Ordinance 035-2007
ORIGINAL
ORDINANCE No. 035-2007
AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS REPEALING SECTIONS 9.5-171 THROUGH 9.5-
174 OF THE MONROE COUNTY CODE CONCERNING
BENEFIClAL USE DETERMINATIONS; PROVIDING FOR NEW
REGULATIONS CONCERNING BENEFICIAL USE
DETERMINATIONS; PROVIDING A FORUM FOR RELIEF;
PROVIDING AN APPLICATION PROCESS; PROVIDING FOR A
HEARING AND RECOMMENDATION BY A SPECIAL MASTER;
PROVIDNG FOR FORWARDING SUCH RECOMMENDATION TO
THE BOARD OF COUNTY COMMMISSIONERS FOR A HEARING;
PROVIDING FOR STANDARDS, BURDEN OF PROOF AND FORMS
OF RELq;F; PROVIDING FOR CODIFICATION, SEVERABILITY
AND REPfAL OF INCONSISTENT PROVISIONS; PROVIDING FOR
FORWARDING OF THIS ORDINANCE TO THE DEPARTMENT OF
COMMUNITY AFFAIRS AND THE SECRETARY OF STATE;
PROVIDING FOR AN EFFECTIVE DATE
Whereas, it is the intent of the Board of County Commissioners that land owners in
Monroe County have a beneficial use of their property, consistent with the U.S. and
Florida Constitutions; and
Whereas, Policy 101.18.5 of the Momoe County Year 2010 Comprehensive Plan (Plan)
provides that neither the provisions of the Plan nor the Land Development Regulations
(the LDRs) shall deprive a property owner of all reasonable economic use of a parcel of
real property; and
Whereas, Article VI, Division 2, LDRs, is intended to provide a non-judicial procedure
by which a property owner may seek relief from the literal application of applicable Plan
and LDR provisions, when such application is alleged to have the effect of denying all
economically reasonable use of the property; and
Whereas, the Board of County Commissioners wishes to update Article VI, Division 2 in
order to provide additional guidance to applicants and County staff for processing
Beneficial Use Determination applications, consistent with applicable law; and
Whereas, the Board of County Commissioners has determined that these amendments
will ensure a fair and efficient forum through which property owners may apply for relief
from the adoption or application of Plan policies or LDR provisions, through a Beneficial
Use Determination process, consistent with the provisions of the Plan and applicable law;
and
ORIGINAL
Whereas, the Board of County Commissioners finds that this revised Ordinance is and
shall be implemented consistent with the provisions of the Plan and includes all standards
and remedies available pursuant to the Plan;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY :
Section 1. Current Sections 9.5-171 through 9.5-174 of the Monroe County Code are
hereby repealed in their entirety.
Section 2. The following provisions of the Monroe County Code are hereby added:
DMSION 2. BENEFICIAL USE DETERMINATIONS
Sec.9.5-171. Generally.
If, after a final decision or action by the County, including available variances, a
landowner is of the opinion that the adoption or application of a County land
development regulation or comprehensive plan policy has caused a taking of the
landowner's property, the procedures of this division shall be used prior to seeking relief
from the courts.
Sec. 9.5-172. Purpose and intent.
The purpose of this division is to ensure that the adoption or application of a County land
development regulation or comprehensive plan policy does not result in an
unconstitutional taking of private property.
The intent of the Board of County Commissioners is that this division provide a means to
resolve a landowner's claim that a land development regulation or comprehensive plan
policy has had an unconstitutional effect on property in a non-judicial forum. This
division is not intended to provide relief related to regulations promulgated by agencies
other than the County or to provide relief for claims that are not cognizable in court at the
time of application under this division. Further, the procedures of this division are not
intended, nor do they create, a judicial cause of action.
Sec. 9.5-173. Exhanstion.
Relief under this division cannot be established until the landowner has received a final
decision on development approval applications from the County, including building
permit allocation system applications, appeals, administrative relief pursuant to section
9.5-124.7, and other available relief, exceptions, or variances, unless the applicant asserts
that a land development regulation or comprehensive plan policy, on its face, meets the
standards forreliefin section 9.5-178.
Sec.9.5-174. Application; exhanstion; sufficiency and contents of application.
(a) Generally. An application for a beneficial use determination may be made to the
planning department by filing an application and an application fee as established by the
Board.
