:
Redesignate to Tier I
19. Sheet with identification area of 467:
a. 467b: redesignate to Tier I
b. 467c: redesignate to Tier I
c. 467d: redesignate easterly 3 lots as Tier I
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d. 467e: 3 vegetated lots north of the canal to be redesignated
as SPA
20. Sheet with identification area of 482:
Redesignate area as SPA
21. Sheet with identification areas of 548/540/549:
Redesignate area as SPA
22. Sheet with identification area of 554d:
Redesignate to Tier I
23. Sheet with identification area of 566/567:
Redesignate to Tier I
24. Sheet with identification area of 579:
The natural area clearly identified thereon to be redesignated as Tier I
(not including the row oflots)
25. Sheet with identification area of581:
Redesignate area as Tier I
26. Sheet with identification area of 582
Redesignate parcel in area identified as Tier I
8. Petitioners agree that once the Comprehensive Plan Amendments have been adopted
and approved by DCA, County may amend its LDRs to remove redundant or
superfluous policies.
9. Upon adoption of the above-referenced LDRs Petitioners agree to dismiss the
Petition for Formal Administrative Review captioned herein.
10. By entering into this agreement, Petitioners do not waive or moot the issues raised in
the matter of Fla. Keys' Citizens' Coalition & Last Stand v. Admin. Comm &
Monroe County (Florida Third District Court of Appeal Case No. 3D05-1800),
except for challenges in that case to any LDR provisions that have been repealed or
amended by the LDRs that are the subject to the instant action and settlement
agreement, and in particular to not waive their position that all ROGOINROGO
allocations remain subject to the 24 hour standard in policies Future Land Use
policies 101.2.1 and 216.1.1 of the Monroe County Comprehensive Plan.
11. It is the intention of the parties that this Settlement Agreement is fully binding upon
the parties and by execution of counsel hereto each represents that he has the
6
authority of his clients to bind them to the Settlement Agreement in resolution of the
issues which were raised in the underlying Administrative Challenge identified in
the caption herein. Although fully binding upon the parties, it is their contemplation
that a more comprehensive compliance agreement will be drafted and entered into
between the parties however, should for any reason such compliance agreement not
be executed by the parties, this Settlement Agreement shall be fully binding upon all
parties hereto.
12. Notwithstanding any other provision above, County's acceptance of this Settlement
Agreement by execution of its counsel below is subject to the approval of its
governing body, the Board of County Commissioners of Monroe County (BOCC),
who have not yet considered same. Should, for any reason the BOCC fail to ratify
and approve this Settlement Agreement, it shall have no force or effect. If so
approved, however, it shall be fully binding on the parties hereto.
IN WITNESS WHEREOF, the parties, by and through their respective counsel have
executed this Settlement Agreement this the day and year first above written.
FOR PETITIONERS:
FOR MONROE COUNTY:
Richard Grosso, Esq.
Florida Bar No. 0592978
Attorney for Petitioners
Everglades Law Center, Inc.
Shepard Broad Law Center
Nova Southeastern University
3305 College Ave.
Ft. Lauderdale, FL 33314
Telephone: (954) 262-6140
Jerry D. Sanders
Assistant County Attorney
FBN: 112798
Monroe County, Florida
P.O. Box 1026
Key West, FL 33041-1026
(305) 292-3470
(305) 292-3516 facsimile
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Facsimile: (954) 262-3992
FOR DEPARTMENT OF COMMUNITY AFFAIRS
Valarie J. Hubbard
Director, Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
(850) 488-0410
(850) 922-2679 (fax)
8
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA KEYS CITIZENS COALmON, INC.
and Protect Key West and the Florida Keys, Inc.
d/b/a "LAST STAND",
Petitioners
v.
DOAH Case No.: 06-2449GM
DCA Final Order Nos.: DCA06-0R-123
DCA06-0R-124
DCA06-0R-125
DCA06-0R-126
DCA06-0R-127
FLORIDA DEPARTMENT OF COMMUNITY
AFFAIRS and MONROE COUNTY,
Respondents.
