The URL can be used to link to this page

Ordinance 043-2007 ORDINANCE NO. 043-2007 A ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ADOPTING AN AMENDMENT TO THE TEXT OF THE MONROE COUNTY LAND DEVELOPMENT REGULATIONS; AMENDING SECTION 9.5-268 ENTITLED "EXISTING RESIDENTIAL DWELLINGS" TO CONSIDER TRANSIENT RESIDENTIAL UNITS LEGALLY ESTABLISHED BEFORE JANUARY 4, 1996 CONFORMING AS TO DENSITY IN ORDER TO PERMIT REPLACEMENT, REDEVELOPMENT AND SUBSTANTIAL IMPROVEMENTS; 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 WHEREAS: Monroe County has adopted the Year 2010 Comprehensive Plan (Plan) that contains land use policies; and WHEREAS: Policy 101.4.23 of the Plan states "Notwithstanding the density limitations set forth in Policy 101.4.21, land upon which a legally established residential dwelling unit exists shall be entitled to a density of one dwelling unit per each such unit. Such legally established dwelling unit shall not be considered as non-conforming as to the density provisions of Policy 101.4.21 and the Monroe County Code."; and WHEREAS, Transient residential units rendered nonconforming as to density by Plan have prohibited owners of such units to redevelop or make substantial improvements to these structures, and as a result has caused the continual degradation of the quality and safety of these structures over time; and WHEREAS, without the reassurance of the ability to redevelop, reestablish, and make substantial improvements to legally established transient residential units in the aftermath of a hurricane, owm:rs of such units are reluctant to invest in the long-term maintenance of these structures, resulting in the continued degradation of neighborhoods and community character, and creating unsafe environments, and WHEREAS, this amendment will provide an incentive for reinvestment and redevelopment of transient residential units and thereby preserve an existing tax base that has historically provided a significant amount of tax revenues used by the County to acquire environmentally sensitive lands and construct affordable housing; and WHEREAS, Monroe County desires to encourage redevelopment of transient uses such as hotels and motels in order to attract tourism, enhance the economy of the County for the benefit of its residents, enhance the County's ability to support needed improvements in infrastructure, and encourage other redevelopment efforts for the economic growth, prosperity and welfare of the residents of Monroe County; and W:IGROWTH MANAGEMENTIBOCCIGMD Agenda Itemsl20071114\Transient Units\ORDINANCE BOCC TRANSIENT UNIT GRANDFATHERING Og 26 07 (2).doc Page 1 of 4 Reviewed by __ WHEREAS, the Monroe County Board of County Commissioners (BOCC) recognizes the benefits of protecting existing transient units in order to sustain economic growth and development of the lodging industry; and WHEREAS, providing such protection in the County's regulations that will allow owners of transient units to redevelop and make substantial improvements is a form of economic development that has the potential to increase tax revenues to the County without increasing tax rates by increasing the volume of the tax revenuesfrom hotel rooms and other related tourist businesses such as retail shops, specialty and souvenir shops, restaurants, charter and dive boats, bait and tackle shops that will enhance the County's tourist industry and economy; and WHEREAS, this amendment is consistent with the following Principles for Guiding Development in the Florida Keys Area of Critical State Concern: (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, and (d) To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development; and WHEREAS: The BOCC may consider the adoption of an ordinance enacting a proposed text amendment based on at least one of the six (vi) factors listed in Section 9.5-511 (d) (5) (b) of the Monroe County Code, the BOCC finds the proposed amendment justified by factor (v) Recognition of a need/or additional detail or comprehensiveness; and WHEREAS, The BOCC finds that enactment of this Ordinance will protect the public health, safety and welfare of the residents of Monroe County, and further the purposes, goals, objectives and policies of the Monroe County's Year 2010 Comprehensive Plan and the Principles for Guiding Development Dor the Florida Keys Area of Critical State Concern; and WHEREAS, On August 2[, 2007 the Development Review Committee reviewed the proposed text amendment and prepared a resolution recommending approval of the proposed text amendment (D 19-07), WHEREAS, On September 26, 2007 the Planning Commission heard the proposed text amendment and duly considered public testimony the re[port prepared by staff, and passed a resolution the board of county commissioners recommending approval (P50-07), NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY THAT, Section 1. Sec. 9.5-268 of the Monroe County Code is hereby amended as follows: W:IGROWTH MANAGEMENTIBOCCIGMD Agenda ltems\20071I14lTransient Units\ORDINANCE BOCC TRANSIENT UNIT GRANDFATHERING 09 26 07 (2).doc Page 2 of 4 Reviewed by Sec. 9.5-268. Existing residential dwellings. Notwithstanding the provisions of Sections 9.5-267, 9.5-262 and 9.5-263, the owners of land upon which a lawfully established dwelling unit, mobile home, or transient residential unit exists shall be entitled to one (I) unit for each type of dwelling unit in existence before January 4, 1996. Such legally-established dwelling unit shall not be considered as a non-conforming use. Section 2. 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 3. 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 repeal ed. Section 4. 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 5. 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 for the State of Florida, as required. Section 6. Effective Date. This Ordinance shall be effective immediately upon approval by the State Department of Community Affairs pursuant to Chapter 380, Florida Statutes. THIS SPACE LEFT BLANK INTENTIONALLY W:\GROWTH MANAGEMENT\BOCC\GMD Agenda ltems\20071 I 14\Transient Units\ORDINANCE BOCC TRANSIENT UNIT GRAND FATHERING 09 26 07 (2).doc Page 3 of 4 Reviewed by PASSED AND ADOPTED, by the Board of County Commissioners of Monroe County, Florida at a regular meeting of said Board on the 14th day of Nov. ,2007. Mayor Charles "Sonny" McCoy Mayor Pro Tern Mario DiGennaro Commissioner Dixie Spehar Commissioner George Neugent Commissioner Sylvia Murphy Yes Yes ~ ~ No BOARD OF COUNTY COMMISSIONERS OF MONROE By: IlLS ,.~~~' (y\~COJ (SEAL) ATTE~ KO~~g~LERK, By: c.. CItY\.,~ Deputy Clerk ,..., :? = '7. CI = g 1> .... ....- ." 0 :"'1 ::O(".,~ ..., :,::1 D '"'-.. n r'1 r- -< A 1 n. 0 0 ("") c..:: ...... . -0 ,n .- ."., :x , _'<_.J. ~) .' r- ::::) ., ~- ;'J ;...... ro'-, U1 CJ .r:- W:\GROWTH MANAGEMENT\BOCC\GMD Agenda Items\20071 1 14\Transient Units\ORDINANCE HOCC TRANSIENT UNIT GRANDF ATHERING 09 26 07 (2).doc Page 4 of 4 Reviewed by MONROE COUNTY COURTHOUSE 500 WHITEHEAD STREET, SUITE 101 KEY WEST, FLORIDA 33040 TEL. (305) 294-4641 FAX (305) 295-3663 BRANCH OFFICE: PLANT A TION KEY GOVERNMENT CENTER 88820 OVERSEAS HIGHW A Y PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 BRANCH OFFICE: MARATHON SUB COURTHOUSE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 CLERK OF THE CIRCUIT COURT MONROE COUNTY www.cIerk-of-the-court.com ROTH BUILDING 50 HIGH POINT ROAD PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 853-7440 December II, 2007 Ms. Liz Cloud, Program Administrator Administrative Code & Weekly R.A. Gray Building 500 S Bronough Street Tallahassee FL 32399-0250 Dear Ms. Cloud, Via Certified Mail 700725600001 61070150 Enclosed please find certified copies of the following Ordinances: Ordinance No. 043-2007 adopting an amendment to the text ofthe Monroe County Land Development Regulations; amending Section 9.5-268 entitled "Existing Residential Dwellings" to consider transient residential units legally established before January 4, 1996 conforming as to density in order to permit replacement, redevelopment and substantial improvements; 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. 045-2007 amending Section 9.5-22(h)(2) of the Monroe County Code concerning Planning Commission Meeting locations; providing for severability; providing for the repeal of all inconsistent provisions; providing for inclusion in the Monroe County Code; providing for the transmittal of this Ordinance to the State Department of Community Affairs; providing for an effective date. These Ordinances were adopted by the Monroe County Board of County Commissioners at a Regular Meeting held in formal session on November 14, 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 Ordinance #'s: 043 & 045-2007 Board of County Commissioners ~.~s~nf!