InfoNotebookTiersTIER DESI TION
GNA
Information Notebook
BOARD OF COUNTY
COMMISSIONERS
MEETING
MARATHON GOVERNMENT CENTER
MARCH 22,2011
MZM UM
MONROE COUNTY GROWTH MANAGEMENT DMSION
We sbzve to be carte& psofessional mtdfair
To: Ada w Murphy and Comm lssloners
Roman Gastesi, County Aft hftVator
From: 0vistine Hurley, AiCP
Direct Of Growth Manapment Division CfV
Date: December 11 q 2009
RX: Status of Tier System — Designation of'"Tler-Legs gels
As YOU know, In 2005-2, Monroe County designated parcels Into Tiers to assist with afiacati its
appropriate arm m an environmental and planning e. General � to
• Tim i -- Envinvraneak* sense land
• Tier it — Transfflon or SprmW Reduction Area on Ift Pine or No Na Key
Tier III — Irfill Ajw (not nearly as environmentally sensItIre (50% or more developed Jets), platted subdivisions
with adequate Infrastructure)
• Tier ILIA — Special on Areas — (no iIIA's on Big Pine or No Name Key) Intent Is for the areas that do not
tit Into Tier I or Tier Iii to be placed in IIIA (e.g. the environmentally sensitive areas were split by roads, were
invaded with exotic plants or try, or included some typos of vesting
After adoption of the Tier Maps and ordinwices, a legal challenge was flied tD the ordinance which resulted in an order
from an administraWe law judge (AU) that recommemW striking certain portions of the tier Marla ordinance which
was used to parcels In the Tier System DCA Ssmftry Pelham adoPtOd the ALXs remmmOrlded order In his
Amended Final Order. This ruling Invalidated approArnatety 3100 +1- p 18 t1w designations. As of December
2009 the following table represents the total number of ant parcels wfthin Monroe County that are In the Tier
System;
Number of Vacant Parcels Tier Designa -
2138 Tier i
441 Tier 11
3411 Tier III
270 Tie III A
3124 invalldated Parcels - U ndes Hated b y Final Order
Grand Total Number of Vacant #?arcels In Tier Svs
With the civmplex permft system in the County, this de-designation of these parcels, along with several other
groupings of parcels where property owners petitioned llhorioe County for amendments to their Tier lies
caused large groupings of parcelsliand to be "Tler4ess" with no ability ' to score them In RCDD or NRCG lion have
C.
Monroe County=s W o rk Program, If amended as suggested In proposed Rule 28.20.140(3Xb), requires that these Tk
less parcels be re- evaluated and pvcessed Into Tier cateWes, based upon re=rnendathns made b a Tier
Deslgnatio�n Preview Comrnfttee (TDRC). The Board of County Commissioners " u l#mately be asked to apt
y
amendments to the Tier Maps.
The Growth Management Division Is preparing for the first TDRC meeting which Is e to occur In January, 2010.
There am several categorles of parcels that should be evaluated or should maintain their current tier. I wanted to
summarize these for you 10 Jhfk MgMt GenoW jaM so If you are coed by constituents you wi know the current
status and the procedure for amending these parcels.
As mays, our staff remains avallable to assist properly owners in this cornplicated waluation.
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K7
J
STATE OF FLORIDA
DI*�rSIGN OF ADMINISTRATIVE HEARINGS
FLORIDA KEYS CITIZENS
COALITION INC.
and PROTECT 3
KEY WEST AND THE FLORIDA KEYS,
INC. ► d /b /a LAST T STAND , �
Petitioners, �
VS.
3
DEPARTMENT OF
COMMUNITY
3
AFFAIRS and MONROE COUNTY,
3
Respondents.
Case No. 06 -244 9GM
RECOMMENDED ORDER
- M
G.
Pursuant to notice, this matter wa heard before the
Division of Administrative He arings by its assigned
Administrative Law Judge Donald
R. Alexander on February 6-9
2007, in Miami, Florida, and on
Ma rch 14 and 1 S ► 2007 i n
Tallahassee, Florida.