/
AMENDEDl PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS
Introduction
FLORIDA KEYS CITIZENS COALITION, INe. and Protect Key West and the Florida
Keys, Inc. d/b/a "LAST STAND" file this Amended Petition for Formal Administrative
Proceedings pursuant to sections 120.569 and 120.57(1), Fla. Stat. to challenge five (5) Final
Orders of the Department of Community Affairs approving Land Development Regulations
adopted by Monroe County within the Florida Keys Area of Critical State Concern and state as
follows:
1. The challenged final orders are: DCA06-0R-123, DCA06-0R-124, DCA06-0R
125, DCA06-0R-126, and DCA06-0R-127, all of which were published in the Florida
1 Amended only by additions and subtractions to the list of challenged Tier Map Sheets in
paragraph 31.
1
Administrative Weekly, Volume 32, No.24, June 16,2006.
2. The challenged fInal orders approve land development regulations that seek to
implement portions of the Monroe County Comprehensive Plan and regulate land use and
development within Monroe County.
3. This challenge is based on the inconsistency of the subject Land Development
Regulations (LDRs) and Tier Overlay District Maps with Chapter 380, Fla Stat., the
Area of Critical State Concern Act. The regulations are inadequate to protect the tropical
hardwood hammock, pine rockland, and transitional wedand communities in the Keys.
4. Petitioners seek an administrative determination overturning the Final Orders on
the basis that they are inconsistent with the requirements of Chapter 380, Fla Stat., for
the reasons stated below.
Identification of Petitioners and Other Parties
5. Petitioner, FLORIDA KEYS CITIZEN COALITION ("FKCC"), is a not-for
profIt Florida corporation whose address is 10800 Overseas Highway, Marathon, FL.,
33050.
6. Petitioner, Protect Key West and the Florida Keys, Inc. d/b/a "LAST STAND"
("LAST STAND") is a not-for-profit Florida Corporation whose address is P.O. Box 146,
Key West, Florida 33041-0146.
7. Respondent, DEPARTMENT OF COMMUNITY AFFAIRS ("DCA") is a State
agency exercising powers granted to it by Section 380.05, Fla. Stat. 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 ("ACSC"). DCA's
address is 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100.
8. Respondent, MONROE COUNTY, is a local county government within the
Florida Keys ACSC. The County's address is 500 Whitehead St., Key West, Florida
33040. Monroe County is required to adopt and maintain land development regulations
that are consistent with its comprehensive plan and with Chapter 380 Fla Stat.
Explanation of How Petitioners' Substantial Interests Are or Will be Affected
9. The FK.CC is comprised of eleven organizations whose members live, work and
reside in Monroe County.
10. A substantial number of the members of the FK.CC will be substantially and
adversely affected by the Final Orders.
11. The FK.CC is a substantially affected person in that it, and a substantial number of
its members, has and have been directly involved in the development and enforcement of
the Monroe County Comprehensive Plan and implementing land development regulations
for over 20 years.
12. A substantial number of the FK.CC's members own property and live within
unincorporated Monroe County, and rely upon the Monroe County Comprehensive Plan
and implementing land development regulations to protect their quality of life, and the
near shore water quality upon which the Keys' economy depends, and their ability to
safely evacuate from the Keys.
13. A substantial number of the FK.CC's members use the near shore waters of the
Florida Keys for recreation, fishing, swimming, and other uses that are dependant on the
quality of that water.
14. A substantial number of the FK.CC's members use the Tropical Hardwood
Hammocks, Pinelands, and Transitional Wetlands within Monroe County for
recreational, bird-watching, and other uses that are dependant on the quality of that
habitat.
15. Among the FKCC's primary purposes is the coordination of the work of its
members to promote, preserve and enhance the quality of life for residents of the Florida
Keys and the biodiversity and sustainability of the Keys' natural environment.
