Ordinance 036-2006
ORDINANCE NO. 036 - 2006
AN ORDINANCE OF THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS AMENDING THE
DEFINITION OF ACCESSORY USES OR ACCESSORY
STRUCTURES, AND ADJACENT LANDOWNER IN ~9.5-4
OF THE MONROE COUNTY CODE; AMENDING ~9.5-256
AGGREGATION OF DEVELOPMENT, TO CREATE
CONDITIONS FOR AGGREGATION OF LANDS AND ~9.5-
349 SHORELINE SETBACKS, TO PERMIT DOCKING
FACILITIES ON LANDS WITHIN 500 FEET OF LAND
CONTAINING THE PRINCIPAL STRUCTURE UNDER
CERTAIN CONDITIONS AND CREATING AN APPROVAL
PROCESS FOR SUCH REQUESTS; PROVIDING FOR
SEVERABILITY; PROVIDING FOR CONFLICT; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Board of County Commissioners makes the following Findings
of Fact:
]. A need has been recognized to distinguish between adjacent and contiguous
lands in the definitions of the Monroe County Land Development Regulations (LDRs).
2. A need has been recognized to clarify which lands qualify for aggregation of
development under the LDRs.
3. The current LDRs do not provide definitions or procedures for aggregation that
meet thE: needs of Monroe County residents.
4. At the direction of the Planning Commission, the Planning and Environmental
Resources Department was directed to create an amendment to the LDRs, that would
create a mechanism to allow docks on non-adjacent lots.
5. Federal and State law grants power to Monroe County to regulate and restrict
the use of land and buildings in order to promote the safety and general welfare of its
citizens.
6. Monroe County has adopted land use goals, policies, and objectives in a
comprehensive plan to guide policy on building and land use regulations, and to promote
health, safety, and general welfare.
7. The provision of this ordinance is consistent with the Monroe County
Comprehensive Plan and the Principles for Guiding Development in the Florida Keys
Area of Critical State Concern.
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Page I of5
8. The Monroe County Planning Commission held a duly advertised public
hearing on May 24, 2006 and made its recommendations to the board.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONIERS OF MONROE COUNTY, FLORIDA, THAT:
Section!
AMEND ~9.5-4 Definitions as follows:
(A-2) Accessory uses or accessory structures means a use or structure that is
subordinate to and serves a principal use or structure; and
a) is subordinate in area, extent and purpose to the principal use or structure
served; and
b) contributes to the comfort, convenience or necessity of occupants of the
principal use or structure served; and
c) is located on the same lot or on contiguous lots under the same ownership
and in the same land use district as the principal use or structure;
d) Accessory uses include the utilization of yards for home gardens provided
that the produce of the garden is for noncommercial purpose;
e) In no event shall an accessory use or structure be construed to authorize a
use or structure not otherwise permitted in the district in which the principal
use is located, and in no event shall an accessory use or structure be
established prior to the principal use to which it is accessory.
f) Accessory uses shall not include guest units or any other potentially
habitable structure. Habitable structures are considered to be dwelling units
as defined below in this section.
(A-3) Adjacent lands means land sharing a boundary with another land. For purposes of
this Chapter, lands shall be considered adjacent despite an intervening road (except US-
I), right-of-way, easement or canal.
Section 2.
AMEN][) ~ 9.5-256. Aggregation of Development., as follows:
Any development which has or is a part of a common plan or theme of development or
use, including but not limited to an overall plan of development, common or shared
amenitit:s, utilities or facilities, shall be aggregated for the purpose of determining
permitted or authorized development and compliance with each and every standard of
this chapter and for the purpose of determining the appropriate form of development
review.
Lands to be aggregated shall meet the following conditions:
a) share at least 50% or more of the border of the smaller lot or at least 50 linear
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Page 2 of5
feet,
b) are not separated by US-lor roads with more than 2 (two) driving lanes,
c) are not separated by intervening natural or manmade waterways,
dl) if the aggregated lands are separated by a road, the area of the road can not be
used in computing density for housing, open space or floor area unless the
road has been abandoned,
e) must share unity oftitle,
f) development will take place in the least environmentally sensitive area per
S9.5-345(f), and
g) In IS and URM subdivisions only one unit per lot is permitted.