APPEA RANCES
For Petitioners: Richard J. Gros
so, Esquire
Jennifer R. Tubyr Esquire
Everglades Law Center► Inc
Nova Southeastern Universit
3305 College Avenue
ue
Fort Lauderdale, Florida 33314 -
Robert N. Hartsell, Esquire
Jason A. Totoiu Esquire
Everglades Law Center Inc.
818 U.S, Highway I, Suite 8
North Palm Beach Florida 33408-3831
383.E
EXHIBIT
For Respondent: Richard E. Shine, Esquire
(Department) Department of Cammuni t Affairs
'
Y �.rs
2555 Shum
and Oak Boulevard
Tallahassee, Florida 32399 -2100
For Respondent: Robert B. Shillin
(County) Chief gerl Jr . , Esquire
�ef As County Att orney
Post Office Box 1 026
Key west, Florida 330411026
David L, Jordan, Esquire
Greenberg Traurig, P.A.
Post Office Box 1838
Tallahassee, Florida 32302-1838
ISSUE
The issue is whether the land development regulations
(LDRs ) adopted by Respondent. Monro county (County), by
Ordinance Nos, 048- -2406. 449 ~2406
■ 010.2006, 011 - -2006, and 033-
2006, and which were approved wi
{ th one minor exception� b fiv
Y e
Final Orders issued by Resp t
p Department of community
Affairs (Department) on June 5 2006
• r are consistent with
Section 380.0552(7), Florida Statutes (2006)
BACKGROUND
This matter began on June 16, 2406
• wh en the Department
published notice of five Final Order determining Orders determining that Ordinance
Nos. 008 -2006 049 ~2446, 010 -2046
011 -2006, and 433 -2006
adopted by the county in March 2006 we re, with one minor
exception (which rejected the County's s proposa3 to delete
Section 9-5-243 from its LDRs ) consistent
• with the requirements
of Chapter 384, Florida Statutes ■ and were therefore approved,
2
On July 7, 2006, Petitioners, Florida Revs citizens
Coalition, Inc. and Protect
Key Nest and the Florida Keys, Y Inc.,
d/b/a Last Stand, filed their Petition for Formal Administrative
Proceedings with the Department challenging lenging the determinat�.on as
to the consistency of the LDRs. The
matter was referred to th
Division of Administrative Hearings on July 13, 2406 with a
request that an administrative law judge � g be assigned to conduct
a hearing. On September 18, 2406
pet1t'
loners were author1zed
to file an Amended Petition for Form '
Formal A�inlstrative
Proceedings Amended Petition) , 2
Just prior to the final
hearing Petitioners withdrew the
e allegations raised in
paragraphs 2 6 tb3 , 2 6 (c) , and 27(d) of the '
it Amended Petition.
Because the parties could not agree g on the appropriate
venue for this case, the undersigned determined ete rm3ned that fade County
Y
would be the most convenient location for all parties. BY
Notice of Hearing dated July 26 2Q
f 06, the matter was scheduled
for final hearing on September 11 .
I5, 2a06f � In Miami, Florida.
At the request of the parties, the
matter was continued to
September 28 and 29 and October 2
and 3, 2046, at the same
location. The parties then requested q ested a continuance while
efforts to settle the matter ensue
d. When settlement
negotiations we unsuccessful th
� case was rescheduled to
February 6 -9. 2007, in Miamir Florida. A continued hearin g was
held in Tallahassee, Florida on March 19 and 15, 2007.
3
At the final hearing, Petitioners re
p rented the deposition
testimony of AlesSandra "Alex" Score a
marine specialist and
accepted as an expert; Curtis R. truer, a
. biologist and accepted
as an expert; and Deborah Sue Harrison, a certified fled land use
planner with the World wildlife Fund
and accepted as an expert.