16. The FKCC has expended significant member and financial resources throughout
the past decade as an advocate and litigant in the administrative processes and litigation
3
in 1994 and 1996 which resulted in the current comprehensive planning scheme including
the challenged land development regulations. The FKCC has, as an advocate and litigant,
expended substantial resources to put into place the comprehensive plan provisions which
required the adoption of the subject permanent habitat protections.
17. FKCC and its members are substantially affected by the Final Orders.
18. Petitioner, Protect Key West and the Florida Keys, Inc. d/b/a "LAST STAND" is
a Florida not-for-profit corporation of approximately 300 citizens whose purpose is to
protect and preserve the natural environment and quality of life in the Florida Keys.
LAST STAND works to prevent environmental damage to the Florida Keys upland and
wetland habitats of endangered and threatened species, Florida Keys Outstanding Florida
Waters and National Marine Sanctuary, and represents its members in administrative and
judicial proceedings to oppose land use and permitting decisions that have negative
environmental impacts. In Monroe County, LAST STAND works to improve public
access to the waterfront and to promote sustainable growth management and avoid
commercial over-development with its concomitant negative impacts on traffic, housing
and general quality of life.
19. A substantial number of LAST STAND's members own property and live within
incorporated and unincorporated Monroe County, and rely upon the Monroe County
comprehensive plan and its implementing land development regulations to protect their
quality of life, near shore water quality, terrestrial habitat, and ability to safely evacuate.
20. A substantial number of the members of LAST STAND reside, own property,
operate businesses, recreate, and bird watch within Monroe County, Florida and the near
shore waters thereof A substantial number of the members use the near shore waters of
the Florida Keys for recreation, fishing, swimming, and other uses that are dependant on
the quality of that water. A substantial number of the members use the Tropical
Hardwood Hammocks, Pinelands, and Transitional Wetlands within Monroe County for
recreation, bird-watching, and other uses that are dependant on the quality of that habitat.
A substantial number of LAST STAND's members are substantially affected persons
within the meaning of the Florida Administrative Procedure Act.
21. LAST STAND is a "Substantially Affected Person" entitled to initiate this
proceeding in accordance with the Florida Administrative Procedure Act.
22. LAST STAND is a resident of Monroe County, because the organization has
members who reside in, own property in, or own or operate businesses within Monroe
County.
23. A substantial amount of Petitioners' members will also be "adversely affected" to
the extent that their water quality, personal safety, ability to recreate, bird watch and
enjoy the the natural habitats of the Florida Keys will be adversely impacted by the land
development regulations approved by the challenged Final Orders.
When and How Notice Was Received
24. Notice of the Final Orders was received VIa publication ill the Florida
Administrative Weekly, Volume 32, Number 24, June 16,2006.
25. The Petition was filed within 21 days of the publication of the Notices of Final
Orders.
Statement of Material Facts Disputed and Alle2ed
26. Final Order DCA06-0R-123 approves portions of Monroe County
Ordinance No. 008-2006 ("Ord. 008-2006") which: "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.
(Final Order DCA06-0R-123 is attached as Exhibit "A" and Monroe County Ord. 008-
2006 is attached as Exhibit "B.")
a. Sec. 9.5-336 provides inadequate protection for endangered/threatened or
protected species that are not observed on a surveyed parcel of land, and does not
5
require the use of the most current State and Federal protected species lists.
b. Sec. 9.5-336 arbitrarily fails to protect endangered, threatened and "of concern"
plants less than 4" diameter, leaving small trees, shrubs, and herbaceous species
unprotected and defeating efforts to restore previously cleared or storm damaged
areas.
c. Sec. 9.5-336 arbitrarily fails to require the use of the Florida Exotic Pest Plant
Council (FLEPPC) and the Florida Keys Invasive Exotic Task Force lists to
identify pest plants.
d. Sec. 9.5-336 arbitrarily fails to require the identification of potential habitat of
protected species.
e. Sec. Sec. 9.5-338 arbitrarily allows clearing on lots that receive points for
aggregation, thus failing to protect the natural areas that aggregation is designed
to protect.
