Ordinance 020-2008
ORDINANCE NO. 020 -2008
AN ORDINANCE AMENDING SEC. 9.5-258 OF THE MONROE COUNTY
CODE TO ALLOW THE PROVISION OF CENTRAL WASTEWATER
SERVICE AND SUPPORT UTILITIES TO DEVELOPED PROPERTIES
LOCATED WITHIN THE COASTAL BARRIER RESOURCES SYSTEM;
PROVIDING FOR SEVERABILITY; PROVIDING FOR THE REPEAL OF
ALL ORDINANCES INCONSISTENT HEREWITH; PROVIDING FOR THE
INCORPORATION INTO THE MONROE COUNTY CODE; AND
DIRECTING THE CLERK OF THE BOARD TO FORWARD A CERTIFIED
COPY OF THIS ORDINANCE TO THE FLORIDA DEPARTMENT OF
COMMUNITY AFFAIRS AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the Coastal Barrier Resources Act (CBRA) of 1982 established the Coastal
Barrier Resources System (CBRS) to restrict the federally subsidized development of coastal
barrier areas (SEE 16 U.S.C. 3504(a)(I)); and
WHEREAS, Monroe County has 22 designated units of the CBRS identified by the U.S.
Fish an Wildlife Service; and
WHEREAS, Objective 102.8 of the Monroe County Year 2010 Comprehensive Plan
states: "Monroe County shall take actions to discourage private development in areas designated
as units of the Coastal Barrier Resources System [9J-5.006(3)(b)4]"; and
WHEREAS, Policy 102.8.5 of the Monroe County Year 2010 Comprehensive Plan
states: '''Upon adoption of the Comprehensive Plan, Monroe County shall initiate efforts to
discourage the extension of facilities and services provided by the Florida Keys Aqueduct
Authority and private providers of electricity and telephone services to CBRS units"; and
WHEREAS, on December 18, 2001, the Board of County Commissioners adopted
Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which established
a Coastal Barrier Resources System Overlay District, the purpose of which is to implement the
policies of the comprehensive plan by prohibiting the extension and expansion of specific types
of public utilities to or through lands designated as a unit of the Coastal Barrier Resources
System; and
WHEREAS, pursuant to Chapter 99-395, Laws of Florida, Monroe County has
been mandated by the State of Florida to provide a centralized sewer system by 2010 as a
means of improving near shore water quality within the Florida Key; and
WHEREAS, on June 18, 2008, the Growth Management Staff was directed by the Board
of County Commissioners to amend the comprehensive plan and land development regulations to
reword the prohibition on utilities such that the focus and priority be placed on wastewater first
and any discussion of electric or any other utility, other than those required to efficiently support
a central wastewater collection system, be deferred until the wastewater goal is accomplished;
and
Page 1 of3
Initials
W:IGROWTH MANAGEMENTIBOCCIGMD Agenda Itemsl200809171CBRS LDR AmendlAdopted
Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs _ LDR
(Amended).doc
WHEREAS, during a regular meeting held on July 23, 2008, the Monroe County
Planning Commission conducted a public hearing on the proposed text, and recommended
approval of the proposed text; and
WHEREAS, the Monroe County Board of County Commissioners held a public hearing
on the proposed amendments to the Monroe County Code submitted by the Monroe County
Planning Department; and
WHEREAS, it is the desire of the Monroe County Board of County Commissioners that
the following amendment to the Monroe County Code be approved, adopted and sent to the state
land planning agency for approval;
NOW THEREFORE; BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section I.
Chapter 9.5, Article VII Division 2 is hereby amended as follows:
Sec. 9.5-258. Coastal barrier resources system overlay district
(a) Purpose: The purpose of the Coastal Barrier Resources System Overlay District is
to implement the policies of the comprehensive plan by prohibiting the extension and expansion
of specific types of public utilities to undeveloped properties within a unit of the Coastal Barrier
Resource:s System.