-:{J~ CC: Via E-Mail to the following: Growth Management County Attorney BOCC File CHARLIE CRIST Governor ~ - -... t'OOw>~ rLORIDA DEPARTMENT of STAT~ STATE LIBRARY AND ARCHNES OF FLORIDA KURT S. BROWNING Secretary of State December 13, 2007 Honorable Danny L. Kolhage Clerk of Circuit Court Monroe County 500 Whitehead Street, Suite 101 Key West, Florida 33040 Attention: Isabel C. DeSantis, Deputy Clerk Dear Mr. Kolhage: Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your letter dated December 11, 2007 and certified copies of Monroe County Ordinance Nos. 043-2007 and 045-2007, which were filed in this office on December 13, 2007. Sincerely, ~C :J: c:: ~ C> = ~..( z j> ...... - ::::Oc-,:e 0 ~C.~,~ ,..., C"") C) N C) ~ 0\ .:.,~ -.. ::Do .'J " ::or :;-'- -.,., ":'~ ) r >. N -, co Liz Cloud Program Administrator LC/jru DIRECTOR'S OFFICE R.A. Gray Building . SOO South Bronough Street . Tallahassee, Florida 32399-0250 850.245.6600 . FAX: 850.245.6735 . TDD: 850.922.4085 . http://dlis.dos.state.fI.us COMMUNlT'i DEVELOPMENT 850.245.6600 " FAX: 850.245.6643 51 A IE LIBRARY OF FLORIDA 850.245.6600 . FAX: 850.245.6744 51 A IE 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 ADMINISTRA rIVE CODE AND WEEKLY 850.245.6270 . FAX: 850.245.6282 7007 2560 0001 6107 0150 ~~~ n: () f./): !!iI i;; "'.,~. 'I " ~A.i O".~:. ': r... Sf: t1J.h: Q' ~ .iil: ~~: ,-~ ~i ~~: IJ i"~i:IJ ::f g~~ ;ij i ~~ i' <J> o:i lD -, -,'S::: tr 0: =: T' ::l: a. ~ 0:-. i'.c::::l IIJ..<oi(Q "'::r. J.,gj 1\)- t.>a; <<><Ili ~"1 oi ~! FI ;j mOD m fr~ "- ;[ Q" " PHI .. .- 0 ~~ 30 . .3 0 .- '0 "" ~ -. . ~ 1J?;f ,,~ 3 ~.~. ~ ~. . .<1 s.-<! ~ .." @~ J1 ~. -. ~. . )> a. 3 2. !!l. ~ I>> o ~ -<:'?---Sn / -~-~~f}""""-" a.. /~~\ (.,il. \ \ ~ I \~.,:,;:.11 -":":"'~..-'~ -0 !" ~ c' . . . en ~ ." ~~ )> o)>t:Il""C;:+() 0 ~ " ......::; 0 ::!.CD 0 :3 ' 0 iii'~Jl)>"1l o' g~:7a.33 ~lS it . a. ~ '" :;:::a~ ~~ w , z =0)>30 )> OJ :n III C/J' _.CO 0. ~~~~;;CD 0. ~ ::r G>::J"" il ~ 3 c- C/)' Il) 0 _.Pl a(llo:J(D;:+ 0 ::::I gQ:lQ:l !:1(t) " ' (l)l::;~3 . ." ~ ~ -...... :J 3 ::::l.3 0 m :;'< ; )> ~ ::;;O"..,(1l~(fl 0- il' ~o~~~:'" 2 ~ CDmDJ::!:D. " " -t: ..., c: < 3 ~:f3a.o~J\J '< g- ."O=CD-- CD CD _D:l m..PJ '" = <J.> -::JQ. ::J 0" ;:ro..-'::J 0 ~ 0 5' (') 00" -g III (td~. (6 a. 0 ~iq. -. c: <0 0 .-+ 3~grn-<~ ... c.cc a."'"' ;::;:0 aC/Jiij")> 10C) Pl:T m~ !Jl::_go..1F ~~ wC/J III 0 ~~ g:~.~ ~ N~ ::> 30 (1) ca 0 wm a. !!:!.F!il p..~ " <om ::i: -c < - <0- _. (1) CD 0 , m o ' - 3 0 m o " 0 0 -,.I .0 0 !'l N '" o' 0 01 -< :xl 0 0 !P. -,.I " , ru ,. '" 0 !" >< )> :xl ~ In :xl DO g> ::j;(ii'" :xl en !A -<0. 0 ",. o. lr S"::IIO 0 ,,') >: mo 0 , 0 ,. ~ 8 ~ g .en ~ ~ a u .11 c 0 U!f 000 " 0 0. ~~::I -< (J 0 ![ r"'''.~ ~,. ~ a. Q.J ... 0 ~. = ~ "'t1!!' ~ ~ lo-' ~ t ~ ,< ~,'".~ B: il: lr i ODD ..-J' d Al if lo-' C>:xl~ ','8: ~ ~ 0 b !\-c .o":"'}nJ ..... 3 -,.I i . c" ~;1~ il' ~!. ~ o 3 ~ ~ ~ 0" 3 0 :xl;:: t""j~ it lo-' ~. 11, ,,' ~ 3 In >: '0 <:) ,; 0 ~ " ~ 0 ;:: DO a DO ~ 0 ~ 0 z~ Q. ~~ ~ ~ :\l a . ~ o . " 0. 0 " . o. " "- , 0- ". . 'i ~. 0 . '< 0 0 0 DCA Final Order No.: DCA08-0R-044 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS FINAL ORDER :r:: ..... = Cl ~ = -'f'! Z $;tJo .... .. AJ ~. .." c)("").:.".-: - ,." . ,""-~ CD '':J r<i::=;: -< co r.m N -r, -- 0 0 ,-.., r.:: --- ..,~, ::;.::; , - --.; "'"' c :x 'q .' - , 0 .,., - , r- .. :i> PI ::CJ (,.) CJ In re: MONROE COUNTY LAND DEVELOPMENT REGULATIONS ADOPTED BY ORDINANCE NO. 043-2007 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. (2007), 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 December 17,2007, the Department received for review Monroe County Ordinance No. 043-2007, adopted by Monroe County on November 14, 2007. 3. The purpose of this Ordinance is to amend Chapter 9.5 of the Land Development Regulations to include "transient residential units' that are legally, lawfully established to have a vested right to replace or substantially improve those units on a one- for-one basis regardless of the density. 4. The Department has reviewed the Ordinance for consistency with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 2010 Comprehensive Plan. I DCA Final Order No.: DCA08-0R-044 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. (2007). 6. Monroe County is a local government within the Florida Keys Area of Critical State Concern. ~ 380.0552, Fla. Stat. (2007) 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. (2007). The regulations adopted by Ordinance No. 043-2007 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 I 63.3 I 94(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. 043-2007, which allows transient residential units to have a vested right to replace or substantially improve those units on a one-for-one basis regardless of the density is not consistent with the following Principles: Principle (a): To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives 2 DCA Final Order No.: DCA08-0R-044 without the continuation of the area of critical state concern designation. Principle (j): To make available adequate affordable housing for all sectors of the Florida Keys. Principle (k): To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for post disaster reconstruction plan. 11. Ordinance No. 043-2007 is neutral in effect on the remaining Principles. 12. Ordinance No. 043-2007 is inconsistent with the following provisions of the 2010 Monroe County Comprehensive Plan that limit the vesting of density to legally established residential dwelling units and transportation impacts: Policv 101.4.23 Notwithstanding the density limitation set forth in Policy 101.4.21, land upon which a legally-established residential dwelling unit exists shall be entitled to a density of one dwelling unit per each such unit. Such legally-established dwelling unit shall not be considered as non-conforming as to the density provisions of Policy 101.4.21 and the Monroe County Code. 13. The Ordinance is inconsistent with the following Comprehensive Plan Elements: Obiective 216.1 Monroe County shall reduce hurricane evacuation clearance time to 24 hours by the year 2010. Obiective 217.3 By January 4, 1997, Monroe County shall adopt Land Development Regulations which direct future growth away from the Coastal High Hazard Area (CHHA). Policy 301.1.2 For US-I, Monroe County hereby adopts a level of service (LOS) standard ofC based on the methodology developed by the US-I LOS Task Force and adopted by the Board of County Commissioners in August 1991, for analyzing the LOS on US-l in Monroe County. This methodology replaces a peak hour volume standard for US-I. The level of service on US-l shall be maintained within (5%) 3 DCA Final Order No.: DCA08-0R-044 of LOS C. Obiective 301.2 Ensure that all roads have sufficient capacity to serve development at the adopted LOS standards concurrent with the impact of said development. 13. Ordinance No. 043-2007 is inconsistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and Monroe County's Comprehensive Plan. WHEREFORE, IT IS ORDERED that Ordinance No. 043-2007 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. k14~~C~ ( - , joltg~:;~~i~Si~:~~~:n~~ty 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 4 DCA Final Order No.: DCA08-0R-044 CHAPTER 28-106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAYBE 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 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. 5 DCA Final Order No.: DCA08-0R-044 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 i~rrect copies have been furnished to the persons listed below by the method indicated this :--day of February, 2008. Prl:A~ IJrn Bv U.S. Mail: Honorable Charles "Sonny" McCoy Mayor of Monroe County Florida Keys Marathon Airport 9400 Overseas Highway, Suite 210 Key West, Florida 33050 Danny 1. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Andrew Trivette Growth Management Director 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Bv Hand Delivery or Interagencv Mail: Craig Diamond, Bureau of State Planning, DCA Tallahassee Rebecca Jetton, ACSC Administrator, DCA Tallahassee Richard E. Shine, Assistant General Counsel, DCA Tallahassee 6 . STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS "Dedicated to making Florida a better place to call home" CHARLIE CRIST Governor THOMAS G. PELHAM Secretary March 31, 2008 Ms. Claudia Llado, Clerk Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Re: DCA Final Order No.: DCA08-0R-044; Monroe County Dear Ms. Uado: Pursuant to Sections 120.569 and 120.57, Florida Statutes, please find enclosed a Petition for Administrative Hearing in the above referenced matter that is being forwarded to you for assignment of an Administrative Law Judge. Attached to the Petition as Exhibit A, is a copy of the Department's Amended Final Order rejecting the Monroe County Land Development Regulation. The Department reserves its rights to challenge the standing of the Petitioner at hearing. Please direct any further documents concerning this petition to me at Department of Community Affairs, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100, (850) 922- 1683. ~!