Ordinance 040-2007
'ORDINANCE N'O. 040-2007
AN 'ORDINANCE BY THE M'ONR'OE C'OUNTY B'OARD 'OF C'OUNTY
C'OMMISSI'ONERS AD'OPTING AN AMENDMENT T'O THE
M'ONR'OE C'OUNTY C'ODE; DELETING SECTIONS 9.5-66
C'ONDlTI'ONAL USE PERMITS AND BULK REGULATI'ONS AND
9.5-282 RESIDENTIAL DWELLING PERMITS AND BULK
REGULATIONS; AND AMENDING SECTION 9.5-523 T'O INCLUDE
ADMINISTRATIVE WAIVERS; CLARIFYING PR'OCEDURES,
STANDARDS, AND ESTABLISHING N'OTIFICATION
PR'OCEDURES F'OR THE APPR'OVAL 'OF ADMINISTRATIVE
WAIVERS; PR'OVIDING F'OR C'ODlFICATION, SEVERABILITY
AND REPEAL 'OF INC'ONSISTENT PR'OVISI'ONS; PR'OVIDlNG F'OR
FORWARDING 'OF THIS 'ORDINANCE T'O THE DEPARTMENT 'OF
C'OMMUNITY AFFAIRS AND THE SECRETARY 'OF STATE;
PR'OVIDING F'OR AN EFFECTIVE DATE
WHEREAS: The appeal of an administrative waiver at its March 20, 2007 public
hearing prompted the Monroe County Planning Commission to direct staff to establish
notification procedures for the proposed approval of administrative waivers; and
WHEREAS: The Planning Department is proposing amendments to the Monroe
County Code to clarify the procedures and standards for administrative waivers, and
WHEREAS: On April 24th and May OS'h proposed text amendments were
reviewed by the Development Review Committee and staff proposed additional revisions
to clarify who is responsible for bearing the cost of public hearings for appealing
administrative waivers and that the setback was to be measured from the front lot line to
the furthermost projection main buildings; and
WHEREAS: On May 9th and the 23'd, and on June 13th and the 27th, 2007 the
Planning Commission heard the proposed text amendments, and passed a
recommendation to the BOCC to adopt the amendment to this section of the code as
proposed by staff, and to incorporate the changes and revisions suggested by the Planning
Commission.
WHEREAS: The Monroe County Board of County Commissioners may adopt
changes to the land development regulations based on factors established pursuant to
Section 9.5-511 (d)(5)(b), and
WHEREAS: The proposed text amendment is consistent with Section 9.5-
511(d) (5)(b)(v) recognition of a need for additional detail or comprehensiveness, and
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Page 1 of5
WHEREAS: The proposed text amendment effects a change in administrative
procedures and is not related to any specific element of the comprehensive plan; and
WHEREAS: The text amendment furthers Principle (a) of the Principles for
Guiding Development in the Florida Keys Area of Critical State Concern: TO' strengthen
lacal government capabilities far managing land use and develapment sa that lacal
gavernment is able to' achieve these abjectives withaut the cantinuatian af the area af
critical state cancern designatian in that it furthers the ability of Monroe County to
manage its own affairs and become more self governing; and
WHEREAS: The proposed text amendment is in the interest of public welfare in
that it promotes and protects community character, and public safety in that it protects
site triangles for traffic safety.
NOW, THEREFORE, BE IT ORDAINED BY THE MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS, FLORIDA, THAT:
Section 1. The preceding findings of fact and conclusions of law support the Board's
decision to adopt the following amendments to the text of the Momoe County Code.
Section ;~. Sections 9.5-66 and 9.5-282 of the Monroe County Code are hereby deleted as
follows:
(Ord. No. 33-1986, ~ 5-306)
Section 3. Section 9.5-523 of the Monroe County Code is hereby amended as
follows:
Sec. 9.5-:523. Variances and waivers granted by the planning director.
(a) Purpase: The purpose of this section is to establish authority, procedures, and
standards for the granting of variances and waivers from certain requirements of this
chapter.
(b) Autharity and Scape af Autharity: The planning director is authorized to grant the
following variances and waivers according to the standards of paragraphs (f) and (g) of
this section:
(I) Reduction in the front, and rear yard, non-shoreline setback requirements in
division 4, article VII by no more than ten (10) feet and side yard setback by
no more than twenty (20) percent.
(2) Reduction in the off-street parking requirements in division 9, article VII by
no more than twenty (20) percent.
(3) Reduction in the bufferyard width requirements for Class C, D, E, and F
district boundaries. major streets, and scenic corridors in division II, article
VII by no more than ten (10) percent.