Also, they offered Petitioners' Exhibits 1--73, which were
received in evidence. The Count resent
Y presented the testimony of
K. Marlene Conaway, former Monroe County
ty Planning Director and
accepted as an expert; Andrew 0. Trivette
. Acting Director of
the Monroe County Growth Management Division g i zsion and accepted as an
expert; Kimberly Rohrs, a Senior CIS Planner
and accepted as an
expert; and Dr. Ricardo N, Calvo, a biology and nd environmental
consultant and accepted as an expert. Th
a Department
presented
the testimony of Rebecca Jetton a former State Planning
Supervisor for Areas of State Critical
Concern and accepted as
an expert. The Department and the Count jointly Y 7 tly offered
Respondents' Exhibits 1-44, which were •
received in evidence.
(It should be noted that many of these .
exhibits duplicate one
another. 3)
The Transcript of hearing 410 volumes r .
} gas .filed on
April 9 2007• By agreement of the ar '
p ties. the time for filing
proposed findings of fact and conclusions
of .haw was extended to
May 14, 2007. Timely filings were made by Petitioners and
i
4
Respondents, and they been considered in the '
preparat.�on of this
Recommended Order.
FINDINGS of FACT
Based on the evidence presented by the arti
p e s, the
following findings of fact are made:
A. Parties
I. The County is a non count a •
Y and a political
subdivision of the State. Because the County
ty is located, within
the Florida Keys Area, which is a statutorily
iy designated Area of
Critical State Concern, all LDRs adopted p by the County must be
approved by the Department. §§ 380,05(6) and 380-0552(9) Fla.
S tat . The LDRs are codified in the Monroe '
County Code,
Z. The Department is the state
to land planning agency with
the power and duty to exercise general supervision
of the
administration and enforcement of the Area o '
f Critical State
Concern program and to approve or reject LDRs DRs adopted by local
governments within an Area of Critical State Concer
3. Petitioner, Florida Keys Citizens Coa lit i on, a�.ltlpnr II'tC . , 1S a
not- for -- profit Florida corporation whose address is 10800
Overseas Highway, Marathon, Florida. Th •
part�.es have
stipulated that there are sufficient facts s to establish tha t the
substantial interests of FCC could be adversely affected by the
LDRs being challenged and thus FLCC has standing to initiate
this action.
6
4. Petitioner Protect Key st
I� and the Florida Keys
Inc., dlb/a Last Stand, is a n �
of - for-- profit Florida corporation
whose address is Post office Box 146, 6. Key West, Florida. The
parties have stipulated that there exists xlsts a sufficient factual
basis to demonstrate that its sub •
stantial interests may be
affected by this proceeding and t `
thus it also has standing to
bring this action.
B. Background
5. This case involves a challenge .
g to five Final Orders
(DCA06-- OR-123, DCA06 OR -124. DGA06- .�
CR 125, DCA06 -C]R. -126 j and
DCA OR - 127) entered by the Department p on June 6, 2006, und th
authority of Sections 380 -05(6) and 3
80 . X552 ( 9) , Florida
_ Statutes. Those orders approved, � .
. with one minor exception five
County Ordinances ordinance Nos. 008-2006, 009-2006, 0I0--2006
011- -2006, and 013 -2006) . whack adopted LDRs implementing a so.
called "Tier System" in order to meet natural habitat protection
requirements In essence, the LDRs 1
p ace all undeveloped
parcels of land in the unincorporated County into one of th
categories, and then adopt development p standards applicable to
each category. Petitioners have challenged ninety of the tier
maps which contain the tier designations g ns of multiple parcel in
those maps) and many of the related development standards. 1n
addition, the Ordinances allow the issuance of certain
residential allocations for building
g permits �.n excess of
6
ilk
previously established annual caps, far
p up to five years into
the future for affordable units,
6. The Keys were originals designated Y g ated an Area of Critical
State Concern by the Administration Co .