Section 3
AMEN)) ~ 9.5-349. Shoreline setback as follows:
(m) Docking Facilities: Docking facilities shall be permitted, provided that:
(4) Notwithstanding the provisions of section 9.5-4(A-2), docking facilities
may be permitted on lots/parcels within 500 feet in a straight line from the
property line of the principal structure under the following conditions:
(a) the lots/parcels are under common ownership,
(b) a unity of title is recorded,
( c) the principal structure is a lawfully established dwelling unit,
(d) water service may be provided by a single hose bib,
(e) no electric service will be permitted,
(f) entrance to dock must be gated and locked when not in use,
(g) if proposed docking facility is on Tier I designated land, property
must be scarified or disturbed and no clearing of native habitat can be
required for access,
(h) in the event that ownership of the lands containing the dock is severed
from the land containing the principal use/structure, the dock must be
removed and the shoreline restored.
Applications for a docking facility under this Section shall be consistent with the
process, public notification requirement, and appeal process outlined under Section
9.5-523.
Section 4. 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.
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Page 3 of5
Section :5.Conflictinl!: 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 ,6. Effective Date.
This ordinance shall be filed in the Office of the Secretary of State of the State of Florida,
but shall not become effective until a notice is issued by the Department of Community
Affairs or Administrative Commission approving the ordinance pursuant to Chapter 380,
Florida Statutes.
Section 7. Transmittal for Codification
The provisions of this ordinance shall be included and incorporated into the Code of
Ordinanl~es 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.
Remainder of Page Left Blank
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Page 4 of5
Adjacency, Aggregation, and Docking Facilities Text Amendment
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida act a regular meeting held on the --Zll.th day of S<:pt:P11IheT , 2006.
Mayor Charles "Sonny" McCoy
Mayor Pro Tern Dixie Spehar
Commissioner George Neugent
Commissioner Mario Di Gennaro
Commissioner Glenn Patton
Yes
Yes
Yes
Yef:l:
Absent:
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BOARD OF
COMMISSIONERS OF
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COUNTY
MONROE
By:
Mayor, Charles "Sonny" McCoy
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Page 5 of5
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289-1745
MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET, SUITE 101
KEY WEST. FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3663
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
October 19, 2006
Ms. Liz Cloud, Program Administrator
Administrative Code & Weekley
RA Gray Building
500 S Bronough Street
Tallahassee FL 32399-0250
Via Certified Mail 7003 3110 0003 46215390
Dear Ms. Cloud,
Enclosed please a find a certified copy of Ordinance No. 036-2006 amending the
definition of Accessory Uses or Accessory Structures, and Adjacent Landowner in Section 9.5-4
of the Moruroe County Code; amending Section 9.5-256 Aggregation of Development, to create
conditions for Aggregation of Lands and Section 9.5-349 Shoreline Setbacks, to permit docking
facilities on lands within 500 feet of land containing the principal structure under certain
conditions and creating an approval process for such requests; providing for severability;
providing for conflict; and providing for an effective date.
This Ordinance was adopted by the Momoe County Board of County Commissioners at a
Regular Meeting in formal session on September 20, 2006. Please file for record Should you
have any questions please feel free to contact me at (305) 295-3130.
Danny L. Kolhage
Clerk of the Circuit Court
and ex officio Clerk to the
Board of County Commissioners
by: Pamela G. Hancock, D.C.
cc: Growth Management
County Attorney
BOCe
File
. Comptete ttems 1, 2. and 3. Also complete
ttem 4 If RestrIcted Delivery is desired.
. Print your name and address on the reverse
SO ,that we can return the card to you.
. Attach this card to the back of the mailplece,
or on the front If space permits.
1. ArtIcle Addressed to:
Ms. Liz Cloud. Program Admin.
Administrative Code & Weekley
R.A. Gray Building
500 S Bronaugh Street
Tallahassee FL 32399-0250
(Ordinance No. 036-2006)
2.