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Page 2 of 5
(4) Reduction by no more than ten (10) percent in the total area of landscaping
required for off-street parking and loading in division 9, article VII.
(c) Application: An application for a variance or waiver under this section shall be
submitted to the planning director on a form approved by the planning director.
(d) Procedures: The planning director shall normally complete his review of the entire
application and render a proposed decision within fifteen (15) working days of receipt of
the application.
(e) Decision: The planning director's decision shall be in writing. Except for the special
accessibility setback variance as provided for in paragraph (h) of this section, a variance
shall only be granted if all of the standards in paragraph (f) are met.
(f) Standards for variances: The planning director shall grant a variance under this
section if the applicant demonstrates that all of the following standards are met:
(I) The applicant shall demonstrate a showing of good and sufficient cause;
(2) Failure to grant the variance would result in exceptional hardship to the
applicant;
(3) Granting the variance will not result in increased public expenses, create a
threat to public health and safety, create a public nuisance, or cause fraud or
victimization of the public;
(4) Property has unique or peculiar circumstances, which apply to this property,
but which do not apply to other properties in the same zoning district;
(5) Granting the variance will not give the applicant any special privilege denied
other properties in the immediate neighborhood in terms of the provisions of
this chapter or established development patterns;
(6) Granting the variance is not based on disabilities, handicaps or health of the
applicant or members of his family;
(7) Granting the variance is not based on the domestic difficulties of the applicant
or his family; and;
(8) The variance is the minimum necessary to provide relief to the applicant.
(g) Standards for waivers; The director of planning may approve a waiver that modifies
the minimum front yard requirements set out in section 9.5-281 provided the applicant
demonstrates that:
(I) the existing setback average , as measured pursuant to Section 9 .5-4(S-4)
MCC, on the street within the land use district in which the subject property is
located is less than the land use district standard, as established in Section 9.5-
281, and
(2) the waiver will not result in a setback that is less than the existing front yard
setback to the further most projection of the main building that is closest to the
front lot line on a contiguous lot on either side of the subject property, and
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Page 3 of5
(3) the waiver is for an amount not greater than twenty (20) percent of the land
use district standard as established in Section 9.5-281 MCC, and
(4) in the event that a contiguous lot on either side of the subject property is
vacant, the land use district standard shall apply.
(h) Special Accessibility Setback Variance: Notwithstanding the standards in
subparagraphs (f)(4)(5) (6) and (7) of this section, a variance from the yard setback
requirements may be granted for an elevator or wheelchair lift or ramp required to allow
access to the elevated dwelling unit of a disabled applicant or disabled member of his
household.
(i) Public Notification of Proposed Approval: After determining that an application for
a variance or a waiver complies with the requirements of this section, the planning
director shall provide written notice of proposed approval and require posting as follows:
(1) The planning director shall provide written notice by regular mail to owners
of real property located within three hundred (300) feet of the property that is
the subject of the proposed variance or waiver.
(2) The applicant shall post the property of the proposed variance or waiver with
a waterproof sign of at least four (4) square feet in front surface area, which is
lettered so as to be easily visible from all public streets and public ways
abutting the property. The property shall remain posted for no less than thirty
(30) consecutive calendar days beginning within five (5) working days of the
date that the application is deemed to be in compliance by the planning
director.
(3) The above notice and posting shall provide a brief description of the proposed
variance or waiver and indicate where the public may examine the application.
The cost of providing notice and posting shall be borne by the applicant.
(j) Decision by the Planning Director: After thirty (30) calendar days of proper
posting, review of all public responses to the variance or waiver application and upon a
finding that the proposed variance or waiver and application have or have not complied
with the requirements and standards of this section, the planning director shall issue a
written variance decision.
(k) Public Hearing by the Planning Commission: If requested in wntmg by the
applicant, or an adversely affected owner or resident of real property located in Monroe
County during the required thirty (30) calendar days of posting, a public hearing shall be
scheduled on the application for a variance or waiver after the 30th day of posting, but
before the 60th day after posting. All costs of the public hearing shall be the responsibility
of the applicant for the variance or waiver. The public hearing shall be conducted in
accordance with section 9.5-45 and provisions of section 9.5-524.
Section 4. 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
Revised 06.29.07
Page 4 of5
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 5. Repeal of Conflicting Provisions. The provisions of the Monroe
County Code and all Ordinances or parts of Ordinances in conflict with the provisions of
this Ordinance are hereby repealed.
Section 6. Inclusion in the Code. The provisions of this ordinance shall be
included and incorporated in the Code of Ordinances of Monroe County, Florida as an
addition or amendment thereto, and shall be appropriately numbered to conform to the
uniform number system of the Code.