Commission �n 1975 and re--
designated by the Legislature in 1986. Sew § 3$0.0552, Fla.
Stat. The Legislative Intent section and the Principle for
Guiding Development codif1ed in Section 380. QS52 {g} . Florid
Statutes, together require an effective land use management
system that protects the natural environment and character of
the Keys, maintains acceptable water
quality conditians, ensures
adequate public facility capacity nd •
Y services, provides
adequate affordable housing, supports pp s a sound economic base
i
protects constitutional property rig hts, and d requzres adequate
emergency and post- disaster planning o ensure sure public safety.
7• Approximately sixty to seventy percent of the land in
the Florida Keys is owned by the ub .
public, ic. f i f teen percent is
already developed, and only fifteen fteen
Y to twenty percent is
privately owned and not developed. •
p If the mainland portion of
the County {which includes a ortio
p n of the Everglades National
Park} is exc.Iuded, over ninety-nin Y e percent of land is in public
ownership.
$_ The Florida Keys are a long
g arc of Islands extending
more than one hundred mites from just north of Key Largo to Key
Wes t. Excluding the City of Key West, the ma portion of
i
the Keys is approximately 80,000
to 1 Q 0, 0 40 acres. The Keys
differ in sire, type of plant communities, and geological
characteristics and are generally divided ivided into the upper.
Middle. and Lower Keys. A Count staff report describes the
Capper Keys as extending from Mile Marker 91 ( Tavernier Creek
Bridge) northward to Mile Marker 112 •
excluding the Crean beef
subdivision; the Middle Keys as t h e
unincorporated area
stretching from Mile Marker 60 Duc Key) through Mile Marker 71
{Long Key }; and the Lower Keys as including y nciuding alI of the islands
from Mile Marker 4 (Stack Island t .
� o Mile Marker 40 (Little buck
Key), excluding Big Pine and No dame K eys. See_ Respondents
Exhibit 9. pages 11-16. Most of the .
parcels in dispute here are
in the Upper Keys.
9. The Upper and Middle Key are the he product of an old
coral reef formation, while the Lower Keys consist of solidified
limestone sand. The coral ree formation x'mat�.on extends like a spi
much of its way down the Keys. At t '
he higher elevations in the
U pper and Middle Keys (which approach '
pp five to ten feet above sea
level) are uplands, consisting f tropical roplcaZ hardwood hammocks.
As the elevation drops, different habitat bitat occur, including
transitiortal wetlands, salt marshes
mangroves, and eventually
shallow water seagrass beds. Sur .
� prisingZy. the highest
elevation in the Keys is Solares Hi ll �
i ll In Key Test, which is
eighteen feet above sea level.
8
10. Upland plant communities in the K '
Keys include a var1et
of hardwood trees including gumbo-limbo,
� g rho, mahoganY� mastic,
dogwood and tararind, and specialized
shrubs, vines, and ground
cover. Tall or high hammocks occur on the connected islands,
mostly in the Upper Keys, and on offshore
- mangrove-fringed
islands that provide habitat to a wide .
range Of wildlife and
maintain water quality and other functions. Shorter, denser low
hammocks are found in the Lower Ke s,
Y Regardless of size,
though, hammocks in one part of the Key
ys are important to
hammocks in other parts of the Keys due ue to the seed dispersal
role played by neo- tropical birds, which '
migrate every year from
North America through the Key and into
the Caribbean and
Central and South Americ
1I. The Keys host a vast array f un'
Y ague endemic animal
and plant communities, over one hundred
of which are listed by
the federal and state governments as
endangered, threatened or
of special concern. Among these are the Florida e Flori Key deer, marsh
rabbit, silver rice rat. Key Largo woo
drat, drat, and Key largo cotton
mouse, In addition, the American crocodile inhabits the Keys
and the tree snail is now confined to ju ten or twelve small
hammocks. Also, the white Crowned
pigeon i's a migratory bird
that uses the Keys in the summertime
e as a migratory stopping
point and is listed as a species "of ��
concern by the State.