A. Signature
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/ 102595-02-M-1540
STATE OF FLORIDA
DEPARTMENT OF STATE
STATE LIBRARY AND ARCHIVES OF FLORlDI\
JEB BUSH
Governor
October 24, 2006
Honorable Danny L. Kolhage
Clerk of Circuit Court
Momoe County
500 Whitehead Street, Suite 101
Key West, Florida 33040
Attention: Pamela G. Hancock, Deputy Clerk
Dear Mr. Kolhage:
SUE M. COBB
Secretary of State
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your
letter dated October 19, 2006 and certified copy of Monroe County Ordinance No. 036-2006, which was
filed in this office on October 23,2006.
Sincerely,
Liz Cloud
Program Administrator
LClbpn
DIRECTOR'S OFF1CE
R_A. Gray Building. 500 Suuth Bronough Street. Tallahassee. Florida 32399-0250
850.245.6600 . FAX: 850.245.6735 . TOO: 850.922.4085 . http://dlis.dos.state.ll.us
('OMMUNITY DEVELOPMENT
850.245.6600 . FAX: 850.245.6643
STATE LIBRARY OF FLORIDA
850.245,6600 . FAX: 850.245.6744
5T ATE ARCHIVES OF FLORIDA
850.245.6700 . FAX: 850.488.4894
LEGISLATIVE LIBRARY SERVICE
850.4882812 . FAX: 850AH8.9879
RECORDS MANAGEMENT SERVICES
850.245.6750 . FAX: 850.245.6795
ADMiNISTRATIVE CODE AND WEEKLY
850.245.6270 . FAX: 850.245.62R2
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DCA Final Order No.: DCA06-0R-311
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
In re: MONROE COUNTY LAND
DEVELOPMENT REGULATIONS
ADOPTED BY ORDINANCE NO. 036-2006
FINAL ORDER
The Department of Community Affairs (the "Department") hereby issues its Final Order,
pursuant to 9 380.05(6), Fla. Stat., and 9 380.0552(9), Fla. Stat. (2006), rejecting 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
I. 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 October 31,2006, the Department received for review Monroe County
Ordinance No. 036-2006, adopted by Monroe County on September 20, 2006.
The purpose of this Ordinance is to amend Chapter 9.5 ofthe Land Development
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Regulations as follows: to clarify the definitions of "Accessory Uses" or "Acces~ iJrllCSes" ,'"
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and "Adjacent Landowner" in Section 9.5-4; to amend Section 9.5-256 "Aggrega~6? ~ :~
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Development," to create conditions for aggregation oflands; to amend Section 9.5~it9S': ~
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"Shoreline Setbacks," to permit docking facilities on lands within 500 feet ofland 'iDnt~in~e B
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principal structure under certain conditions; and to create an approval process for such requests.
3.
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4. The Department has reviewed the Ordinance for consistency with the Principles
for Guiding Development ofthe Florida Keys Area of Critical State Concern and the Monroe
County 2010 Comprehensive Plan.
1
DCA Final Order No.: DCA06-0R-311
CONCLUSIONS OF LAW
5. 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. (2006).
6. Monroe County is a local government within the Florida Keys Area of Critical
State Concern. ~ 380.0552, Fla. Stat. (2006) and Rule 28-29.002 (superseding Chapter 27F-8),
Fla. Admin. Code.
7. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development of land. ~ 380.031(8), Fla. Stat. (2006). The
regulations adopted by Ordinance No. 036-2006 are land development regulations.
8. 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), 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.
9. Additionally, section 163.3194(1)(b), Florida Statutes (F.S.), requires that all land
development regulations must be consistent with the local government's adopted comprehensive
plan.
10. Ordinance No. 036-2006, which allows docking facilities to be permitted on
lots/parcels within 500 feet in a straight line of the principal structure and on Tier I designated
lands, is not consistent with the following Principles:
Principle (b): To protect shoreline and marine resources, including mangroves,
coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat.