(b) Application: The Coastal Barrier Resources System Overlay District shall be
overlaid on all areas, except for Stock Island, within federally designated boundaries of a Coastal
Barrier Resources System Unit on current Flood Insurance Rate Maps approved by the Federal
Emergency Management Agency, which are hereby adopted by reference and declared part of
this chapter. Within this overlay district, the transmission and/or collection lines of the following
types of public utilities shall be prohibited from extension or expansion only to undeveloped
properties located within a CBRS Unit: central wastewater treatment collection systems; potable
water; electricity; and telephone and cable. This prohibition shall not preclude the provision of
those utilities required to provide central sanitary wastewater collection and treatment nor the
maintenance and upgrading of existing public utilities in place on the effective date of this
ordinance and shall not apply to wastewater nutrient reduction cluster systems.
Section 2.
this ordinance is held
validity.
If any section, subsection, sentence, clause, item, change, or provision of
invalid, the remainder of this ordinance shall not be affected by such
Section 3. All ordinances or parts of ordinances in conflict with this ordinance are
hereby repealed to the extent of said conflict.
Section 4. This ordinance shall be transmitted by the Planning Department to the
Department of Community Affairs to determine the consistency of this ordinance with the Florida
Statutes.
Page 2 00
Initials
W:\GROWTH MANAGEMENTIBOCCIGMD Agenda Items\200809171CBRS LDR AmendlAdopted
Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs _ LOR
(Amended).doc
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Section 5. This ordinance shall be filed in the Office of the Secretary of State of
Florida, but shall not become effective until a notice is issued by the Department of Community
Affairs or Administrative Commission approving the ordinance.
Section 6. The Director of Growth Management is hereby directed to forward a
copy of this ordinance to the Municipal Code Corporation for the incorporation into the Monroe
County Code of Ordinances once this ordinance is in effect.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida at a regular meeting held on the 17th day of September, A.D., 2008.
Mayor Mario DiGennaro
Mayor Pro Tern Charles "Sonny McCoy
Commissioner Sylvia Murphy
Commissioner George Neugent
Commissioner Dixie Spehar
Yes
Yes
No
No
Yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
BY
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Mayor Mario DiGennaro
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';:-:'~~~~~/{)ANNY KOLHAGE, CLERK
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Initials
W:\GROWTH MANAGEMENT\BOCC\GMD Agenda Items\20080917\CBRS LDR AmendlAdopted
Wastewater Ordinance with changes from BOCC and no underlines or strikethroughs _ LDR
(Amended).doc
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 HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
BRANCH OFFICE:
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARA THON, FLORIDA .33050
TEL. (305) 289-6027
FAX (305) 289-1745
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
www.clerk-of-the-court.com
ROTH BUILDING
50 HIGH POINT ROAD
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 853-7440
October 14,2008
Ms. Liz Cloud, Program Administrator
Administrative Code & Weekly
R.A. Gray Building
500 S Bronough Street
Tallahassee FL 32399-0250
Via Certified Mail 7005 1160 0000 38412082
Dear Ms. Cloud,
Enclosed is a certified copy of Ordinance No. 020-2008 amending Section 9.5-258 of the
Monroe County Code to allow the provision of Central Wastewater Service and Support Utilities
to developed properties located within the Coastal Barrier Resources System; Providing for
severability; Providing for the repeal of all Ordinances inconsistent herewith; Providing for the
incorporation into the Monroe County Code; and directing the Clerk of the Board to forward a
certified copy of this Ordinance to the Florida Department of Community Affairs and providing
an effective date.
This Ordinance was adopted by the Monroe County Board of County Commissioners at a
Regular Meeting, held in formal session, on September 17, 2008. 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
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FLORIDA DEPARTMENT of STATE
. .
CHARLIE CRIST
Governor
STATE LIBRARY AND ARCHIVES OF FLORIDA
KURT S. BROWNING
Secretary of State
Honorable Danny L. Kolhage
Clerk of Circuit Court
Momoe County
500 Whitehead Street, Suite 101
Key West, Florida 33040
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October 16,2008
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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 October 14, 2008 and certified copy of Momoe County Ordinance No. 020-2008, which was
filed in this office on October 16,2008.