L'
9
44%
C. The Current _ Reg ulations
12. The current version of the LDRs inclu .
odes a
Rate of Growth Ordinance (ROGO) found in Sections 9,5-120
through 9.5 --123, a non - residential Rate of G rowth Ordinance
(NROGO) in Section 9.5-124, and environmental standards which
focus on a Habitat Evaluation Index (HEI '
� codified in Sections
9.5-335 through 9.5-349.
23. A building permit f a residential dwelling
ell�n unit
cannot be issued unless the dwelling unit has received a Roca
allocation. § 9.5-120.1. A building permit •
g p t far non-residential
floor area cannot be issued without an NROGO allocation. § 9.5--
124.1 (a) . The ROGO and NROGO allocations are issued based upon
a competitive point system, with the app licants who '
1� o receive the
most points receiving the limited number of annual a permit
allocations. 9.5-122(a), 9.5 -122. 9.
. 5-124.4. and 9.5-
124.6.
14. The ROGO point system consists of eighteen evaluation
criteria, which assign positive points for factors such as
infrastructure availability, lot aggreg •
density reduction
land dedication, affordable housing, nd water ate, and. energy
conservation. They also assign negative oints for or factors such
as the presence of significant or critical habitat, threatened or
endangered species, and coastal high hazard
g area. § 9.5-122.3.
For example, ten negative paints are assigned g ed far federal coastal
10
ACCERML
barrier resource system sands due to the environmental
ental importance
of coastal resources, while all offshore islands •
and conservation
land protection areas receive ten negative oin
p ts. NROGo
utilizes a similar point system with thirteen evaluation
cation
criteria. § 9.5- 124.8.
15, The habitat protection criterion of ROGO and NRGGO is
based upon the type and quality of habitat on the parcel proposed
for development. §§ 9.5- -122.3 ( (7 ) and 9.5-124.8 8 (a) (9 ) If
. a
development permit is sought for land classified .
on the existing
conditions map as slash pineland or tropical hardwood ood hammock,
the habitat must be analyzed under the HEI system. -
. Y �� 9.S 336
through 339.1. (The existing conditions ma is
p a map reflect
the "conditions legally
in existence on February i
y � 8 . 19 $ G and
consists of 1985 Florida Department of Transp ortation '
p ion aerial
photographs at a scale of one inch equal two hu ndred ndred feet
depicting habitat types coded according to the
g system set forth
in the Comprehensive Plan (Plan) . It is intended to serve only
as a general guide to habitat types "for the ur ose of
p P
preliminary determination, of regulator requirements,"
y § 9.5-
336.) The HEI consists of are elaborate o int
p system covering
nineteen pages in the LDRs and requires a site '
e visit to each
parcel by a qualified biologist. §§ 9.5 -339.1 through 9.5 -343.
16. Through experience and the passage of ti
9 me. the County
and Department have become aware of deficiencies
s in the RoGO --
NRCGO--HEI point systems. The existing conditions g ndit�.ons snap is based on
more than 20 data, and some areas that
t d�.d not have
valuable habitat at that time have regrown '
g into valuable hammock,
The HEI criteria are complicated and difficult t to apply
consistently. The HEI evaluates the habitat
parcel -- by -- parcel and
allows scattered development within large g patches of habitat,
The HEI criteria are also subject to varied
d Interpretations by
individual biologists.
D. The W ork Prog and Carry Cap acity S tud y
17. The current Plan is a result of a series of plan
amendments made in order to bring the Plan into compliance with
Chapter 163, Florida Statutes. After a lengthy review and
hearing process that lasted a number of
years the Department
found the County's initial comprehensive
plan Out of compliance,
entered into a compliance agreement with the
County requiring a
complete rewrite based upon an overall carrying yang capacity
approach, and then found the rewritten Zan out
p of compliance.