~ Richard E. Shine Assistant General Counsel Enclosures cc: Mr. James S. Morris, Esq., Counsel for Petitioners Mr. Danny 1. Kolhage, Clerk to the Board of County Commissioners Honorable Mario Di Gennaro, Mayor of Monroe County Ms. Susan M. Grimsley, Esq, Counsel for Monroe County 2555 SHUMARD OAK BOULEVARD. TALLAHASSEE, FLORIDA 32399-2100 Phone: 850.488.8466 FAX: 850.921.0781 Internet address: htto:/lwww.dca.state.fl.us CRITICAL STATE CONCERN FIELD OFFICE 2796 Overseas Highway, Suite 212 Marathon, FL 33050-2:127 (305) 289-2402 COMMUNITY PLANNING 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 (850)488-2356 EMERGENCY MANAGEMENT 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100 (850)413-9969 HOUSING & COMMUNITY DEVELOPMENT 2555 Shumard Oak Boulevard Tallahassee. FL 32399-2100 (850) 488-7956 Mar. 7, 2008 10:37AM c ( ) No, 7639 p, 2 p-: /" STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS EL EL SI, LLC a Florida limited liability company, Petitioner, DOAH Case No.: DCA No.: 08-0R-044 Monroe County Ordinance 043-2007 DEPARTMENT OF COMMUNITY AFFAIRS FlUNG AND ACKNOWlEDGEMENT FIlED, on this dat$, with th$ d$81gnated Aolll1&Y C , roceipt ot which is hereby ackn VB" I Respondent. PETITION FOR FORMAL ADl\1INISTRATlVE PROCEEDING Petitioner, El EL sr, LLC, a Florida limited liability company, pursuant to 9120.569, 9120.57(1), Fla. Stat. (2007) and Rule 28-106, of the Florida Administrative Code, requests a Formal Administrative Hearing in the above-styled case and states: AFFECTED AGENCIES AND PARTIES I. The agencies are: a. The Respondent, Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, PL 32399-2100 b. MOm'oe County Planning Department 2798 Overseas Highway Marathon, Florida 33050 2. The Petitioner: EL EL Sr, LLC, a Flolida limited liability company 6401 SW 871h Avenue Miami, Florida 33173 (Please note for service PUrpOSN the address, phone number, lInd fax ntlmber ofPetilioner's counsel Bllhe end of this dooument.) "I Ma r, 7, 2008 1 I): 37AM ( ( No, 7839 p, 3 NOTICE OF AGENCY ACTION 3. Notice of the. Department of Community Affairs' (DCA) Final Order finding Monroe County Ordinance 043-2007, not in compliance with Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 2010 Comprehensive Plan was provided to Petitioner's counsel by Monroe County and Petitioner on February 28, 2008. PETITIONER'S SUBSTANTIAL INTERESTS AND STANDING 4. Petitioner is the owner of property located at 97680 Overseas Highway, Key Largo, Florida (the "Property"). which is the subject of Monroe County Ordinance 043-2007 (Exhibit "A"), and an August 23, 2006 Memorandum of Understanding regarding the re-development of the Property, The AUgllSt 23, 2006 Memoi'andum of Understanding is attached as Exhibit "B". 5. Petitioner will use this property in the future. The future reuse of the Property. will be consistent with the Memorandum of Understanding ("MOU") attached as Exhibit uB", 6. Development anticipated by the MOU results in the same number of transient units that are entitled and lor currently exist on the Property. There will be no increase in the number of transient units under the re-use plan. 7. The basis for the Department of Community Affairs "Final Order" is the alleged inconsistency of the MOV and Ordinance 043-2007. with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 2010 Comprehensive Plan, 2 Mar. 7. 2008 10:37AM ( ( No. 7839 p, 4 8. Pursuant to Florida Statutes and the applicable Florida Rules of . Adritinistrative Procedure, Petitioner is entitled to party standing in this administrative action and has met all conditions precedent for doing so. DISPUTED ISSUES OF MATERIAL FACT, ULTIMATE FACTS WARRANTING REVERSAL OR MODIFICATION, RULES AND STATUTES REQUIRING REVERSAL OR MODIFICATION, and RELIEF SOUGHT 9. Florida Kevs Area of Critical State Concem. DCA (01' the "Department") contends that Monroe County Ordinance No. 043-2007, is inconsistent with the Florida Keys Area of Critical State Concern Principle (a), which states: 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. DCA provides no data and /01' analysis to support this finding. Ordinance No. 043-2007, is intended to provide the same 1'C-development oppOltunities 8$ found in the similar ordinances of the City of Key West, the ViIlages of Islamorada, and the City' of Marathon. Contr81)' to the Department's position, the Ordinance, in the fourth WHEREAS clause of the enactment specifically states that rationale for the ordinance: WHEREAS, without the reassurance of the ability to redevelop, reestablish, and make substantial improvements to legally established transient residential units in the aftermath of a' hurricane, owners of such units are reluctant to invest in the long- telm maintenance of these structures, resulting in the continued degradation of neighborhoods and community character, and creating unsafe environments ... 3 Mar. 7. 2008 10:37AM ( ( No, 7839 P. 5 Given the rationale of the Ordinance, and the economic reality contained therein, the Ordinance specifically creates a way for: (a) Monroe County to induce transient uses to re-develop transient facilities to current building code standards, which will decrease damage from h\Ul'icancs and other storm events when compared to older, non-building code compliant transient structures; and (b) The 011e-for-one ratio of ttansient unit replacement does not increase development intensity above existing conditions or decrease local government control at to site placement, elevation, construction type and unit size. 10. DCA contends that Monroe County Ordinance No. 043-2007, is inconsistent with the Florida Keys Area of Critical State Concern Principle 0), which states: To make available adequate affordable housing for all sectors of the Florida Keys. Ordinance 043-2007 does not address housing, affordable, or otherwise. The Ordinance deals with transient units which llJ:e by definition, not housing for a workforce or others in need of affordable housing. Transient units are directed towards the traveling public and the tourist economy of MOllroe County. II. Next, DCA states that Monroe County Ordinance No. 043.2007, is inconsistent with the Florida Keys Area of Critical State Concern Principle (k), which states: To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or rnanmade disaster and for post disaster reconstruction plan. 4 Ma r. 7. 2008 10: 38AM ( ( No. 7839 P. 6 The Department's position is not supported by any data and analysis. Additionally, as stated previously, the Ordinance encourages reo investment in existing transient uses. Re-investment in existing properties contemplates reconstruction units on a one-for-one basis. These new units will be required to comply with current and future building codes and land development regulations. The public welfare and safety are better served by modern building standards rather than the preservation of existing dilapidated and non-current code compliant construction. 12. Monroe CoUnty Cottmrehensive Plan. Ordinance 043-2007 inconsistent with objectives: Policy 101.4.23 The Department has found the following pOlicies arid 13. Notwithstanding the density limitation set forth in Policy 101.4.21, land upon which a legally- established residential dwelling unit exists shall be entitled to a "density of one dwelling unit per each such unit. Such legally-established dwelling unit shall not be considered as non-conforming as to the density provisions of Policy 101.4.21 and the Monroe County Code. A review of the cited policy will show that it does not speak to unit types other than residential dwelling units. Instead, the policy simply speaks as to how vesting for residential units will be addressed. Under current Monroe County zoning law, the transi~nt units owned by Petitioner are vested as permitted, non-conforming transient uses. " 14. Objective 216.1: Monroe County shall reduce hurricane evacuation clearance time to 24 hours by 2010. 5 Mar. 7. 2008 10:38AM ( ( No. 7839 P. 7 The allowance of a one- for-one reconstruction of transient units, to cun'Cnt building codes, which are already allowed as permitted, non-confonning uses has no impact on hurricane evacuation for the following reasons: (a) the units already exist as motel rooms and R.Y. sites which are accounted for by cun-ent traffic loading in Monroe County; (b) replacement of R.Y. sites by hotel rooms on a one.for-one basis will actually, promote more rapid evacuation of Monroe County by removing some of the RY.'s from the traffic flow and replacing them with smaller and perhaps faster vehicles which will take less space on the road and move more quickly than an R.Y. Additionally, some RoY. traffic might also be replaced by tourists evacuating by ail' transport which further reduces the traffic out of the County; and (c) Monroe County employs a policy that, in advance of a hurricane and lor during hurricane warnings, will prevent occupancy of transient units. This policy promotes reduced evacuation times by preventing tourists from entering Monroe County during hurricane warnings. Exhibit "Cn. IS, Objective 217.3: By January 4,1997, Monroe County shall adopt Land Development Regulations which direct growth away from the Costal High liazard A1-ea (CHHA). Objective 217.3 relates to future growth. One-to- one replacement is not future Or new growth. The Ordinance contemplates replacement of an existing number of units with the same number or new units serving the same purpose - transient visitors. Replacement transient , units will be safer than the existing motel units and R.Y. 