Sincerely,
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Liz Cloud
Program Administrator
LC/srd
DIRECTOR'S OFFICE
R.A. Gray Building' 500 South Bronaugh Street. Tallahassee, Florida 32399-0250
850.245.6600 . FAX: 850.245.6735 . TDD: 850.922.4085 . http://dlis.dos.state.n.us
COMMUNITY DEVELOP11ENT
850.245.6600 . FAX: 850.245.6643
STATE LIBRARY OF FLORIDA
850.245.6600 . FAX: 850.245.6744
STATE ARCHIVES OF FLORIDA
850.245.6700. FAX: 850.488.4894
LEGISLATIVE LffiRARY SERVICE
850.488.2812 . FAX: 850,488.9879
RECORDS MANAGEMENT SERVICES
850.245.6750 . FAX: 850.245.6795
ADMINISTRATIVE CODE AND WEEKLY
850.245.6270 . FAX: 850.245.6282
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DCA Final Order No.: DCA08-0R-352
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
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In re: MONROE COUNTY LAND
DEVELOPMENT REGULA TrONS
ADOPTED BY MONROE COUNTY
ORDINANCE NO. 020-2008
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FINAL ORDER
The' Department of Community Affairs (the "Department") hereby issues its Final Order,
pursuant to SS 380.05(6), Fla. Stat., and S 380.0552(9), Fla. Stat. (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
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 October 17, 2008, the Department received for review Monroe County
(County) Ordinance No. 020-2008 ("Ord. 020-2008"), adopted by the County on September 17,
2008.
3. The purpose ofthe Ordinance is to amend Section 9.5-258 ofthe Monroe County
Code to allow the provision of wastewater service and support utilities to developed properties
located within the Coastal Barrier Resources System (CBRS) Overlay.
4. The Coastal Barrier Resources Act (CBRA) of 1982 established the CBRS to
restrict the federally subsidized development of coastal barrier areas. See 16 U.S.C. 3504(a)(I).
5. On December 18,2001, the Monroe County Board of County Commissioners
adopted Ordinance No. 043-2001, creating Section 9.5-258 of the Monroe County Code which
established the CBRS Overlay District, the purpose of which is to implement the policies of the
Comprehensive Plan by prohibiting the extension and expansion of specific types of public
DCA Final Order No.: DCA08-0R-352
utilities to or through lands designated as a unit of the CBRS.
6. On June 18, 2008, the Monroe County Board of County Commissioners directed
the Growth Management Staff to amend the Comprehensive Plan and Land Development
Regulations to reword the prohibition on utilities such that the focus and priority be placed on
wastewater first and any discussion of electric or any other utility, other than those required to
efficiently support a central wastewater collection system, be deferred until the wastewater goal
is accomplished.
7. Section 163.3202, Florida Statutes, however, requires that land development
regulations contain specific and detailed provisions necessary to implement the adopted
comprehensive plan which discourages the extension of facilities and utility services to CBRS
units and prohibits public expenditures for new or expanded facilities in areas designated as units
ofthe CBRS except for expenditures necessary for public health and safety. While the County's
Comprehensive Plan does not prohibit the extension of facilities and services into CBRS units,
Ordinance 020-2008 conflicts with the County's policies discouraging both private and public
investments: in CBRS units for new or expanded facilities.
8. A comprehensive plan amendment is necessary to resolve this conflict and clarify
that the extlmsion offacilities and services to specific areas in CBRS units, including No Name
Key, designated as Hot Spots for central sewer may be necessary for water quality improvement
as well as for financial feasibility and economies of scale in construction of regional wastewater
plants.