Section 7. 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 (11), Florida Statutes and to the Secretary of State for the State of
Florida, as required.
Section 8. 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 August ,2007.
Mayor Mario DiGennaro
Mayor Pro Tern Dixie M. Spehar
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner Sylvia Murphy
Yes
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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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
September 7,2007
Ms. Liz Cloud, Program Administrator
Administrative Code & Weekly
R.A. Gray Building
500 S Bronough Street
Tallahassee FL 32399-0250
Via Certified Mail 7005 1160000038412051
Dear Ms. Cloud,
Enclosed please find certified copies of the following Ordinances:
Ordinance No. 039-2007 amending Section 9.5-247(1) of the Momoe County Code;
Commercial Fishing Special District 12 (CFSD-12 located on Big Pine) to clarify that there is no
requirement to reside in CFSD-12 in order to engage in commercial fishing operations such as
processing and packaging, trap storage and construction; 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. 040-2007 adopting an amendment to the Momoe County Code; deleting
Sections 9.5-66 Conditional Use Permits and Bulk Regulations and 9.5-282 Residential Dwelling
Permits and Bulk Regulations; and amending Section 9.5-523 to include Administrative
Waivers; clarifying procedures, standards, and establishing notification procedures for the
approval of administrative waivers; 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 Nos. 039-2007 to 040-2007
These Ordinances were adopted by the Monroe County Board of County Commissioners
at a Regular Meeting held in formal session on August 15,2007. 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
DCA Final Order No.: DCA07-0R-268
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
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In re: MONROE COUNTY LAND
DEVELOPMENT REGULATIONS
ADOPTED BY MONROE COUNTY
ORDINANCE NO. 040-2007
FINAL ORDER
The Department of Community Affairs (the "Department") hereby issues its Final Order,
pursuant to ~~ 380.05(6), Fla. Stat., and ~ 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 September 13, 2007, the Department received for review Monroe County
Ordinance No. 040-2007 ("Ord. 040-2007"), adopted by Monroe County on August 18,2007.
3. The purpose of the Ordinance is to amend the Monroe County Code to delete
Section 9.5.-66, Conditional Use Permits and Bulk Regulations and Section 9.5-282 Residential
Dwelling Permits and Bulk Regulations; and amend Section 9.5-523 to include Administrative
Waivers; clarifying procedures, standards to establish Notification Procedures for the Approval
of Administrative Waivers. Ordinance No. 040-2007 consolidates and clarifies the process for
waivers and variances to the bulk regulations associated with conditional use permits
CONCLUSIONS OF LAW
4. 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).
DCA Final Order No.: DCA07-0R-268
5. 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.
6. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development ofland. ~ 380.031(8), Fla. Stat. (2006). The
regulations adopted by Ord. 040-2007 are land development regulations.
7. 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 ~ 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 Jrom the other provisions.
8. Ord. 040-2007 promotes and furthers the following Principles:
(a) To strengthen local government capabilities for managing land
use and development so that local government is able to
achieve these objectives without the continuation of the area of
critical state concern designation.
(d) To ensure the maximum well-being ofthe Florida Keys and its
citizens through sound economic development.
9. Ord. 040-2007 is consistent with the Principles for Guiding Development as a
whole.
WHEREFORE, IT IS ORDERED that Ord. 040-2007 is found to be consistent with the
Principles for Guiding Development ofthe Florida Keys Area of Critical State Concern, and is
hereby APPROVED.
This Order becomes effective 21 days after publication in the Florida Administrative
Weekly unless a petition is filed as described below.
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DCA Final Order No.: DCA07-0R-268
DONE AND ORDERED in Tallahassee, Florida.
CfJ A A A Qf
CHARLES GAUTHIER, ICP l
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 ACTION.
DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF MATERIAL
FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU
ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED ISSUE
OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN THE
ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND
CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
3
DCA Final Order No.: DCA07-0R-268
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.
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true and correct copies have been furnished
to the persons listed below by the method indicated this -12 day of November, 2007.
A
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DCA Final Order No.: DCA07-0R-268
BvU.S. Mail:
Honorable Mario Di Gennaro
Mayor of Monroe County
Florida Keys Marathon Airport
9400 Overseas Highway, Suite 210
Key West, Florida 33050
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
Andrew Trivette
Director
Planning and Environmental Resources
2798 Overst::as Highway, Suite 400
Marathon, Florida 33050
Bv Hand Delivery or Interagencv Mail:
Craig Diamond, Bureau of State Planning, DCA Tallahassee
Clark Turner, ACSC Administrator, DCA Tallahassee
Richard E. Shine, Assistant General Counsel, DCA Tallahassee
5