(b) Contents of application. The application shall be submitted in a form established
by the County and shall include the following:
PAGE 2 OF 8
ORIGINAL
(I) Contact information. The name, address, and phone number of the
landowner and applicant or agent.
(2) Legal description. A legal description and the real estate or parcel
number for the property.
(3) Letler of agency. If a person other than the landowner is requesting relief
pursuant to this division, a notarized letter of agency from the landowner
authorizing the person to represent them with respect to the application. Except
as specifically provided herein, the landowner will be bound by the
representations, obligations, and agreements made by the landowner's agent in the
course of the beneficial use determination process. The term "applicant" as used
in this division refers to the landowner or the landowner's agent, as applicable.
(4) Date of acquisition, otTers to purchase, attempts to sell. Documentation
of the date of acquisition, the price incurred to acquire the property, the date and
amount of any offers by any person, corporation, governmental entity, or
association to acquire the property , and any attempts by the landowner to sell the
property.
(5) Land development regulation or comprehensive plan policy. A
statement describing the land development regulation, comprehensive plan policy,
or other final action of the County, which the applicant believes necessitates relief
under this division, including the effective date of the land development
regulation or comprehensive plan policy and/or the date of the final action by the
County related to the property. The application shall identify the subject land
development regulations or comprehensive plan policies of the County by section
and number.
(6) Desfription of land. A description of the property's physical and
environmental features, total acreage, and use presently, at the time of acquisition,
and upon the effective date of the land development regulation or comprehensive
plan policy or other final action the applicant believes necessitates relief under
this division.
(7) Improvements to land. Evidence of any investments made to improve the
property, the date the improvements were made, and the cost of the
improvements.
(8) Desrription of allowable uses. A description of the type and extent of
land uses allowed on the property, from the time the applicant acquired the
property until the date of application under this division, including allowable
density, permitted and conditional uses, open space ratios, and other factors
affecting the property's development potential.
(9) Requested relief. A statement regarding the form of relief requested by
the landowner, pursuant to section 9.5-179.
(10) Maps. Maps shall be included in the application, which show the property
presently, at the time of acquisition, and upon the effective date of the land
development regulation, comprehensive plan policy, or other action of the County
the applicant believes necessitates relief under this division. Maps shall indicate
PAGE30F8
ORIGINAL
the land u&e designation, future land use designation, aerial photography, and
environmeqtal conditions and habitat on the property at the above times.
(11) Previous development applications and appeals. A description of all
efforts to seek approval to develop the property, including date of application;
name of the local, state, or federal permitting agency; nature of approval, denial,
or appeal sought; disposition; and the date of disposition.
(12) Agency approvals. Evidence of whether the applicant has received
necessary approvals from governmental agencies other than the County, which
are required in order to undertake development of the property, including, as
applicable, evidence that approvals from other agencies are not required.
(13) Signature of landowner and agent. The signature of Iandowner(s) and
agent( s), attesting to the accuracy of the statements and representations made in
the application.
(14) Additional materials. Any other appraisals, studies, or evidence
supporting the applicant's contention that relief under this division is appropriate,
including appraisals related to any alleged diminution in fair market value of the
property.
(d) Standards applicable to landowner and landowner's representative.
(1) The landowner and the landowner's representative shall exercise due
diligence in the filing of and legal bases asserted pursuant an application for relief
under this division.
(2) The signature upon the application by the landowner and the landowner's
representative shall constitute a certification that the landowner and landowner's
representative have undertaken due diligence in the filing of the application, that
to the best of his or her knowledge the application is supported by good grounds
under applicable laws, and that the application has been filed in good faith,
consistent with the purpose and intent of this division.
(3) The landowner and the landowner's representative shall have a continuing
obligation throughout the proceedings to correct any statement or representation
found to have been incorrect when made or which becomes incorrect by virtue of
changed circumstances.
(4) If a claim for relief pursuant to this division is based upon facts the
landowner or the landowner's representative knew or should have known were
not correct or upon assertions of law that were frivolous, the special master may
dismiss the application and may recommend any remedy or penalty to the Board
provided by law or ordinance.