Eventually, a Final Order requiring hat the he County adapt
additional remedial amendments was entered '
by the Administration
Commission in 19954, Sew .Department of Community mrnun�.t Affairs v,
Monroe County et al., DCAH Case No, 91 -193
2GM ( DOAH Jul 17 ,
1995, Admin . Comm. Dec 12, 1995), 1995
Fla, ENV LEIS 129.
1$. Under the authority of Section 380-0552(9), Flor
Statutes, the Administration Commission has promulgated parts of
-1 2
L
L
the County's plan through the •
g adoption of Florida Adminis
trative
Code Rule Chapter 28-2 One of those provisions is s the fork
Program in Policy 101.2.13. which
ch �.ncludes, among ethers tasks
regarding preservation of upland habitat abitat and affordable housin
These tasks are enumerated on
a year basis, beginning
wit Year fines which ended on
December 31. I997 and c antin
u� ng
through, Year Ten, which runs
from July 13 2006s throe h
g
July 12, 2007. The Annual work
Program is a central componen
p t
of the Plan's remedial amendme (required by the
Administration Commission in 19
95) and requires the Count
Y to
implement the Florida Keys Ca '
Y rrYI ng Capacity study (FKCCS with
appropriate Plan and LDR changes. T Purpose was to ensure
that the zoning map maintained
the carrying capacity of the
- keys
in perpetuity.
19. The FKCCS was completed p over a period of six ears
Y at
a cost of six mil.�ian dollars. The contractor URS Corporations
completed the FKCCS and the Carrying Yang Capacity /impact Assessment
Model (CCIAM) a separate compo p Went to be used in forecasting
land use scenarios.
20. A panel of external experts was used to Peer review
the
scope of work. The National Research Cauncil of the National
Academy of Sciences reviewed
the CCIAM and FKCCS and a
• s a result
Of fts reviews adjustments were made to the CC1AM. The Council
review concluded that overall, due to data constraints and
other
1
issues in certain portions of the CCIjkM the
model proved
insufficient to develop a comprehensive oar •
Tying capacity
framework that would allow for undisputable determinations
p of
whether future development scenarios fall within the carrying
capacity of the Florida Keys. The marine module
the most data
deficient, was subsequently removed from the
CCIAM. The study
was completed in September 2002.
21. The FKCCS ' chief findings were that:
a. Development in the Keys has surpassed
the capacity of the upland habitats to
withstand further development;
b. Any further encroachment into areas
dominated by native vegetation would
exacerbate habitat loss and fragmentation.
C . The lower Keys marsh rabbit and silver
rice rat are highly restricted and libel
could not withstand further habitat loss Y
without facing extinction,
d. Development in the Keys has surpassed
the capacity f upland p
Y p nd habitats to withstand
further development,
e. The secondary and indirect effects of
development further contribute to habitat
loss and fragmentation.
f, Any further development in the Key
secondary and indirect
would exacerbate Y
impacts to remaining habitat.
g. Virtually every native area in the Key
one or more
is potential habitat for Y
protected species,
k�
f
t
- IN
22. The FKCCS suggested four main .
gu�,del.ines far future
development in the Keys:
a. Prevent encroachment into native
habitat. A wealth of evidence shows
that
terrestrial habitats and species have been
severely affected by development and further
impacts would only
y exacerbate an already
untenable condition.
2. Continue and intensify existing
Many initiatives to programs.
Improve environmental
conditions and duality of life exist in the
Florida Keys. They include land acquisition
programs, the wastewater and stormwater
master plans, ongoing research and management
activities in the Florida �{ g tnent
Keys National
Marine Sanctuary, and restoration efforts
throughout the Florida Keys-,
3. If further development is to 0
on redevelopment and i occur, focus
nfil�, opportunities
for additional growth with small o
p tentially
acceptable. additional environmental impacts
may occur in areas ripe for o redevelopment
already disturbed. p r
4. Increase efforts to manage the
g resources .