27. Final Order DCA06-0R-124 approves Monroe County Ordinance No. 009-
2006 ("Ord. 009-2006") which revises the Rate of Growth Ordinance ("ROGO") and
utilizes "tier overlay maps as the basis for the competitive point system; providing
revised criteria for the building permit allocation system; establishing new allocations for
sub areas; allowing the transfer of development exempt from ROGO provided the
receiver site is located in Tier 3, is not in a velocity zone, and requires no clearing; and
creating an appeal process." (Final Order DCA06-0R-124 is attached as Exhibit "c" and
Monroe County Ord. 009-2006 is attached as Exhibit "D.") More specifically:
a. Sec. 9.5-120-4(6) states that outside of the Big Pine HCP, in Tier I, there will be
three (3) annual allocations in the Upper Keys and three (3) in the Lower Keys.
This is vague, arbitrary and capricious because it is not specified how these
allocations will be determined. The ordinance fails to assign negative points for
endangered species and habitat quality to direct development in Tier I away from
the most important natural areas.
b. Sec 9.5-122-1(g) (1) allows the Planning Commission to award additional
dwelling units from future annual allocations to complete projects. TIlls is
arbitrary and capricious as it provides no standards or limits on whether or to what
extent, such additional allocations can be awarded.
c. Sec 9.5-122-l(g) (4) allows the BOCC to "make available for award up to one
hundred percent of the affordable housing allocations available over the next five
annual allocations." This is arbitrary and capricious and inconsistent with the
comprehensive plan, which does not allow for allocations beyond the annual caps.
In addition, this allowance may result in unacceptable evacuation and
environmental impacts.
d. Sec 9.5-122-2c (2) allows the planning commission, upon review of the market
rate allocation applications and evaluation worksheets, to "adjust the points
awarded for meeting a particular criteria, adjust the rankings as a result of changes
in points awarded, or make such other changes as may be appropriate and
justified." This is arbitrary and capricious and inconsistent with the
comprehensive plan, as it allows the awarding of points other than as specified in
the comprehensive plan and grants the Planning Commission unfettered discretion
in the awarding of allocations.
e. Sec. 9.5-122.3(f) fails to establish any required facts or findings as a condition
precedent before the County can provide a form of administrative relief other than
an offer to purchase.
f. Sec. 9.5-122.4 establishes ROGO Evaluation Criteria which arbitrarily fail to
prioritize the protection of protected species based upon their status or habitat
based on its quality within each Tier.
g. Sec. 9.5-266(a)(8) arbitrarily allows housing units permitted as "affordable or
employee housing" to be used for market rate housing.
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h. This LDR allows the granting of 30 ROGO points to projects adjacent to native
vegetation in Tier lor an SPA, as long as there is no clearing. This is arbitrary as
it allows the type of indirect impacts which the Canying Capacity Study
determined should no longer be allowed.
28. Final Order DCA06-0R-125 approves Monroe County Ordinance No. 010-
2006 ("Ord. 0 1 0-2006") which: "implements Goal 1 05 of the Monroe County
Comprehensive Plan; provides criteria for designation of the tier boundaries, excluding
Ocean Reef, a vested subdivision; and prioritizes land for public acquisition. The
ordinance also contains a mechanism for property owners to obtain due process by
requesting an amendment to the designation based on specific criteria." (Final Order
DCA06-0R-125 is attached as Exhibit "E" and Monroe County Ord. 010-2006 IS
attached as Exhibit "F.")
a. Sec. 9.5-256 (b), as amended, arbitrarily states that Tier boundaries should follow
property lines, canals or roadways, instead of natural vegetative community
boundaries.
b. This LDR allows for arbitrary decisions as to designation when a parcel is both
part of a large Tier I hammock and in a substantially developed subdivision. The
adopted maps are inconsistent with regard to designation of parcels containing
both natural and cleared areas. Given the underlying science concerning the need
to protect all remaining natural areas, it is arbitrary and capricious for the LDR to
fail to require designation in the most protective Tier for lands that meet or
potentially meet criteria for more than one Tier.