(e) Determination of sufficiency. Within fifteen (15) calendar days of accepting the
application, the plllnning director, or the planning director's designee, shall determine if
the application is complete and includes the materials and information listed in subsection
(b)(I)-(13) above. The special master may require the landowner or the County to
provide additional information in order to make a determination under this division and
may conduct a hejlTing on whether the application should be dismissed for failure to
PAGE 4 op8
ORIGINAL
include information necessary to make a recommendation, based on the standards set
forth in this division.
(1) Determined insufficient. If the planning director determines the
application is not complete, a written notice shall be mailed to the applicant
specifying the application's deficiencies. No further action shall be taken on the
application until the deficiencies are remedied. If the applicant fails to correct the
deficiencies within thirty (30) calendar days of a notice of deficiencies, the
application shall be considered withdrawn, and the application fee shall be
refunded to the applicant, upon request.
(2) Determined sufficient. When the application is determined sufficient, the
planning director shall notify the applicant in writing and, within sixty (60)
calendar days, forward the application to a special master to set a hearing date.
The planning director may forward to the special master additional materials,
applications, or decisions related to the application, including recommended
forms of relief, consistent with this division.
Sec. 9.5-175. Action by the special master.
(a) Establishlllent of date for hearing and notice. The special master shall
schedule and hold a hearing on an individual beneficial use determination application
within ninety (90) calendar days of receipt of the complete application from the planning
director.
(b) Hearing. At the hearing, the landowner or landowner's representative shall
present the landowner's case and the planning director or the planning director's
representative shall represent the County's case. The special master may accept briefs,
evidence, reports, or proposed recommendations from the parties.
(c) Recomme'ldation of the special master. Within sixty (60) calendar days of the
close of the hearing, the special master shall prepare and transmit in writing to the
planning director and the landowner, or their representatives, a recommendation
regarding the application, based on the evidence submitted and the standards set forth in
sections 9.5-178 aqd 9.5-179.
(1) If the special master's recommendation is that relief is not appropriate, the
special master's recommendation shall specify the basis for the recommendation.
(2) If the special master's recommendation is that relief is appropriate, the
special master's recommendation shall:
a. Recommend a form of relief, pursuant to section 9.5-179.
b. Indicate the basis for the recommendation, including, as
applicable:
1. identification of the County land development regulation,
comprehensive plan policy, or other action that resulted in the
recqmmendation for relief; and
PAGE50F8
ORIGINAL
2. the date the land development regulation, comprehensive
pial) policy, or other final action of the County affected the property so as
to necessitate relief.
Sec.9.5-176. Action by the planning director.
Based on the recommendations of the special master, the planning director shall prepare
the item for consideration by the Board of County Commissioners. The planning director
may not disturb or alter the recommendations of the special master. Within thirty (30)
calendar days of receipt of the recommendations of the special master, the planning
director shall forward the special master's recommendation to the Board to set a public
hearing on the malier. The planning director may include with the recommendation a
proposed process and schedule for implementing the special master's recommendation.
Sec. 9.5-177. Action of the Board.
I
Following receipt of the matter from the planning director, the Board shall set the matter
for a public hearing. The County shall provide notice and the applicant shall be provided
an opportunity to be heard prior to the decision of the Board. The recommendation of the
special master is not binding on the Board. At the hearing, the Board, by resolution, shall
approve, modify, rceverse, or approve with conditions, the recommendations of the special
master, based on the standards of sections 9.5-178 and 9.5-179. The resolution shall:
(a) state the date, if any, upon which any resolution granting relief will cease to be in
effect;
(b) state that neither the Board's resolution nor any process or evidence associated
with this division is an admission ofa taking of property;
(c) direct County staff to undertake any additional steps necessary to implement the
resolution; and
(d) address other matters necessary to implement the purpose and intent of this
division.
Sec. 9.5-178. Beneficial use standards.
(a) Standard. In furtherance of the purpose and intent of this division, and
consistent with Policy 101.18.5 of the comprehensive plan, relief under this division may
be granted where a court of competent jurisdiction likely would determine that a final
action by the County has caused a taking of property and a judicial finding of liability
would not be precluded by a cognizable defense, including lack of investment-backed
expectations, statutes of limitation, laches, or other preclusions to relief. Whether such
liability, at the time of application under this division, is likely to be established by a
court should be determined based on applicable statutory and case law at the time an
application is considered under this division.
(b) Burden. The applicant shall have the burden of showing that relief under this
division is appropriate.