9. The provision of central wastewater treatment and collection facilities through or
to CBRS areas to developed properties may be one option to satisfy the treatment standard
requirements of Section 6 of Chapter 99-395 Laws of Florida. However, sufficient data and
analysis has not been provided to address the capital cost allocation issues associated with the
provision of central wastewater treatment and collection systems, and where needed, the cost for
the provision of electrical service to the CBRS units
2
DCA Final Order No.: DCA08-0R-352
10. Momoe County staff has indicated that the County will be moving forward with a
Comprehensive Plan amendment to address any conflicts with the Comprehensive Plan in the
County's first amendment cycle in 2009. Although the Department is encouraged by the
County's efforts to provide central sewer to No Name Key, since the current wastewater
construction schedule does not anticipate completion ofthe new facility for several years, the
County has an opportunity to provide an analysis of the magnitude of the additional public
facility costs.
II. If the intent ofthe County is to provide wastewater only to No Name Key within
the CBRS units, the Department would recommend the County first adopt any necessary
Comprehensive Plan amendments and subsequently revise Ordinance 020-2008 to target its
application to No Name Key.
CONCLUSIONS OF LAW
12. 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. g 380.05(6), Fla. Stat., and g 380.0552(9), Fla. Stat. (2007).
13. Momoe County is a local government within the Florida Keys Area of Critical
State Concc:rn. g 380.0552, Fla. Stat. (2007) and Rule 28-29.002 (superseding Chapter 27F-8),
Fla. Admin. Code.
14. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development of land. g 380.031 (8), Fla. Stat. (2007). The
regulations adopted by Ord. 020-2008 are land development regulations.
15. 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 g 380.0552(7), Fla. Stat. See Rathkamp v. Department of
Community AjJairs, 21 FAL.R. 1902 (Dec. 4,1998), ajJ'd, 740 So. 2d 1209 (Fla. 3d DCA
1999). The Principles are construed as a whole and no specific provision is construed or applied
3
DCA Final Order No.: DCA08-0R-352
in isolation from the other provisions.
16. Ord. 020-2008 fails to promote and further 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.
(b) To protect shoreline and marine resources, including
mangroves, coral reef formations, seagrass beds, wetlands, fish
and wildlife, and their habitat.
(h) To protect the value, efficiency, cost-effectiveness, and
amortized life of existing and proposed major public
investments, including:
I. The Florida Keys Aqueduct and water supply facilities;
2. Sewage collection and disposal facilities;
3. Solid waste collection and disposal facilities;
4. Key West Naval Air Station and other military
facilities;
5. Transportation facilities;
6. Federal parks, wildlife refuges, and marine sanctuaries;
7. State parks, recreation facilities, aquatic preserves, and
other publicly owned properties;
8. City electric service and the Florida Keys Electric Co-
op;and
9. Other utilities, as appropriate.
(i) To limit the adverse impacts of public investments on the
environmental resources of the Florida Keys.
17. Ord. 020-2008 is inconsistent with the Principles for Guiding Development as a
whole.
WHEREFORE, IT IS ORDERED that Ord. 020-2008 is found to be inconsistent with the
Principles fiJr Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby REJECTED.
This Order becomes effective 21 days after publication in the Florida Administrative
W eekly unl,~ss a petition is filed as described below.
4
DCA Final Order No.: DCA08-0R-352
DONE AND ORDERED in Tallahassee, Florida.
~-' J.~
CH S GAUTHIER, AICP
Director, Division of Community Planning
Department of Community Affairs
2555 Shwnard 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 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.
5
DCA Final Order No.: DCA08-0R-352
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 ~~ct copies have been furnished
to the persons listed below by the method indicated this -fII--aay of December, 2008.
r aula Ford, Agency er
By U.S. Mail:
Honorable Mario DiGennaro
Mayor of Monroe County
Florida Keys Marathon Airport
9400 Oversl~as Highway, Suite 210
Key West, Florida 33050
6
DCA Final Order No.: DCA08-0R-352
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
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
7
Final Order No. DCA09-0R-I06
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
ROBERT REYNOLDS,
Petitioner,
vs.