's, 16. Policy 301.1.2: For U.S.-I, Momue County hereby adopts a level of service (LOS) standard of C based on the methodology developed by the US.l LOS Task Force and adopted by the Board of Cowlty 6 Mar. 7. 2008 10:38AM ( ( No, 7839 P. 8 Commissioners in August 1991, for analyzing the LOS on US-l in Monroe County. This methodology replaces the peak hour volume standard for US-I. The level of service on US-l shall be maintained , within (5%) of LOS C The Department provides no data and analysis to support this position. Policy 301.1.2 is not violated by allowing one-for- one replacement. The Ordinance effectively maintains background traffic which is part of the current level of service load. Because the Ordinance does not allow an increase in units, Policy 301.1.2 is not violated and there should be no negative impacts or degradation in the eXisting level of service. 17. Policy 301.2: Ensure all l'Oads have sufficient capacity to serve development at the adopted LOS standards concurrent with the impact of said development. Please see the response above but also consider that the Ordinance does not place any new vehicle trips on the road or absorb any remaining capacity from new development. 18. Petitioner's pOSition is that the DCA's Final Order is not supported by any of the cited rules, statutes, State or Local Comprehensive Plan requirements cited by DCA. Furthermore, Monroe County Ordinance 043-2007 is consistent with the Principles for Guiding Development of the Flolida Keys Area of Critical State Concern and the Monroe County 2010 Comprehensive Plan 19. The Petitioner respectfully I'equests that: (1) it be granted full party status; (2) that the Final Order by DCA be reversed; and (3) that MOllfoe County Ordinance 043-2007 be ratified and the administrative action thereafter be dismissed. Respectfully submitted this 1 ~day of March 2008, 7 Ma r, 7, 2003 10: 38AM ( c No, 7839 p, 9 & HARRIS, L.LPvJ . . ~~ By: J . MORRIS Attorneys for Petitioner Florida Bar Number: 3396867 420 S. Nova Road Daytona Beach. FL 32114 Phone: 386-238-8383 Fax: 386-238-0988 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing has been filed by fax witll the Division of Administrative Hearings, and that copies have been provided by U. S. mail to Richard E. Shine, Assistant General Counsel, Department of Community Affairs, 2555 Blvd., Tallahassee FL 32399; on this -, t!I-- day of May 2008. ~fi~ /TY HARRiS , 8 Mar. 7. 2008 10:38AM ( ( No. 7839 P. 10 Exhibit "A" . ORDI~ANCE NO. 043.,2007 A ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ADOPTING AN AMENDMENT TO THE TEXT OF THE MONROE COUNTY LAND DEVELOPMENT REGULATIONS; AMENDING SECTION 9.5-268 ENTITLED "EXISTING RESIDENTIAL DWELLINGS" TO CONSIDER TRANSIENT RESIDENTIAL UNITS LEGALLY ESTABLISHED BEFORE JANUARY 4, 1996 CONFORMING AS TO DENSITY IN ORDER TO PERMIT REPLACEMENT, REDEVtLOPMENT AND SUBSTANTIAL IMPROVEMENTS; PROVIDING FOR CODIFICATION, SEVERABILITY AND REPEAL OF INCONSISTENT PROVISIONS; PROVIDING FOR FORWARDING OF THIS ORDINANCE TO TRI1: DEPARTMlilNT OF COMMUNITY AFFAIRS AND THE SECRETARY OF STATE; PROVIDING ftOR AN EFFECTIVE DATI!: WHEREAS: Monroe County hu adopted the Year 2010 Comprehensive Plan (PIIlll) that contains land use policies; end WHEREAS: Policy 101.4.23 of the Plan statcs. "Notwithstanding the density limitations set forth in Policy 101.4.21, land upon which a legally established residential dwelling unit exists shall be entitled to a density of one dwelling unit per each such unit. Such legally established dwelling unit shall not be considered as non-conforming as to the density provisions of Policy 101.4.21 and the Monroe Counly Code."; and WHEREAS, Transient residential units rendered nonconforming as to denSity by Plan have prohibited owners of such units to redevelop or make substantial improvements to these structures, and as a result has caused the continual degradation of the quality and safety of-these structures over time; and . WHEREAS, without ilie reassurance of the ability fo redevelop, reestablish, and make substantial improvements to legally. established transient residential units In the aftermath of a hurricane, owners of such units are reluctant to invest in the long-term malntenllllCl! of these structwes, resulting In the continued degradation of neighborhoods and colnmunity charecter, and creating unsafe environments, and WHEREAS, this amendment will provide an incentive for reinvestment and redevelopMent of transient residential units and thereby preserve an cxlstini lax base that has historically provided a significant amount of tax revenues used by the County to acquircenvironmentally sensitive lands and construct affordable housing; and WHEREAS, Monroe County desires to encourage redevelopment of transient USes such as hotels and motels in order to altract tourism, enhance the economy of the County for the benefit of its residents, enhance the County's ability to support .needed Improvements in infrastructure, and encourage other redevelopment efforts for the economio growth, prosperity and welfare of the residents of Monroe County; and .. W~GROWTH MANAGEMeNnBOCCIGMD Agenda Items\2l10711.14\Transient UnllslOflDINANCe BOce TRANSIENT UNIT GAANDI'ATHeRING 09 26 07 (2).doc Page I 014 Reviewed by Ma r, 7, 2008 10: 38AM ( ( No, 7839 p, 11 WHEREAS, the Monroe County Board of County Commissioners (BaCC) recognizes the benefits of protecting existing transient units in Clrder to sustain economic growth and development of the lodging InduslTy; and WHEREAS, providing such protection in the County's regulations that will allow owners Iilf tmnaient units to redevelop and make substantial improvements is a fonn of economic development that has the potential to .Increase tax revenues to the County without Increasing tax rates by Increasing the volume of the tax revenuesfrom hotel rooms and other related tourlst businesses such as retail shops, specialty and sOllvenir shops,restaurants, charter and dive boats, bait and tackle snops that will enhance the County's tourist Industry and economy; and WHEREAS, this amendment is consistent with the following Principles for Guiding Development ill the Florida Keys Area ofCrltioal State Concern: (a) To strengthen looal 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 co.ncem designation, and (d) To ensure the maximum well-being of the Florida K.eys and Its citizens through sound economic deveIOf'ment; Bnd . WHEREAS: The Bacc may consider the adoption of an ordinanoe enacting a proposed text amendment based on at least one of the six (vi) factors listed in Section 9.5-511 (d) (5) (b) of the Monroe County Code, the BOCC finds the proposed amendment justified by factor (v) Recognition of a need for additional detail or comprehensiveness j Bnd WHEREAS, The BaCC finds that enactment of this Ordinance wlll protect the pubHc health, safety and welfare of the residents of Monroe County, Bnd further the purposes, goals, objectives and palicies of the Monroe County's Year 2010 Comprehensive Plan and the Principles fur Guiding Development for the Florida Keys Area of CrItical State Concern; Bnd WHEREAS, On August 21, 2007 the Development Review Committee reviewed the proposed text amendment and prepared a resolution recommending approval of the proposed text. amendment (019-07), WHEREAS, On September 26, 2007 the Planning Commission heard the proposed text amendment and duly considered public testimony the re[port prepared by staff, and passed a resolution the board of county commissioners recommending approval (P50-07), NOW, THEREFORE, BJi: IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY THAT, Section I. Sec. 95-268 of the Manroe County Code is hereby amended as folloWs; W:\OROWTH MANAGEMEN1\BOCC\OMO Ajenda Iwnal20071 I 141Tnn.lenl Unilll\ORDINANCE BOee TRANSIENT UNIT ORANDI'ATHERlNG 09 26 07 (2).OOc Pagelof4 Reviewed by Mar, 7, 2008 10:38AM ( ( No, 7839 p, 12 Sec. 9.5-268. Existing residential dwellings. Notwithstanding the provisions of Sections 9.5-267, 9.5-262 and 9.5-263, the OWRCrs of land upon which a lawfully established dwelllng unit, mobile home, or transient residential unit exists shall be entitled to one (1) unit for each type of dwelllng unit In existence before January 4, 1996. Such legally-established dwelling unit shall not be considered as a nOJ;l-confonning use. Section 1. SeverablUty. The provisions of this Ordinance