9.5-179.
Granting of relief.
PAGE60F8
ORIGINAL
(a) General. If the Board determines that relief is appropriate under this division,
relief may be granted, as provided in this section and consistent with the comprehensive
plan.
(b) Forms of relief. In order to avoid an unconstitutional result and to provide a
landowner with an economically viable use of property pursuant to this division, the
special master may recommend and the Board may allow for additional use(s), density, or
relief beyond that allowed by a literal application of the land development regulations or
comprehensive plan on the particular property, which may include:
(I) Redesignation of the property on the land use map or future land use map;
(2) Permits for development despite the literal application of the land
development regulations and comprehensive plan, although permits issued
pursuant to this section shall be subject to applicable construction deadlines and
expiration dates under chapter 6 of the Momoe County Code;
(3) Transferable development rights (TDRs);
(4) Eligibility for dedication of the property pursuant to section 9.5-
122.3(a)(5);
(5) Repeal or amendment of the land development regulation or
comprehensive plan policy affecting the subject property;
(6) Any other economically beneficial use of the property or relief the Board
determines appropriate and adequate under section 9.5-178 and the
comprehensive plan; or
(7) Any combination of the above.
(c) Minimum increase. Relief granted pursuant to this division shall be the
minimum necessary to comply with section 9.5-178. The highest, common, or expected
use, is not intended as an appropriate remedy, unless expressly required by applicable
statute or case law.
Section 3. Severability. The provisions of this Ordinance are declared to be severable
and if any section, sentence, clause or phrase of this Ordinance shall for any reason be
held to be invalid or unconstitutional, such decision shall not affect the validity of the
remaining sections, sentences, clauses, and phrases of this Ordinance but they shall
remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part.
Section 4. Repeal of Conflicting Provisions. The provisions of the Momoe County
Code and all Ordinances or parts of Ordinances in conflict with the provisions of this
Ordinance are hereby repealed.
Section 5. Inc1usiQn in the Code. The provisions of this ordinance shall be included and
incorporated in the Code of Ordinances of Momoe County, Florida as an addition or
amendment thereto, and shall be appropriately numbered to conform to the uniform
number system of the Code.
PAGE 7 OFS
ORIGINAL
Section 6. Approval by the State Department of Community Affairs. The provisions
of this Ordinance constitute a "land development regulation" as State law defines that
term. Accordingly, the Monroe County Clerk is authorized to forward a copy of this
Ordinance to the State Department of Community Affairs for approval pursuant to
Sections 380.05(6) and (II), Florida Statutes and to the Secretary of State forthe State of
Florida, as required.
Section 7. Effective Date. This Ordinance shall be effective immediately upon approval
by the State Department of Community Affairs pursuant to Chapter 380, Florida Statutes.
PASSED AND ADOPTED, by the Board of County Commissioners of Monroe County,
Florida at a regular meeting of said Board on the 18th day of Julv ,2007.
Mayor Mario DiGennaro
Mayor Pro Tern Dixie M. Spehar
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner Sylvia Murphy
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BOARD OF COUNTY
COMMISSIONERS OF MONROE
COUNTY, FLORIDA
By:
~j(}~
Mayor Mario DiGennaro
(SEAL)
ATTEST: Danny L. Kolhage, CLERK
Ba~
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
SUSAN M. GRI
ASSISTANT COUNT HORNEY
Date ?~ fA.. .JAG f
Deputy Clerk
PAGE80F8
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
August 16, 2007
Ms. Liz Cloud, Program Administrator
Administrative Code & Weekly
R.A. Gray Building
500 S Bronough Street
Tallahassee FL 32399-0250
Via Certified Mail 7005 1160 0000 3841 2488
Dear Ms. Cloud,
Enclosed please find certified copies of the following Ordinances:
Ordinance No. 035-2007 repealing Sections 9.5-171 through 9.5-174 of the Momoe
County Code concerning Beneficial Use Determinations; providing for new Regulations
concerning Beneficial Use Determinations; providing a forum for relief; providing an application
process; providing for a hearing and recommendation by a Special Master; providing for
forwarding such recommendation to the Board of County Commissioners for a hearing;
providing for standards, burden of proof and forms of relief; providing for codification,
severability and repeal of inconsistent provisions; providing for forwarding of this Ordinance to
the Department of Community Affairs and the Secretary of State; providing for an effective date.