MONROECOUNTYORDWANCE
NO. 020-2008
DEPARTMENT OF COMMUNITY
AFFAIRS, an agency of the State of
Florida,
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FINAL ORDER OF DISMISSAL
Petitioner ROBERT REYNOLDS commenced this proceeding on December 16,2008, by
filing a Petition with the DEPARTMENT OF COMMUNITY AFFAIRS for an Administrative
Hearing pursuant to Sections 120.569 and 120.57, Florida Statutes.
Petitioner challenges DCA Final Order No. DCA08-0R-352 finding Monroe County
Ordinance No. 020-2008 inconsistent with Section 380.0552(7), Florida Statutes, the Principles
for Guiding [)evelopment of the Florida Keys Area of Critical State Concern.
On February 18, 2009, the County adopted Ordinance No. 003-2009, which repealed in
its entirety Ordinance No. 020-2008. By repealing the Ordinance pursuant to which the disputed
land development regulation was adopted, the County eliminated the compliance issue in this
matter.
Thereafter, on April 22, 2009, the Department issued DCA Final Order No. DCA09-0R-
107 vacating DCA Final Order No. DCA08-0R-352. A copy of DCA Final Order No. DCA09-
OR-I07 is attached hereto as Exhibit A. A copy of Ordinance No. 003-2009 is attached hereto as
1
Final Order No. DCA09-0R-I06
Exhibit B.
ORDERED that this proceeding be, and hereby is, dismissed and the Agency Clerk is
hereby authorized and directed to close the file in this proceeding.
DONE AND ORDERED in Tallahassee, Florida.
Shaw P. Stiller, Gene ounsel
DEPARTMENT OF COMMUNITY AFFAIRS
NOTICE OF RIGHTS
EACH PARTY IS HEREBY ADVISED OF ITS RIGHT TO SEEK JUDICIAL REVIEW
OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND
FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110.
TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE
FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK
BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY
THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST
BE SUBSTA.NTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE
PROCEDURE 9.900(a). A COpy OF THE NOTICE OF APPEAL MUST BE FILED WITH
THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY
THE FILINCy FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES.
YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL
IS NOT TIM:EL Y FILED WITH THE AGENCY CLERK AND THE APPROPRIATE
DISTRICT COURT OF APPEAL.
MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH
RESPECT TO THE ISSUES RESOLVED BY THIS ORDER.
2
Final Order No. DCA09-0R-I06
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing has been filed with the
undersigned designated Agency Clerk, and that true and S;qqect copies have been furnished to the
persons listed below in the matter described, on this -Vf:aay of May, 2009.
r;p:u;:'~~
(J Agency Clerk
VIA U.S. MAIL:
The Honorable George Neugent
Mayor, Monroe County
25 Ship's Way
Big Pine Key, Florida 33043
Danny L. Kolhage
Clerk of the Board of County Commissioners
Monroe County
500 Whitehead Street
Key West, Florida 33040
James S. Mattson, Esq.
James S. Mattson, P .A.
P.O. Box 586
Key Largo, Florida 33037
VIA HAND DELIVERY:
Andrew M. Tobin, Esq.
Andrew M. Tobin, P.A.
P.O. Box 620
Tavernier, Florida 33070
Richard E. Shine, Esq.
Assistant General Counsel
Department of Community Affairs
2555 Shumard Oak Blvd.
Tallahassee, Florida 32399-2100
Susan M. Grimsley, Esq.
Assistant County Attorney
1111 12th Street, Suite 408
Key West, Florida 33040
3
DCA Final Order No.: DCA09-0R-I07
STATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
In re: MONROE COUNTY LAND
OEVELOPMENT REGULATIONS
ADOPTED BY MONROE COUNTY
ORDINANCE NO. 003-2009
/
ORDER APPROVING MONROE COUNTY ORDINANCE 003-2009.
AND VACATING DCA FINAL ORDER NO.: DCA08-0R-3S2
The Department of Community Affairs (the "Department") hereby issues its Order
Approving Monroe County Ordinance 003-2009 rescinding and repealing Ordinance 20-200S,
and Vacating DCA Final Order No.: DCAOS-OR-352.