are declared to be severable and if eny section, sentence, clause or phrase of this Ordinance shall for any reason be held to' be invalid Or unconstitutional, such decision shall not affect tho validity of the remaining sections, sentences, clauses, and phrases Of this Ordinance but they shall remaIn in effect, it being the lei/slativo Intent that tbis Ordinance shall stand notwithstanding the Invalidity of any part. Seetlon 3. Repeal 01 Conficting Provision.. The provisions of the Monroe County Code and all Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance are hereby repoaled" Section 4. Ineluslon In tbe Code. The provisions of tbls ordinance shall be included lind incorporated in the Code of Ordinances of Monroe County, Florida as an addition or amendment thereto, and shall be appropriately Jlumbered to confonn to the un/fonn number system of the Code. Sllctlon 5. Approval by the State Department of CommunIty Affair..' The provisions of this Ordinance constitute a "land development regulatJon" as State law defines that term. Accordingly, the Monroe County Clerk Is authorized 10 forward a copy of this Ordinance to tbe 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. Settlon 6. Effedive Date. Thi. Ordinance shall be effective hllmediately upon approval by the State Departmel1t of Community Affairs pursuant to Chapter 380, Florida Statutes, THIS SPACE LEFI' BLANK JNTENTIONALLY W:\GROwm MANAGEM.ENTlBOCClGMD Agenda 1_.12007] I ]4\TlaJlIlent Unita\ORDINANCE BOCC TRANSII!NT UNIT ORANDFATIIERING 09 26 07 m.doc Page) of4 R01Ilewcd by Ma r. 7. 2008 10: 39AM ( ( No, 7839 P. 13 PASSED AND ADOPTED, by the Board of County Commissioners of MOlU'lle County, Florida at'a reiUJarmeeting of said Board on the 14th day of Nev. ,2007. Mayor Charlee "Sonny" McCoy Yea, Mayor Pro Tem Mario DiGennaro Yes Commissioner Dixie Speher 1Y- Commissioner George Neugent ~ Commissioner Sylvia Murphy 1!!1..- BOARD OF COUNTY COMMISSIONERS OF MONROE OUNTY, FLORIDA By; Mayorc It: IQ.'S, "~""~' (Y\~CJ :x .... = ..... ~o~ '"" .... F .~ ~ or' 1"1:;0;-< "11 ("")- r-. 0 I~ OM' 7.l 5~~:' ""'CI ~r,J ~(-l: :z ,'1 :<:-t'b- :'S ~ ,;:, -, . .. ~ t':) ;7 ? '" UI t;:J r l~~~;~~~~~ , W:\QROWTH MANAOEMENT\BOCC\OMD Agenda Itema\20071I 14\Tran.ionl UnirslORDINANCE HOeC TRANSIENT UNIT ORANDr ATHERING 09 26 07 (2).doc Paae 4 o'f4 Raviewed by Ma r. 7, 2008 10: 39AM ( No. 7839 p, 14 AUG-aJ-~ IISIi!!llP FfalM, . Exhibit "B" TOl!l!l52llB'l8 P.2'B .' County of Momoe Division of Growth Management PJlnnln. D,urlmmt 2791 011...... Hrpway Suifl410 Mdon. florlda 33050 Voi,..(3o.l) 289-2l00 . F~ (J~) 28'-2536 "~~''';~lY:'>',,,, J J/.... '~I \~. ,-::~; ~~0 Baird a' Cl'IllDtv r:'om~JlUla"It.l Mlyot Ch..... "So'.Y' McCoy. Did. 3 Mayor Pro tom, Dixie Spollar. DIS!. I Comm. OeOIp N.Ilpl~ Oist 2 Comm. Mitro 01 Ocn...... Di6/. 4 Camm. Gllnn PattOIl, nilt. , . W_""", to /JtJ ""/,,,. p,6/..IIon".nd/.I, AUgult 23, 2008 Roberb Norton Ronald HIll }l.O. Box 1992 Okeeehobee. FL 84973 Herahott; Luplno & Yagel 90180 Old Highway Tavernier. FL 88070 Attn: Peter Bache1er SUBJEO'1': PRE-APPLIOATION MUTING LETTER OF UNDERSTANDING and LETTER OF DEVELOPMENT RIGHTS DETEIl.MINATION FOR THE CONVERSION ON AN lOOBTING IlV PAlU{ AND MOTEL INTO CONDOTELS FOR REAL ESTA~ NUMBER 001191090.000000 APPROXIMATE MlLE MARKER 97.8. Dear Mr. Norton and Mr. Hill, Pwotuant to Section 9.5.48 of the Monroe Counliy Code, thla doouMenb .hall conetitute a letter of understandini. On May 25. 2008. a pre.applicatlon conferenee regerdinr the lubject proPerty was held in the Monroe County Plannllli Department In Plantation Key. . Attendees at the meeting Included Jiin Luplno, Pete Bacheler, Robert Norton and Ronald Bill (hereQfter coIIeotively referred to ae "applicant") and Busan BlaBB, Blologist, Alex AdamI, Planner and Julianne ThomaB, Planner (hereafter collactlv~ referred to al oataft"' for the Planning Depertl21ellt), On June 19. 2006, an epplication was received to include development rlllhta determination alonll' witl18upportln, doculnentation, Mate:tlals presented pl'lor to the meetlnl included. a) Pre-Applieation CllOmnClt Form; and b) Monroe County Property Record Cards ror P8?C8.l Nu~ber 00091090.000000 dated Q7/2912008; and Cl) Monroe County Bulldinr Permit (O/l.80-6<l26) ror replacement of decldDIJ and etriiiger. damaged durlnr J:tU%rloane W'1lma 12/18/20011; and d,) Monroe CDunty Bullding PSl'llIU (08-80-11614) Itlr a l'Ootreplacement dated 0210912004; end e) Monroe County Buildlnr Permit (94'90-0116) Itlr a re-rool dated 01l141100<l: and 1) Monroe CIlIInliY BulldlnlJ Permit (83.31-1877) for an e1sDtrlo meter !nepectfon for units 9 & 10 dated 101211/1993; and Il/pIjd. Illl. 00091010.0000110 Kay Lul' lofl Ma r. 7. 2008 10: 39AM ( c No. 7839 P. 15 AU6~2J-~0a6 BS.alP FROM. TO.9BS281l'111 !".J/B r) Monroe aoun~ Bulldinr Petmit(8B.80-1368) for a dock dated 11/0811988; and h) Various other Ii1storlcal pe''IIIite; and . i) 1990 FlorIda Keya Elsctrio Cooperative recorda; and j) Sit. Plan for Propoud 1I.ip-T1do Condo Hotel from Bellon Melanea dated 06/01/2008; and k) Aclial photo ~01111986; and 1) AeJoJal photo from 1991. Additional Materials reviewed prior to the meeting lnoluded: a) 1992 Mobile Home Survey; and b) A Lettar from Tom Simmcm., Director of Code Ent'ol:ceinent to Riptide Trailer Perk deted. 01ll!611999~ and . ~) Monroe County Code and GIS system; and . I~ FEMA Flood InauranCS Rate Map (Revised Fsbruary 18. 2005. Items dlsoua.ed at the meeting included the followinll 1, The applioants are intereeted in convert.lng an exlstlnc recreational velrlcle (RV) park with a motellnto a condominlUPI hotel. 2. The p""perty Is 1aC4~d at 0768.0veree.. Highw!\y. Key LargO and fa legally de.~bod ae Island of Key ul'8'O Part Lota 9 & 10 & 0.71 AC Bay Botton.. Tha Red EatAte Number Is 00091090.000000. The Propel'!:,y Appralser Web.ite idant!ftee the owner a. El SI LLC. 6401 SW 87'hAve, Sta 107, MiaJlli, 1L 88173. 3. The propertY io located 10 the Urban Residen&l Mobile Home (URM) land uee diatrict and the Future Land Use Map, (FLtlM) designation Is Mi:ied Use/Commercial (MO). 4, Tho plOOperty i. .oheduled to be changed from tmM to MilIGd Uee (MU) .. pad of the Ke, :Lal-go Livable OommunlXs,fl plan. , The FL'UM will romaio MO. The propo.ed redevelopment Clllll10t OOCUl untll the parcells re-deeignated. 5. The property i. bordered with a 15 unit resort to the North. Currently, the land uee desillllation for this prop81't,y ie Suburban Reeldential (811,). This property is alBo ,ol.o, to be obangad to a MU lad .... deai/fnatl.on aa part of tho Key Largo livable CommunlKeys plan. Te the South are tbe Rock Harbor Condominiums.' 'l'blIl pan:el has a land USB desiglt8tion of Urban Resldentlal (OR). To the Weet!e FlorldaBay Ilnd to the East!s US-I. ' ,6. The Monroo Coun~ Property Record Card indicates that the parcel ia 1.9 Acrea oC upland' and 0.71 acres oC bey bottom. Tho propsrty reeord card el80 Indfuatea there are threll (ll) bllildinll'8 on thlI property on~ a note wllich reads 'lUptide Trailer Park', 7. Staff has d,t.rmill.d that the condo hotel project would not be permitted in the URM land uee dtstriot. However, once the land use designation h88 be821 chongad. to MO, pursuant to MOlll'Oe Coullb' Cod, (MeC) Section 9.5-248, a hotel of tewer than 50 roomsie p&%mitte4 08 a mioor conditional use. . 8. MOO 8ac. 9.ll-lliO.. and Adm!ni.8ttative InuljlJ:etation 08-108 provide a consistent method to determine the llDIOunt of lawfully eatabUshed units fur propertlee entitled to ROGO 'ex&nptlone. Adminlah'otiV& Interpretation 08.108 include. review oC buildinrr permits, Rl,ol!clalKcyLqo 1IIIl'1IOOII1090.00001lO 2017 Mar. 7, 2008 10:39AM. ,. ( ( No. 7839 P. 16 Rl.1;j~23-29il& 1ilS:i!1P FROM: TOI9B52lla~B P.4'8 aerial photolrl'aphe, proper", record cards, utility recorde, pre-lS8El zoning. and occupational licerta... a. Bulldinll' Permit History {, Permit 02440 !'rom 1977 r~ tie downe t'or ullib SA; and ii. Pamit ClI91111'rom 1979 lor tie dowlllI tor IIIItt B2; and . Hi. Permit C6970 trom 1979 lor tI. downll for unit C6i and iy. Perlllit C6191 trom 1979 for lie clowna for ullit J,Q lue row: end v. P.rmit Oll.ll12 from 1980 for tie downs for IIIItt C1; end vi. P&rmit 09428 from 1981 for tie downs for rantallot 14: and vii. Permit Cl204S trom 1982 for Screen room" roof fol-unlt 05: and \'ill. Parmlt 018866 hom 1983 to In=ase eieotrlcala$r\>ice: and lx. Permit C18288 from 1983 for tie downs tor unit 06; and x. Permit C18828 from 1988 fur screen room for unit A7; and xl. Permit 014120 frolll198a for tie downs fOr unit 08: and. xii. Permit C168891'rom 1984 for tie downe for unit All; and . xlli. Permit 016910 from 1984 for aluminum roof and screen room tDl! uni~A2: and xlv, Permit 0161126 from 1985 forwindowa for IIIIttA6: and xv. Pel'lllit ClI09851:rom .1988 ibr. aCJ:een room for unit 010; and llVi. Permit OJlI097 from 1987 for a sCJ:een room lor unit Ollj $lid xvli. PerlQU 88-80-1888 to buUd a doalt: and xviii. PU'mlt 89-80-1846 to improve end install eleotdo pollia. Site plen for plana IIhows 36 spa~a: and xix. Parmit 99-81-1877 to Inspect electric metet box for units 9 & 10; and. xx. Permits 94-30.Q1l6 and 03.80.6614 for roofrepait: IlIId Xxi. PerMit 05.30.6426 to replace deoking and "tringetB. b. Aerlal photorraphs .how th~ OldstellCO of multiple structurea In 1959, 1985, 1886, 1989, 1990, 1991, 1989, 2003, 1I004 & 2001>: and c. County Property Record Card dated 7/29/08 shows tlu-ee buildlngs, i. B\1ilding 1 is one stOl'.!' bullt in 1966 IlIId 1,382 fts and noted as a hotellmote~ and iI. Building.2 was built In 1959 and Is '410~. This atruoture was re-roofed In 1986: and Ill. Building 8 waa buUt in 1980 and.1e 200 fI;2 and noted.....s .emoe .hop. County Property ReC/ll'd Card dated 07/03/98 shows three bulld:incs. l. Bulldinr 1 is one atory bullt In 1956 end 1,682 ft! and noted ae a hotal/motel; IlIId ii. Buildil1ll' 2 wes built I.. 1969 and ill 410 ft.'