Ordinance No. 036-2007 approving a request by Pine and Palms Trailer Park Association
for a Land Use District Map amendment from Urban Residential Mobile Home-Limited
(URM-L) to Urban Residential Mobile Home (URM) for property legally described as Lots 1-16,
Maloney Subdivision, Pine & Palms Trailer Park, Stock Island, Section 35, Township 67, Range
25, Momoe County, Florida, having real estate numbers: 00126100.000101, 00126100.000102,
00126100.000103,00126100.000104, 00126100.000105, 00126100.000106, 00126100.000107,
00126100.000108, 00126100.000109, 00126100.000110, 00126100.000111, 00126100.000112,
00126100.000113,00126100.000114,00126100.000115, and 00126100.000116.
Ordinance No. 037-2007 approving the request by Lee Robert Rohe, on behalf of Ruben
Investment Properties, to amend the Land Use District Map for the following properties from
Ordinance No. 035-2007 to 038-2007
Improved Subdivision (IS) to Sub Urban Commercial (Se). The properties are physically
located on First Street, Big Coppitt Key and are legally described as Block 18, Lot I,
Johnsonville Subdivision, PB I-53, Big Coppitt Key, Momoe County, Florida and part
Government Lot 3, Big Coppitt Key, Momoe County, Florida. The real estate numbers are
00153240.000000 and 00121660.000000, at approximate mile marker 10.
Ordinance No. 038-2007 providing for a moratorium on the acceptance of development
applications for the redevelopment of mobile home parks within unincorporated Momoe County;
providing for exemptions; providing for vested rights; providing for appeals; providing for
exhaustion of administrative remedies; providing for a commencement date of May 16, 2007 and
an expiration date of November 16, 2007, or when amendments to the mobile home park
redevelopment regulations become effective, whichever comes first; providing for transmittal to
the Department of Community Affairs; providing for severability; and providing for an effective
date.
These Ordinances were adopted by the Momoe County Board of County Commissioners
at a Regular Meeting held in formal session on July 18, 2007. 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: Via E-Mail to the following:
Growth Management
County Attorney
BOCC
File
FLORIDA DEPARTMENT Of STATE
. .
CHARLIE CRIST
Governor
STATE LIBRARY AND ARCHIVES OF FLORIDA
KURT S. BROWNING
Secretary of State
August 22, 2007
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:
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your
letters dated August 16, 2007 and certified copies of Momoe County Ordinance Nos. 028-2007, 029-
2007,031-2007,032-2007,035-2007,036-2007,037-2007 and 038-2007 which were filed in this office
on August 20,2007.
Sincerely,
If!its ~~~
Liz Cloud
Program Administrator
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DIRECTOR'S OFFICE
R.A. Gray Building . 500 South Bronough Street . Tallahassee, Florida 32399-0250
850.245.6600 . FAX; 850.245.6735 . TDD: 850.922.4085 . http://dlis.dos.state.fl.us
COMMUNITY DEVELOPMENT
850.245.6600 . FAX: 850.245.6643
STATE LIBRARY OF FLORIDA
850.245.6600 . FAX: 850.245.6744
STATE ARCHIVES OF FLORIDA
850.245.6700 . FAX; 850.488.4894
LEGISLATIVE LIBRARY SERVICE
850.488.2812 . FAX: 850.488.9879
RECORDS MANAGEMENT SERVICES
850.245.6750 . FAX: 850.245.6795
ADMINISTRATIVE CODE AND WEEKLY
850.245.6270 . FAX: 850.245.6282
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See Reverse for InstructIOns
SENDER: COMPLETE THIS SECTION
. Complete items 1, 2. and 3. Also complete
item 4 if Restricted Delivery is desired.
. Print your name and address on the reverse
~;O that we can return the card to you.
. Attach this card to the back of the mailpiece,
or on the front jf space permits.