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 October 17, 200S, the Department received for review Monroe County
(County) Ordinance No. 020-200S ("Ord. 020-200S"), adopted by the County on September 17,
200S.
3. On December 12, 200S, the Department issued DCA Final Order No.: DCA-OR-
352 rejecting County Ordinance No. 020-200S as inconsistent with ~ 380.0552(7), Fla. Stat., the
Principles for Guiding Development in an Area of Critical State Concern.
4. On February IS, 2009, the Monroe County Board of County Commissioners
adopted Ordinance No. 003-2009, rescinding and repealing in its entirety Ordinance No. 020-
200S concerning a land development regulation for the provision of central sanitary sewer and
other utilities to be provided to properties within the Coastal Barrier Resource System units
within the jurisdiction of Monroe County.
5. Ordinance No. 003-2009 states that the Board of County Commissioners is
following a process to consider and adopt a comprehensive plan amendment concernin the
DCA Final Order No.: DCA09-0R-I07
same subject area as Ordinance No. 020-2008.
CONCLUSIONS OF LAW
6. 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. (2008).
7. Monroe County is a local government within the Florida Keys Area of Critical
State Concern. ~ 380.0552, Fla. Stat. (2008) and Rule 28-29.002 (superseding Chapter 27F-8),
Fla. Admin. Code.
8. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development of land. ~ 380.031 (8), Fla. Stat. (2008). The
regulations rescinded by Ord. 003-2009 are land development regulations.
9. All land development regulations enacted, amended, or rescinded within an area
of critical state concern must be consistent with the Principles for Guiding Development (the
"Principles") as set forth in ~ 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.
10. Ord. 003-2008 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.
(b) To protect shoreline and marine resources, including
mangroves, coral reef formations, seagrass beds, wetlands, fish
and wildlife, and their habitat.
(h) To protect the value, efficiency, cost-effectiveness, and
amortized life of existing and proposed major public
investments, including:
1. The Florida Keys Aqueduct and water supply facilities;
2. Sewage collection and disposal facilities;
3. Solid waste collection and disposal facilities;
4. Key West Naval Air Station and other military
2
DCA Final Order No.: DCA09-0R-I07
facilities;
5. . Transportation facilities;
6. Federal parks, wildlife refuges, and marine sanctuaries;
7. State parks, recreation facilities, aquatic preserves, and
other publicly owned properties;
8. City electric service and the Florida Keys Electric Co-
op; and
9. Other utilities, as appropriate.
11. Ord. 003-2009 is consistent with the Principles for Guiding Development as a
whole.
WHEREFORE, IT IS ORDERED that Ord. 003-2009 is found to be consistent with the
Principles for Guiding Development of the Florida Keys Area of Critical State Concern, and is
hereby APPROVED, and ORDERED that DCA Final Order No.: DCA08-0R-352 is vacated.
This Order becomes effective 21 days after publication in the Florida Administrative
Weekly unless a petition is filed as described below.
DONE AND ORDERED in Tallahassee, Florida.
6J...vLLl ~
CHARLES GAUTHIER, AICP
Director, Division of Community Planning
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING 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
ADMINISTRA TIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
3
,
DCA Final Order No.: DCA09-0R-I07
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 REPRESENT A TIVE, 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 LA W 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.
4
DCA Final Order No.: DCA09-0R-I07
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.~ect copies have been furnished
to the persons listed below by the method indicated this 12- 'Oay of April, 2009.