. ThlJ atRucture wu re-roated In 1981liand . iii. BIlUdfllg 3 WIl8 bullt in 1980 and is 200 ft. and noted ae a samoa slulp. c1. 1988 Moblle Home S1B'Vey noted 80 RV apaces and 21l1obi1tt home.; and :.r:~~OOllOOO hr7 Mar, 7, 2008 10:39AM ( c No, 7839 p, 17 RW~e3-20Iil6 es.22P FJllX1, TO. 965E1'1!HB f!'.!I'B e. Florida KeYll E1ectrlc Cooperative Re~d. deted April 1990. The record$ have individual, Iletlnse for 36 mUte; 4\1- 18; Bl- 9" 01- 14. There 18 alto a record for tha mote~ and an accoWlt that doeen't reference a unit number Dr the motel. Sta<< cannot coneider thie record B8 evidence of a rental unlt a. thle acoount could have powered the laundry roOIli, II common bath 1'OOllI, the ..rrice build1nr or anothel1 common element. t. Realdentlal and tfanaient U!l8. <leuld have been p....mitbld IlIlder the pre.19S6 coJlin, of the property which was BU-2 end BU~1 according to Mollroe County Oomprehenalva Zol:lln, Ordinance Malla 1978 and 1986- 9. Pursuant to SeD. 9.11-120.( and Admlnieuative Int81'pret4tion OS-108, PlannIn, Staff reqornizes a totel of forty-six (46) transient unite tor REfI 0091090.000000; 86 of thess I:rsneient unite are RVapacea, 10 ere mOlel rooms. 10. Plll'Suan~ to MOC 59.5.284, molel. ere not Pllflllitted in the URM land UI. dletnet. Recreational vellio epace ren~aI fa perlllilted 8S a rlrht with an allocated density of 5 spaces pet acre ox lll8JWnum donsil;y of 7 spaces per buildable acre. Under this current land UBe designatlDn, up t.o 10 recreationai vehicle .pacss could be redeveloped. 11. Thie property fa one of the mall chlUlres boinr Illonsor.d a. plU't of the Livable CommuniKefl Plan. 8M is supportinB' a land ~e designation chanKS frolD URM: to Mbced Use (MU). The MU land u.s district dOlla allow motels. Purauant to MCC I 9.5-267, the allocated hotel/motel density for the MU dietrict is 10 rOOIl1S per alll'e, and tha max. net. d811ail;y is l~ rOon1Sller bldldabls acre. Thle means that at allocated denllJty, 19 wOllla could be bullt. At Il1l1JL net. densIty, 28 rooms could be blillt. D8ll~i A1! Ri tido - MU Le.nd Uso Des' lion Max BIllld Net . able Dene Allocated Area ity Max Site Density in Fact Net ~ Factor acres Ql' 1IW U4 .Q 1.582 111 12. Although 46 transient realdentlal unite are ftcognized 011 the site, with a land uee deliKnation of MU, only 2S rooms mll,7 be built back on site. MOC Seotr.on U-2118 proteoCi the densIty of permanent residential units, but doe. not pwteot donelty for tranalenl reeidential uees. IUpd""""'" l.mp lift 00091fla6.000000 10" Mar. 7. 2008 10:39AM ( ( No. 7839 P. 18 ~-~-Wll6 I15fi!eP FRO'II TCI!lS02l!iE1'lil P.6/El 5eo. 9.WSS. BXlnh~1 r..ldentJal dwellbll', Notwithetandlngthe provlelons of 51 0.5-262 and 9.5.268. the DWn81111 alland upon whioh a IawfuUy "tablish.d dwelling unit or a mobile home, but not including tranaient realdllntlal units exIata shall be entitled to one (i) dwelHng unit for 8acll such unit In existence. Suoh legally-established dwellinr unit shall not be conSidered lIS a non-conibrmlnr Ule. 19. Tr8JIa!eut l'eeldential unite l'6coplzed Q lawi'uUf exulting on the efte but In excees of the planned redevelopm;nt mey be ellsible for tr81l8fer oft site and r;lllllpt at aoothe: location all .a transient unit Ol: an afrordable honfinll unit. Please eee MOO S 9.&.120.4 for more details. P1eaee be awau. however, that MOO I 9.5.120.8 prohibits transferring recreatlonel vehlole lIpacee offelte to be telllllved ae a hotel or motel room Uil'(lugh December 31. 2006. 14. Staft reminda applfoant that MOO Sec/ilon 9.8-4 provides a definition &r a hotel or motel room. (R-17)lloom, hold or 1II0lel, meaDll a unit in a public lodging establiehment as defined by Flllrida Statute. scotian 609.018(4)(8) intended for tran.ient lod~g only &r perlode not exoeeding thirty (SO) days. Traneiant OCCupanoy ehall oonfoml to tha definition COJItalned In Florida Statutes seotion 809.013(8) as to trana!eut occupancy. For the purlloaas ot density reetrl.otion UndM this ebapter: . (.) Hotel or motel room may he a s:Inrle room or a suite and may include a kitchenette but no more than one and one-half (1 112) bathrooms and one (1) hedroom and one (1) other Iivinlr area; (b) All entrances '10 a hotel or motel room shall ehate the SanlO key or means of controlling acoese 80 thet the hold or motel room as defined herein I, not div:leib1e lnto a&pa1'at:elf l'entable unital and (e) Suitae containing mOle than one (1) bedroam and olle and one.halt (1 112) bathe ma,y be OC)Jletructed; however, each bedroollllbath combination Ilhell be considered a hotel/motel unit. 111. PUlSuant to MOO Seation 9.6-281, the MU District requires the rollolYins setbaoka: twenty- live (25) feet front setbacka, twenty-five (25) teet rear letbacks and a minlm1Ull mile side yard setbaok of ten (10) feet and .. total side yatd "tbaok requirement of fifteen (16) feat. The front yard Is oone!dered to be along US-I. IG. Pursuant to MOO Section 9.5-283, the heilht al the building shall not exceed thirty-five (8li) feet Height Illllan. the verltcal dl8tance between average grade alld the highest part al any structure. ThereCote, 8~ building at tha site cannot exceed 86 feet in heirht from ths pre- mnatructlon erade at the buildlnS site at crown ofroad, wbiohever Ie higher. . 17. The prope:f\y hat three (8) flood zonee punuent to the Flood lneul8JlCll Rata Map tReviasd Fabruary 18, BOOII). Cloleet to Os..l, ths paroel i9 an X flood zone. .Ae the pa:cel approaoh.. Fllmida Bay, the flood _I becomes ,AE-9 A 10, and nsar the lhoreJine, the flood zone la VE. 18. If a part of any structure - including roof overhanee . crOIsee flood zones, the entire atruotura mUlt be built to comply with the stllJ1dards of ~s most reatricti"e flood zone. The site plllll must Include elavatID1llI referenced to National. Geodetfc Vertical Datum (NGVD) Bnd l1ood,Zone Information. . RiplidolKoy LIlJO 1lII;t OOOlJl0lO.ocoOllO 5017 Mar, 7, 2008 10:40AM ( ( , No, 7839 p, 19 ,1'lJS-2J-i2!Ilil6 as.EJp 1'RIl'11 TO'ge5il8~qe P.7'8 IS. Pursuant to MCO Section 9,5.862, total parkin, for a hotel it one (1) space for the first bedroom pllUl IS apace tor each additional bedroom per lIIIit. Beaed upon the proposed site plan submItted, each IIDit only has 1 bedroom. There1btt, 1 apace Ie required tor each unit. 19. Pu'.""nt tQ MOO 9.8-817, a Cl... C boundary buffer ie reqluud lllong the .outho.n edae of the property. A OLlRS C bulte~ard esn renge from ten (1.0) to twenty five feet. Pursuant to MOO 9,6.8'78, a major street buffaJt will be requirl!d alanll US.!. A ClaQ B bufteryard can range &om ftw (6) to twenty (20) feet. The buff8re must be landscaped and clear at development, Including paYhlg., Existing native vsaetatlon lllll)' be used to sesiat in meeting tile buJl'er yard requlrements. No varlanoe is permi~d to the buffer yard'requiremente. lIO. Punuent to MOO 9,6.861, requires that a~ site plan. inaludin, more tblUl llix (6) parkin; speo.. be l:8qui.l.'ed to in,tall parldnl\' lot landsoapIng, 21. Pursuant tQ MCC 8eotlon' 9.5.427, clear alght trlangles ehaIl be provided on all entrallCll drives andlltl:eet inter811atlone in both directions and shall be included on the &ite plan. The site trianrJe for US. 1 requires that the 'dietan.:e ti:olll the edge of pavement of the stcast to the point on the dtive at which olear sight dietance Ie required i8 thirty (30) feet. The dHtance meseured aiOJ1&' the centel' line of US-I, from the centerline at the Bntranoe to the pofnt where an oncoming vehicle must be vfaible is 800 feet. ~. 8tormwater must be retained ollllite with Bwales or approved clrBinare. A Starmwater Management Plan will be required fur the proposed project. The plSll must be prepared line! eealed by II profeee!onalenllineerand approved by the Collnty Engfnesr. . 