c. Sec. 9.5-256 (c)(I)(a) establishes a 4-acre criteria for designation oflands in Tier
I that is arbitrary and capricious in that the relevant science does not support a
categorical determination that natural areas below that size threshold require less
protection than those at or above that threshold.
d. Sec. 9.5-256 (c)(l)(e) arbitrarily limits Tier I protections to "known locations of
threatened and endangered species . . . identified on the Threatened and
Endangered Plant and Animal Maps. . ." This is contrary to the science as the
referenced maps are not the best available science and limiting protection to
"known locations" of such species arbitrarily fails to protect locations which have
not yet been verified as "known" locations, but which mayor are likely to be
important to protected species.
e. The definition of Tier I is arbitrarily vague in that it does not specifY whether
wetland native vegetated areas are to be included, whether the four acres in "size
area" refers only to "new growth of upland native vegetated areas" or also to
"Natural areas", or how roads will impact the determination of the relevant "size
area. "
f. Sec. 9.5-256 (c) (3) arbitrarily excludes habitat patches that are not "greater
than 1 acre" in size from the protections afforded Special Protection Areas
("SPA"). This is inconsistent with the best available science, which does not
support a categorical conclusion that habitat patches of one acre or less in size
require less protection than those placed in the SPA category.
g. Sec. 9.5-256 (c) (3)(a)(2) arbitrarily allows the existence of disturbed pinelands
and hammocks with 40% coverage of exotics to break contiguity in Tier ill-A
(SPA) for pmposes of determining whether an area meets the stated size
thresholds. This is contrary to the science, which calls for the removal of exotic
vegetation to restore habitat and re-establish contiguity.
h. Sec. 9.5-256 (c)(3) (b) arbitrarily allows for the removal of parcels from the SPA
Tier for reasons unrelated to their habitat value, such as service by central sewer,
the existence of a paved road at least 16' wide.
1. Sec. 9.5-256 (c)(3)(c) arbitrarily requires a survey of any hammock less that 1.09
9
acres before designating it Tier Ill-A, while the balance of the LDR fails to
require a survey of parcels below the size threshold set for Tier I before
concluding that a parcel should not be placed in Tier I.
J. Sec. 9.5-256 (c)(3)(e) is vague and grants the County Commission unfettered
discretion to adopt or not adopt a special master recommendation to change a
parcel's Tier designation.
k. This LDR provides inadequate protection for transitional wetlands and
"disturbed" salt marsh and buttonwood wetlands.
l. The development standards for Tier ill-A (SPA) are inadequate to protect the
natural areas placed in that Tier.
m. This LDR provides inadequate protections for threatened or endangered species or
species of special concern.
29. Final Order DCA 06-0R-I26 approves Monroe County Ordinance No. 011-
2006 (Ord. 011-2006), which revises the Non-residential Rate of Growth Ordinance
("NROGO"). (Final Order DCA 06-0R-126 is attached as Exhibit "G" and Monroe
County Ord. 011-2006 is attached as Exhibit "R.")
a Sec. 9.5-124.3(a)4, as revised, arbitrarily allows a "not - for - profit" NROGO
exemption in the SPA that is not allowed in Tier I.
b. Sec. 9.5-124.7 (I), as revised, fails to establish any required facts or findings as a
condition precedent before the County can provide a form of administrative relief
other than an offer to purchase.
30. Final Order DCA06-0R-127 approves Monroe County Ordinance No. 013-
2006 ("Ord. 013-2006"), which: "implements Goal 1 05 of the Monroe County
Comprehensive Plan utilizing the tier overlay maps for all land in unincorporated Monroe
County between Key West and Ocean Reef, and designating the tier boundaries of Tier I,
Tier 2, Tier 3, and Tier 3 Special Protection Areas." (Final Order DCA06-0R-127 is
attached as Exhibit ''f' and Monroe County Ord. 013-2006 is attached as Exhibit "1.")