~Ula Ford, Age
Bv U.S. Mail:
Honorable George Nugent
Mayor of Monroe County
25 Ship's Way
Big Pine Key, Florida 33043
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 Interagency Mail:
Craig Diamond, Bureau of State Planning, DCA Tallahassee
Rebecca Jetton, ACSC Administrator, DCA Tallahassee
Richard E. Shine, Assistant General Counsel, DCA Tallahassee
5
A '
ORDINANCE 003 -2009
AN ORDINANCE BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS REPEALING AND RESCINDING
ORDINANCE No. 20-2008 CONCERNING THE PROVISION OF
CENTRAL SANITARY SEWER AND OTHER UTILITIES TO
COASTAL BARRIER RESOURCE UNITS; PROVIDING FOR
SEVERABILITY; PROVIDING FOR REPEAL OF INCONSISTENT
PROVISIONS; PROVIDING FOR TRANSMITTAL TO THE
DEPARTMENT OF COMMUNITY AFFAIRS AND THE
SECRETARY OF STATE; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS,Monroe County is in an area designated as an area of critical state concern;and
WHEREAS, the Monroe County Board of County Commissioners passed a land development Ordinance
20-2008 on September 17, 2008 concerning the provision of central sewer service and other utilities to be
provided to properties within the Coastal Barrier Resource System (CBRS) units within the jurisdiction of
Monroe County;and
WHEREAS, the County's current comprehensive plan discourages the provision of utilities within CBRS
units;and
WHEREAS, the Department of Community Affairs (DCA)provided its intent to find Ordinance No. 020-
2008 not in compliance and inconsistent with the County's 2010 Comprehensive Plan and the principles for
guiding development as set forth in Chapter 380 of the Florida Statutes in Final Order No. 08-OR-352,
stating also that there was not enough data and analysis,and that the ordinance was not specific enough in it
•
s application to certain CBRS units;and
WHEREAS,a member of the public has appealed the DCA's Final Order; and
WHEREAS, land development regulations are not effective in an area of critical state concern until the
DCA provides notification that the ordinance is consistent with the County's comprehensive plan and the
principles for guiding development;and
WHEREAS, the Board is following the process to adopt a Comprehensive Plan amendment concerning
this same subject at the second transmittal for the year 2009;and
WHEREAS, the language of the land development regulation may not accurately reflect what is included
in the Comprehensive Plan amendment; and
WHEREAS, the Planning Commission considered this matter at a public hearing on February 11, 2009;
and
WHEREAS, the Board of County Commissioners has considered the comments from the DCA, staff, the
Planning Commission,and the public; and
WHEREAS, based on the findings of the DCA and advice of the County Attorney, and considering the
input from staff and recommendation of the Planning Commission, the Board has found that it is in the best
interest of the public not to pursue the appeal of the final order and directed staff not to appeal the order, but
to rescind Ordinance 20-2008;
iai a r s-A-,
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
Section .1. Reoealer.
Ordinance No. 20-2008 is hereby rescinded and repealed in i~s entirety.
Section 2. SeverabiUtv.
If any section, paragraph, subdivision, clause, sentence or provision of this ordinance shall be adjudged by
any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate, or
nullify the remainder of this ordinance, but the effect thereof shall be confined to the section, paragraph,
subdivision, clause, sentence, or provision immediately involved in the controversy in which such judgment
or decree shall be rendered.
Section J. Conmetln2 Provisions.
In the case of direcf conflict between any provision of this ordinance and a portion or provision of any
appropriate federal, state, or County law, rule code or regulation, the more restrictive shall apply.
Section 4. Transmittal.
This ordinance shaH be transmitted by the Planning and Environmental Resources Department to the
Florida Department of Community Affairs to detennine the consistency of this ordinance with the Florida
Statutes and as required by F.S. 380.05(6) and (11).
Section 5. Filfn2.
This ordinance shall be filed in the Office of the Secretary of the State of Florida but shaJl not become
effective until a notice is issued by the Department of Community Affairs or Administration Commission
approving the ordinance.
Section 6. Effective Date.
This ordinaQce shall become effective as provided by law and stated above.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular
meeting held on the 18th of February 2009.
Mayor George Neugent
Mayor Pro Tern Sylvia Murphy
Commissioner Kim Wigington
,Commissioner Heather Carruthers
-C-~ssioner Mario Oi Gennaro
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