23. It is the determination of stalf that the ~horeline of thia property hae been altered by the lel81 placelllent of flU bllt it i. not adjacent to a manmade canal, ohannel or bae1n. The shoreline setback shall b. 50' from tile meSD high wa.... M&1'k Or II the eppli.ant so deaires may be reduced to SO teet bom mean high wst$r if a landecs.l'e bllflllr 10 leat w-i& is planted end mAintsined along the ahoreliDe 8J:ld ia plaCl!d llllder a grant of COII8ervation easement running in favor of Monroe Coun~. This buft'er shall be planted to a oJaas "(J' standard ae indicated In the Monroe County Lend Devalopll1ent Regulatlone. Thie will raqllire a total at .' Ave (6) canopy trees, 2 understory trees and 19 shrubs.. 24. The property is not subject to coordination With the United States Fieh and WiidI1le Oo...mtuion. $, A~ protected species of vegetation 1'llmoved from Rite shall be mitigated for at a ratJo at 2:1 aCt!O,\'d!nI to the Monroe COllllty ofBcIaJ plant price llat. ThIs mitigation must be paid prior to permit le8l18nCe to the MOII1'Oe County BlIildinll Department. If this property fa subject to a oonditional use approval, the l'1aMing Commlsaion I, empowered II11lItr Section 9.6.63 to modi{y or deny any application based 011 their review of ths approprlatelleSB of the propoeeci development within the contellt at surrounding propertlee and ~pliance with the LDRe and lIOI0 Comp.tehenai"" Plan. In RealiGn 9.5.86 the Plall1ling CGmmis_ and tIle PIaIlllint' Dheam are required to oonalder all l18pS<lte of the develo.l'ment, nnpacts OIl the OO_unIty and consiate~ with !he rasia. objectives and atanclarde of the plan and LDRe befora lI1'anting cond.itiona.l use 8,pproVll, approval with OOlldftiGn, or dell1al of a project. Theretbre, the intaneit1ee, den4Wee IInd p08eib.iliti~ 1br setback Walve~s detailed in this LOU are sllbJec6 to the f'lanning Commission and/or the PlanniJlr Director oonditional uee review and approvaL RIofidollCq LillO U. oo0910eO,000000 '.,.1 Mar. 7, 2008 10:40AM ( , 4lUIIH.!3-2l'I1!I6 iI!5.i!'IP 1fIDI. . . ( TC.9ll52&&lB No, 7839 p, 20 P.S/S Pursuant to SectiQn 9,6-43 of the Molltoe Count.}' Land Development Rell'uIationa (lJJRe), you Are entitIecl to rely upon the repre8flntationB Bet 1b1:111 in this letter of underetanding and letter of determlnation of development right, as aCClUtate under the re,ulation! currently in efl'ect. This letter do.! not provide any veeUnIl to the exbtin, recu1atione, if the PIen or LD& ere llll1ended the property and/or proJtot will be required to be oonei&tent with all Coole, objeotiv88 and etandard. at the tillle of development approvlll. The PIennins Department 8lIknowlB<!&ee that all item. required as a part of the appUcation ft)r development apPl'Oval may no!; have been addreued at the October 18, 2004 meeting, end conaequently reserveB the rlght fOI additional department comment. The inforJlJeldon provided in tlll8letler may be relied upon, with the previous dillolaimera, fur a period of three years. The PIlUUllnJ Direetol:' upon the l"equeet of the landowner may review and reaffirm the .epreB~tatlOIl8 set forth in t!lis lette. 1M an, aclditlonal periOd of time. Web.ouet that tbie lntormation I. of aeeietance. It you have any que.tlOftB regarding the OOlltllnte of thie letler, or if we may further aeBiat you with your projllJlt, pleaee feel free to contact our Plantation office at (805) 852-7100. \ Since Aref oulen!, Directo. Planning and Environmental Resources co; Ervin Higgs, Property Allpraieer Ty SyllU'08ld, DirflCtor ot Growth Manall'8ment Julianns Thomaa, Pl4nner Ronda Norlll8!l, Sr. Director of Code Enforoament Joe Paskallk, S~. Ilil:eotorlBullding Official RfpdldKoy Ulp lIiUllOtloeO,OOIlOOO ,.n -Mar, 7, 2OOs-10:40AM-", ,'--- " Monroe County, FL - Evac( In -.-- .-.'-. . - --..,- ......, . . Exhibit "e" ... -,-, ----No. 7839 "-p, 2 t , ( Page 1 of! EVacuation Who sh"uld Evacuate? . CategOlY 3, 4, AND 5 Hurricanes: . By .alate statute, all persons are required to comply with an evacuallon order, In this case, you will be directed to go 10 lhe . mainland. FOR ANY HURRICANE: All Rersons lhallive In Il\Pbile homes. travel !railers. recreal/on.1 vehicles fRVs). and ~ are required 10 evacuale, Wlhoul regard to structure type, all persons fhatllVe In low~ying areas or directly adjacenlto the water will receive a recommendation to evacuate. All parsons thai are sick, alderly, or disabled wll/ receiVe a recommendation 10 evacuate Ihe mainland. All women In their third trimester of pregnancy will receive a recommendallon to evacuate. All non-residents and Visitor. 10 the Florida Keys. An evaCuation is a slow, frustrating, time consuming experience, Evacuees exercise extreme caullon in lraffic, because they do not wish to loose Iheir means of lransportal/on. Provisions have been (!lede to close USI and move remaining ltVBCUSeS into Ihs safest slructures available, as weather cOnditions deteriorate. You will nol be caughl on 1I1'a hlghwily during landfall of any liurrlcane. Remember lhese Importanl pain Is, while evacuallng: Be prepared 10 leave early Selsct and confirm your deslinallon before leaving. Select your primary and altern ale evacuation roules prior to leaving. Take detailed maps of arees around your deslinsl/on and along your evacuallon route. Monllor 10':81 media for ImporlsnllnformaUon from Emergency ManBlJement. Fill your Oafs fuel tank, first. Check all "uld levels In your car. Check your spare tire and lire changing. equipment Take en adequate supply of food and water Have suffldenl cash to meel your needs Dangerous winds cen ollen precede a hurricane by many hour.. All porsons evacuating wllh . larga vehicle and lhose persons planning to Iowa trailer or boat ale requlrellto laave early. Laler In an evacuation, these vehicles will be removed from traffic. http:JAw.w.monro.counly-tl.gO'lIP~NlMGnroleor:LJ:mergencyIEV'CUlIIOll/ ... " ... .. ~. .............. . . .' DCA Final Order No.: DCA08-0R-044 STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS In re: MONROE COUNTY LAND DEVELOPMENT REGULATIONS ADOPTED BY ORDINANCE NO. 043-2007 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. (2007), rejecting a land development regulation adopted by a local govermnent within the Florida Keys Area of Critical State Concern as set forth below. FINDINGS OF FACT 1. The Florida Keys Area is a statutorily designated area of critical state concern, and Monroe County is a local govermnent within the Florida Keys Area. 2.. On December 17,2007, the Department received for review Monroe County Ordinance No. 043-2007, adopted by Monroe County on November 14,2007. 3. The purpose of this Ordinance is to amend Chapter 9.5 of the Land Development Regulations to include "transient residential units' that are legally, lawfully established to have a vested right to replace or substantially improve those units on a one-for-one basis regardless of the density. 4. The Department has reviewed the Ordinance for consistency with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 2010 Comprehensive Plan. 1 .S ~ .t> 's </ &1: c= ~~ 5f;r;l ~ III it' :l .' DCA Final Order No.: DCA08-0R-044 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. (2007). 6. Monroe County is a local government within the Florida Keys Area of Critical State Concern. ~ 380.0552, Fla. Stat. (2007) 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. (2007). The regulations adopted by Ordinance No. 043-2007 are land development regulations. 8. AU 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), afJ'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. 043-2007, which allows transient residential units to have a vested right to replace or substantially improve those units on a one-for-one basis regardless of the density is not consistent with the following Principles: Principle (a): To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives 2 DCA Final Order No.: DCA08-0R-044 without the continuation of the area of critical state concern designation. Principle (j): To make available adequate affordable housing for all sectors of the Florida Keys. Principle (Ie): To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for post disaster reconstruction plan. II. Ordinance No. 043-2007 is neutral in effect on the remaining Principles. 12. Ordinance No. 043-2007 is inconsistent with the following provisions of the 2010 Monroe County Comprehensive Plan that limit the vesting of density to legally established residential dwelling units and transportation impacts: Policv 101.4.23 Notwithstanding the density limitation set forth in Policy 101.4.21, land upon which a legally-established residential dwelling unit exists shall be entitled to a density of one dwelling unit per each such unit. Such legally-established dwelling unit shall not be considered as non-confonning as to the density provisions of Policy 101.4.21 and the Monroe County Code. 13. The Ordinance is inconsistent with the following Comprehensive Plan Elements: Obiective 216.1 Monroe County shall reduce hurricane evacuation clearance time to 24 hours by the year 2010. Obiective 217.3 By January 4, 1997, Monroe County shall adopt Land Development Regulations which direct future growth away from the Coastal High Hazard Area (CHHA). Policv 301.1.2 For US-I, Monroe County hereby adopts a level of service (LOS) standard of C based on the methodology developed by the US-I LOS Task Force and adopted by the Board of County Commissioners in August 1991, for analyzing the LOS on US-I in Monroe County. This methodology replaces a peak hour volume standard for US-I. The level of service on US-I shall be maintained within (5%) 3 DCA Final Order No.: DCA08-0R-044 of LOS C. Obiective 301.2 Ensure that all roads have sufficient capacity to serve development at the adopted LOS standards concurrent with the impact of said development. 