3 I. The following Sheets of the Tier Overlay Maps are inconsistent with the Tier
adoption criteria in Policies 205.1 and 205.2, or otherwise fail to provide a high enough
level of protection for the habitat on or connected to the relevant parcel or parcels:
1. Sheet 71
2. Sheet 91
3. Sheet 102
4. Sheet 103
5. Sheet 105
6. Sheet 106
7. Sheet 108
8. Sheetl09
9. Sheet 110
10. Sheet 112
11. Sheet 113
12. Sheet 114
13. Sheet 116 & 116A
14. Sheet 117 & 117A
15. Sheet 118
16. Sheet 119
17. Sheet 120
18. Sheet 121
19. Sheet 124
20. Sheet 125
21. Sheet 126
22. Sheet 133
23. Sheet 134
24. Sheet 135
25. Sheet 137
26. Sheet 139
27. Sheet 140
28. Sheet 141
29. Sheet 142
30. Sheet 145
31. Sheet 146
32. Sheet 147
33. Sheet 148
34. Sheet 150
35. Sheet 151
36. Sheet 152
37. Sheet 153
38. Sheet 154
39. Sheet 155
11
40. Sheet 156
41. Sheet 250
42. Sheet 251
43. Sheet 252
44. Sheet 256
45. Sheet 281
46. Sheet 334
47. Sheets 344 & 345
48. Sheet 370
49. Sheet 371
50. Sheet 372
51. Sheet 375
52. Sheet 385
53. Sheet 386
54. Sheet 387
55. Sheet 390
56. Sheet 400
57. Sheet 401
58. Sheet 412
59. Sheet 413
60. Sheet 414
61. Sheet 415-1
62. Sheet 425
63. Sheet 439
64. Sheet 441
65. Sheet 450
66. Sheet 467
67. Sheet 468
68. Sheet 482
69. Sheet 507
70. Sheet 515
71. Sheet 5 Hi
72. Sheet 526
73. Sheet 537
74. Sheet 538
75. Sheet 540
76. Sheet 546
77. Sheet 547
78. Sheet 548
79. Sheet 549
80. Sheet 553
81. Sheet 554
82. Sheets 566 & 567
83. Sheet 568
84. Sheet 569
85. Sheet 575
86. Sheet 576
87. Sheet 577
88. Sheet 579
89. Sheet 581
90. Sheet 582
Concise Statement of Ultimate Facts Alleeed
31. The land development regulations approved by the Final Orders are inadequate to
protect the tropical hardwood hammock, pine rockland, and transitional wetland communities in
the Keys and are thus inconsistent with the requirements of Chapter 380, Fla. Stat.
Rules or Statutes Petitioners Contend Require Reversal or Modification of the Aeency's
Proposed Action
32. The Final Orders are inconsistent with the Principles for Guiding Development as a
whole, pursuant to Section 380.0552 (7), Fla. Stat.
33. The Final Orders are inconsistent with Section 380.0552 (2)(a), Fla. Stat., because
they fail to establish a land use management system that protects the natural
environment of the Florida Keys.
34. The Final Orders are inconsistent with Section 380.0552 (7)(b), Fla. Stat., because
they fail to protect shoreline and marine resources, including mangroves, coral reef
formations, seagrass beds, wetlands, fish and wildlife, and their habitat.
35. The Final Orders are inconsistent with Section 380.0552 (7)(c), Fla. Stat., because
they fail 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.
36. The Final Orders are inconsistent with Section 380.0552 (7)(e), Fla. Stat., because
they fail to limit the adverse impacts of development on the quality of water
throughout the Florida Keys.
37. The Final Orders are inconsistent with Section 380.0552 (7)(f), Fla. Stat., because
they fail to enhance natural scenic resources, promote the aesthetic benefits of the
13
natural environment, and ensure that development is compatible with the unique
historic character of the Florida Keys.
38. The Final Orders are inconsistent with Section 380.0552 (7)(g), Fla. Stat., because
they fail to protect the historical heritage of the Florida Keys.
39. The Final Orders are inconsistent with Section 380.0552 (7)(h), Fla. Stat., because
they fail to protect the value, efficiency, cost-effectiveness, and amortized life of
existing and proposed major public investments, including Federal parks, wildlife
refuges, and marine sanctuaries; and State parks, recreation facilities, aquatic
preserves, and other publicly owned properties.