1. Article Addressed to:
Program Administrator
Administrative Code and Weekly
R,A, Gray Building
500 South Bronough Street
Tallahassee. Florida 32399-0250
2. Al1icle Number
(Tiansfer from service label)
PS Form 3811 , February 2004
COMPLETE THIS SECTION ON DELIVERY
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D. Is delivery address different from item 11 0 Yes
If YES, entelA!l&o01?ow: 0 No
CLEARED
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4. Restricted Delivery? (Extra Fee) 0 Yes
7005 1160 DODD 3841 2488
102595-02-M-1540
Domestic Return Receipt
DCA Final Order No.: DCA07-0R-263
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
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In re: MONROE COUNTY LAND
DEVELOPMENTREGY1ATIONS
--AbOPTED BY MONROE COUNTY
ORDINANCE NO. 035-2007
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The Department of Community Affairs (the "Department") hereby issues its Final Order,
pursuant to SS 380.05(6), Fla. Stat., and S 380.0552(9), Fla. Stat. (2006), approving a land
development regulation adopted by a local government within the Florida Keys Area of Critical
State Concern as set forth below.
FINDINGS OF FACT
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 August 29, 2007, the Department received for review Monroe County
Ordinance No. 035-2007 ("Ord. 035-2007"), adopted by Monroe County on July 18, 2007.
3. This Ordinance does repeal the current Sections 9.5-174 through 9.5-174 of the
Monroe County Code. Ord. 035-2007 does add provisions 9.5-171 through 9.5-179 to the
Monroe County Code. The purpose of this Ordinance is to provide additional guidance to
applicants and County staff for processing Beneficial Use Determination applications and to
provide a non-judicial procedure by which a property owner may seek relief from the literal
application of applicable Plan and LDR provisions including but not limited to setbacks, buffer
yards and clustering when such application is alleged to have the effect of denying all
economically reasonable use of the property.
4. Ordinance 035-2007 is consistent with the 2010 Monroe County Comprehensive
Plan.
DCA Final Order No.: DCA07-0R-263
CONCLUSIONS OF LAW
6. The Department is required to approve or reject land development regulations that
are enacted, amended, ouescindedhYCallY-!GcaI governmentilTtlle Florida *eys Area ofClilical --
State Concern. S 380.05(6), Fla. Stat., and S 380.0552(9), Fla. Stat. (2006).
7. Monroe County is a local govenunent within the Florida Keys Area of Critical
State Concern. S 380.0552, Fla. Stat. (2006) and Rule 28-29.002 (superseding Chapter 27F-8),
Fla. Admin. Code.
8. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development of land. S 380.031 (8), Fla. Stat. (2006). The
regulations adopted by Ord. 035-2007 are land development regulations.
9. 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 S 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.
10. Ord. 035-2007 promotes and furthers the following Principles:
(a) To strengthen local govenunent capabilities for managing land
use and development so that local govenunent is able to
achieve these objectives without the continuation ofthe area of
critical state concern designation.
(d) To ensure the maximum well-being ofthe Florida Keys and its
citizens through sound economic development.
(I) To protect the public health, safety, and welfare of the citizens
ofthe Florida Keys and maintain the Florida Keys as a unique
Florida Resource.
II. Ord. 035-2007 is consistent with the Principles for Guiding Development as a
whole.
2
DCA Final Order No.: DCA07-OR-263
WHEREFORE, IT IS ORDERED that Ord. 035-2007 is found to be consistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby APPROVRTZ
This Order becomes effective 21 days after publication in the Florida Administrative
Weekly unless a petition is filed as described below.
•
DONE AND ORDERED in Tallahassee, Florida.
CHARLES GAUTHIER, AICP
Director, Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING
PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE 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
3
DCA Final Order No.: DCA07-0R-263
CHOSEN TO mSTIFY 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
. A1?MINISTRATIY~J:IEARING BEFORE ANADMTNTSIRATLVE 1 A W.JUDGE.GF-+HE __m
. - 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.
4
DCA Final Order No.: DCA07-0R-263
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original ofthe foregoing Final Order has been filed with
the undersigrI~ <iesignated Agenc)' ClerLandJ:haUrue anci~orrect copieshave-been-fumished----
-tOthe persons listed below by the method indicated thi~ tlday of October, 2007.
"Ji i)~ (
V[alL ~ '-t.. ~) //"-
Paula Ford, Agency Cler
By U.S. Mail:
Honorable Charles McCoy
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
Acting Director
Planning and Environmental Resources
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
By Hand Delivery or Interagency Mail:
Clark Turner, ACSC Administrator, DCA Tallahassee
Richard E. Shine, Assistant General Counsel, DCA Tallahassee
5