13. Ordinance No. 043-2007 is inconsistent with the Principles for Guiding Development of the Florida Keys Area ofCritieal State Concern and Monroe County's Comprehensive Plan. WHEREFORE, IT IS ORDERED that Ordinance No. 043-2007 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. ,~~~:,~ 3'''IlDirector, 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 ADMINISTRATNE 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 ADMINISTRATNE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND 4 , . DCA Final Order No.: DCA08-0R-044 CHAPTER 28-106, PARTS I AND m, FLORIDA ADMINISTRATNE CODE. IN AN INFORMAL ADMINISTRATNE PROCEEDING, YOU MAY BE REPRESENTED BY COUNSEL OR BY A QUALIFIED REPRESENT ATNE, 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 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 ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATNE LAW moGE OF THE DNISION OF ADMINISTRATNE HEARINGS, PURSUANT TO SECTIONS 120.569 AND 120.57(1), FLORIDA STATUTES, AND CHAPTER 28-106, PARTS I AND n, FLORIDA ADMINISTRATNE 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 ADMINISTRATNE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECENED 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 ADMINISTRATNE 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 ADMINISTRATNE 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 ADMINISTRATNE CODE. CHOOSING MEDIATION DOES NOT AFFECT THE RIGHT TO AN ADMINISTRATNE 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. 5 " . DCA Final Order No.: DCA08-0R-044 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 ~d~rrect copies have been furnished to the persons listed below by the method indicated this ..--day of February, 2008. tJrn By U.S. Mail: Honorable Charles "Sonny" McCoy 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 Growth Management Director 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 By Hand Delivery or Interae:ency Mail: Craig Diamond, Bureau of State Planning, DCA Tallahassee Rebecca Jetton, ACSC Administrator, DCA Tallahassee Richard E. Shine, Assistant General Counsel, DCA Tallahassee 6 DCA FinalOrder No.: DCA08-0R-044A STATE OF FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS In re: MONROE COUNTY LAND DEVELOPMENT REGULATIONS A])OPTED BY ORDINANCE NO. 043-2007 DOAH No. 0~16~G~ ::1 :'.!: C') ::;.. '-0 r- ;7:~~E; e g: I . I ;:7)'" ::z (j :;r.; !"- d '.::' C) .::;%;: 00 ::0 S? :ra. ::0 AMENDED FINAL ORDER _...;~~)== :z rt1 :'", ;-i .l> \D c:-:> The Department of Community Affairs (the "Department") hereby issue;,1t's~etided~ \D C / Final Order, pursuant to ~ 380.05(6), Fla. Stat., and ~ 380.0552(9), Fla. Stat. (2008), 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 1. 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 December 17, 2007, the Department received for review Monroe County Ordinance No. 043-2007, adopted by Monroe County on November 14,2007. 3. On February 15,2008, the Department issued Order No. DCA08-0R-044 rejecting Ordinance No. 043-2007 as inconsistent with the Principles for Guiding Development, ~ 380.0552(7), Fla. Stat. 4. On March 7, 2008, a Petition for Formal Administrative Proceeding was filed at the Division of Administrative Hearings by Petitioner EL EL SI, LLC, in Case No. 08-1601 GM. 5. Thereafter the Department and the Petitioners participated in settlement negotiations to resolve the consistency issue. On March 9, 2009, the Department filed a Joint Motion to Cancel Final Hearing and Relinquish Jurisdiction. On March 10, 2009, the Division of Administrative Hearings issued an Order Closing File and relinquishing Jurisdiction to the DCA Final Order No.: DCA08-0R-044A Department. 6. The purpose of this Ordinance is to amend Chapter 9.5-268 of the Land Development Regulations to allow "transient residential units" that are legally, lawfully established to replace, redevelop or substantially improve those units on a one- for-one basis regardless of the density upon conformance with the open space, height, set back and water quality requirements found in the Monroe County Land Development Regulations. 7. The Department has reviewed the Ordinance for consistency with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern and the Monroe County 2010 Comprehensive Plan. CONCLUSIONS OF LAW 8. 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. S 380.05(6), Fla. Stat., and S 380.0552(9), Fla. Stat. (2008). 9. Monroe County is a local government within the Florida Keys Area of Critical State Concern. S 380.0552, Fla. Stat. (2008) and Rule 28-29.002 (superseding Chapter 27F-8), Fla. Admin. Code. 10. "Land development regulations" include local zoning, subdivision, building, and other regulations controlling the development of land. S 380.031 (8), Fla. Stat. (2008). The regulations adopted by Ordinance No. 043-2007 are land development regulations. 11. 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 Rathkamo v. Deoartment of Community Affairs, 21 F .A.L.R. 1902 (Dec. 4, 1998), aff d, 740 So. 2d 1209 (Fla. 3d DCA 2 DCA Final Order No.: DCA08-0R-044A 1999). The Principles are construed as a whole and no specific provision is construed or applied in isolation from the other provisions. 12. Additionally, ~ 163.3194(1)(b), Florida Statutes, requires that all land development regulations must be consistent with the local government's adopted comprehensive plan. 13. Ordinance No. 043-2007, which allows transient residential units to have a vested right to replace or substantially improve those units on a one-for-one basis upon conformance with the open space, height, set back and water quality requirements found in the Monroe County Land Development Regulations is consistent with the following Principles: Principle (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. Principle (d): To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. Principle (k): To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for post disaster reconstruction plan. 14. Ordinance No. 043-2007 is neutral in effect on the remaining Principles. 15. Ordinance No. 043-2007 is consistent with the following provisions of the 2010 Monroe County Comprehensive Plan: Policy 101.4.23 Nohvithstanding the density limitation set forth in Policy 101.4.21, land upon which a legally-established residential dwelling unit exists shall be entitled to a density of one dwelling unit per each such unit. Such legally-established dwelling unit shall not be considered as non-conforming as to the density provisions of Policy 101.4.21 and the Monroe County Code. 16. Ordinance No. 043-2007 is consistent with the Principles for Guiding 3 DCA Final Order No.: DCA08-0R-044A Development of the Florida Keys Area of Critical State Concern and Monroe County's Comprehensive Plan. W'HEREFORE, IT IS ORDERED that Ordinance No. 043-2007 is found to be consistent with the Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is found to be consistent with the Monroe County Comprehensive Plan, and is hereby APPROVED. DONE AND ORDERED in Tallahassee, Florida. ~11~ CHA. L SlfAUTHrnR, AIC 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 MA TERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A FORMAL HEARING. IF Y'OUR 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 MAYBE 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. 4 DCA Final Order No.: DCA08-0R-044A 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 ADMINISTRA TIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND YOU WILL HA VE 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. 5 DCA Final Order No.: DCA08-0R-044A 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 c.ogect copies have been furnished to the persons listed below by the method indicated this /51'(fay of June, 2009. By U.S. Mail: Honorable George Nugent Mayor of Monroe County 25 Ship's \Vay Big Pine K.ey , Florida 33043 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Andrew Tr:i vette Growth Management Director 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 James S. Morris, Esq. Storch, Morris & Harris, L.L.C. 420 S. Nova Road Daytona Beach, Florida 32114 By Hand Delivery or Interagency Mail: Craig Diamond, Bureau of State Planning, DCA Tallahassee Rebecca Jetton, ACSC Administrator, DCA Tallahassee Richard E. Shine, Assistant General Counsel, DCA Tallahassee 6