40. The Final Orders are inconsistent with Section 380.0552 (7)(i), Fla. Stat., because
they fail to limit the adverse impacts of public investments on the environmental
resources of the Florida Keys.
41. The Final Orders are inconsistent with Section 380.0552 (7)(1), Fla Stat., because
they fail 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.
Relief Soumt bv the Petitioners
WHEREFORE, it is respectfully requested that the Division of Administrative Hearings
conduct a formal administrative hearing on the issues raised in this Amended Petition and enter a
Final Order determining the Final Orders to be invalid for the reasons stated above.
Richard Grosso, Esq.
Florida Bar No. 0592978
Everglades Law Center, Inc.
Shepard Broad Law Center
Nova Southeastern University
3305 College Ave.
Ft. Lauderdale, FL 33314
14
Telephone: (954) 262-6140
Facsimile: (954) 262-3992
Robert Hartsell, Esq.
Florida Bar No. 0636207
Jason Totoiu, Esq.
Florida Bar No. 871931
Everglades Law Center, Inc.
330 U.S. Highway 1, Suite, 3
Lake Park, Florida 33403
Telephone: (561) 844-5222
Facsimile: (561) 844-5004
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by
electronic mail and U.S. mail to all parties listed below on this 7th day of September, 2006.
Jason Totoiu, Esq.
Florida Bar No. 871931
Richard E. Shine, Esq.
Assistant General Counsel
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
(850) 488-0410
(850) 922-2679 (fax)
richard. shine@dca.state.fl.us
Suzanne A. Hutton, Esq.
Robert B. Shillinger, Jr., Esq.
Momoe County Attorney's Office
P.O. Box 1026
Key West, Florida 33041-1026
Shillinger-bob@momoecountv-fl.gov
Jerry Sanders, Esq.
Assistant County Attorney
502 Whitehead Street
Key West, FL 33040
Sanders-i errv@monroecountv-fl.gov
15
Schedule 7
Commissioners:
The following is Schedule 7 - proposed amendments to the Monroe County Tier
Overlay District Maps as a result of the proposed settlement agreement.
In summary as a result of negotiations with the petitioner, the Florida Keys
Citizens Coalition, Inc. and Protect Key West and the Florida Keys, Inc., d/b/a
La st Stand, 28 5 he ets require modifications. The fo 1I0wing cha rt deta i15 a
brea kdawn of these proposed cha nges:
o
r 0
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i--.'--.-'~:~~~:~}~-~=~-
1 ._ _1L--l-.-1!.L..-.-
3 1 I 6 I
1 I 5Q ~--"r~~~1
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__ _ _~A...__.__"__+_~~....l.~._-" ..+____._..,~L u_...___
1 2 i 1'6 .
Tolal$ i 376 ~13
The settlement also includes additional agreements to amend the Land
De'Jelopment Regulations proposed and adopted in March. These changes
would amend the Tier designation criteria to allow the above Tier Designation
changes to be made. The settlement also includes various other agreements
which will result in a commitment to further review and evaluate the
effectiveness of the Tier System and make additional changes to Tier
de signatio ns a 5 a resu It of these reviews in co njunction with reco m me ndatio ns
with the DCA and USFW. The following is text portion of the settlement
agreement for your review.
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Monroe County, Florida
Tier Overlay District Map
Schedule 7
"
. Tierl-NaluralArea
. Tierlll-lnfillArea
. Tier III A - Special Proleclion Area
. Mililary land n Mile Marker
D Changed as a resull of Sell lemen I - Road
Agreemenl lellals 2004 DOOOs, 111101
aVailable 2003pholographywasused
Tnis map is lor Monroe County Growtn Management Division
purposes only, Tne data contained nerein is illustrative and may
not accurately depict boundaries, parcels, roads, rigntolways,
or identilication inlormation
Feet
Dale Ocl 05, 2006
250 500
Sheel 450
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