2
DCA Final Order No.: DCA06-0R-311
Principle (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.
11. Ordinance No. 036-2006 is neutral in effect on the remaining Principles.
12. Ordinance No. 036-2006 is inconsistent with the following provisions ofthe
Monroe County 2010 Comprehensive Plan that discourage development in Tier I properties,
encourage clustering to avoid impacts on sensitive habitats, and provide for preservation of open
space in a contiguous, non-fragmented condition:
Policv 205.2.2
Monroe County shall discourage developments in Tier I and within tropical
hardwood hammock or pinelands of one acre or more in area to protect areas of
native upland vegetation.
Policv 102.1.1
The County shall protect submerged lands and wetlands. The open space
requirement shall be one hundred (100) percent of the following types of
wetlands:
I. submerged lands 2. mangroves 3. salt ponds 4. fresh water wetlands
5. fresh water ponds 6. undisturbed salt marsh and buttonwood wetlands
Allocated density (dwelling units per acre) shall be assigned to freshwater
wetlands and undisturbed salt marsh and buttonwood wetlands only for use as
transferable development rights away from these habitats. Submerged lands, salt
ponds, freshwater ponds, and mangroves shall not be assigned any density or
intensity.
Policv 102.3.2
Monroe County shall require development clustering so as to avoid impacts on
sensitive habitats and to provide for the preservation of all required open space in
a contiguous, non-fragmented condition by requiring the following:
I. when a parcel proposed for development contains more than one (I) habitat
type, all development shall be clustered on the least sensitive portiones) ofthe
parcel: and
3
DCA Final Order No.: DCA06-0R-311
2. development permitted on the least sensitive portion(s) of a parcel shall be
clustered within that portion( s) of the parcel.
Policv 102.9.1
Monroe County shall discourage developments which are proposed in Tier I
through the permit allocation system and the environmental regulations.
Policv 105.2.1
Monroe County shall designate all lands outside of mainland Monroe County,
except for the Ocean Reefplanned development, into three general categories for
purposes of its Land Acquisition Program and smart growth initiatives in
accordance with the criteria in Policy 205.1.1. These three categories are: Natural
Area (Tier I); Transition and Sprawl Reduction Area (Tier II) on Big Pine Key
and No Name Key only; and Infill Area (Tier III). The purposes, general
characteristics, and growth management approaches associated with each tier are
as follows:
1. Natural Area (Tier I): Any defined geographic area where all or a significant
portion ofthe land area is characterized as environmentally sensitive by the
policies of this Plan and applicable habitat conservation plan, is to be designated
as a Natural Area. New development on vacant land is to be severely restricted
and privately owned vacant lands are to be acquired or development rights retired
for resource conservation and passive recreation purposes. However, this does not
preclude provisions of infrastructure for existing development. Within the Natural
Area designation are typically found lands within the acquisition boundaries of
federal and state resource conservation and park areas, including isolated platted
subdivisions; and privately-owned vacant lands with sensitive environmental
features outside these acquisition areas.
13. Ordinance No. 036-2006 is inconsistent with the Principles for Guiding
Development ofthe Florida Keys Area of Critical State Concern and Monroe County's
Comprehensive Plan.
4
DCA Final Order No.: DCA06-0R-311
WHEREFORE, IT IS ORDERED that Ordinance No. 036-2006 is found to be
inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical
State Concern, and is found to be inconsistent with the Monroe County Comprehensive Plan, and
is hereby REJECTED.
DONE AND ORDERED in Tallahassee, Florida.
racyD. S r
State PI . g 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
5
DCA Final Order No.: DCA06-0R-311
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, 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 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.
6
DCA Final Order No.: DCA06-0R-311
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 3lIJ.9; correct copies have been furnished
to the persons listed below by the method indicated thi~ day of December, 2006.
Bv U.S. Mail:
Honorable Mario DiGennaro
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
ArefJoulani
Director
Planning and Environmental Resources
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
Bv Hand Delivery or Interagencv Mail:
Clark Turner, ACSC Administrator
Richard E. Shine, Assistant General Counsel
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