Habitat management efforts in the Keys
increase to effectively could
y preserve and improve
the ecological values of remaining
terrestrial ecosystems.
23. The FKCCS also considered a fiscal analysis. The
fiscal module predicted that the r
p ograms needed to protect the
Keys would be very expensive with a '
disproportionate increase in
government expenditures compared to the increase in population.
The very high per capita costs of
the needed programs is one
factor to be considered as the County
ty Implements the FRCCS .
24. The FKCCS recogn1zes that develop p pursuant to the
then - existing comprehensive plan and LDRs is
already extremely
restricted. It also recognizes that additional '
growth with some
associated environmental impact would be acceptable '
p ble in areas that
are already disturbed or ripe for redevelopment.
25. In 2001, the County adopted Goal 105 of the Plan (also
known as the Smart Growth Goal) to rovide •
p a framework within
the 2010 Plan to implement the FKCCS and a 20-year land
acquisition program. The initial phase of implementing
this
Goal called for the drafting and adoption of "T' "
p "Tie maps to be
used as guidance for the County's land acquisition q on pragrarn. The
Goal contemplates that the Tier maps would designate and map
properties into one of three general categories: Co nservat i on
g onservat�on
and Natural Area (Tier I), Transition and Sprawl p l Reduct'
ion Area
(Tier II), and I of i l l Area (Tier III). Addi t i ona3, work tasks
contemplated in the implementation of Goal x.05 a
4 nd thus the
FKCCS) included amendment of the zoning a with g p a tier overlay
and supporting text amendments to the LDRs revising ising the permit
allocation system, developing a land ac uisit'
q ion strategy, a a
land maintenance program. These tasks are more specifically
identified in a series of policies adopted p at the same time to
assist in the implementation of Goal 105.
26. According to the Department, if the regulations at
issue here are found to be consistent with
Chapter 380, Florida
IN
Statutes, the requirements of the FKCSS will be satisfi and
there is no further requirement to make an further r changes to
the Plan or LDRs to implement the FKCSS.
27 . In 2004, the Administration Commission began g the
process for adopting a new rule, which later became effe ctive ' in
2005 as Florida Administrative Code Rule 2$ --20.1 4
3.0. to add the
following tasks to the existing Work Program in P olicy olicy 101.2.I3
of the Plan related to habitat protection:
In Year 8:
� Review and revise
(as necessary) the Conservation and
Natural Areas Map,
- Initiate acquisition strategy for lands Identified
outside the Conservation and Natural Areas Identified led
as worthy protection,
� Begin public hearings for Conservation and Natural
Areas boundaries.
Conclude public hearings for the adoption of th
amended Conservation and Natural Are Boundaries,
- Adopt an ordinance to implement a moratorium
ROGO /NROGO applications that n
es the clearing of
any port i on of an upland tropical hardwood hammoc
pine3ands habitat cont � or
ained in a tropical hardwood
hammock or pinelands patch of two or more acre
located within a Conservation and Natural Area s in size
,
Adopt amendments to the comprehensive lan an
regulations P d land
development re
g s to enact overlay designations,
and eliminate or revise the Habitat Evaluation
NRO Index,
and modify the ROGO
/ GO system to guide development
away from environmentally sensitive lands,
- Amend land development regulations to rohibit
p the
designation of Conservation ion and Natural Areas (Tier I )
as a receiver site for ROGO exempt development from
sender sites; and to fur p m
further Iimit clearing of upland
native habitat that may occur in the Natura Areas
(Tier I ) and the Transition and Sprawl Reduction ion Area
(Tier II) upon designation by the Count and
- Develop Land Ac uisi ' Y►
q tion and Management Master Plan
and address both funding and management strategies.
egxes.
O &A
Y T
amendments delete the requirements for the HEI, simplify ROGO
and NROGO, and adopt the Tier designation criteria. Relevant to
this proceeding are Goal 205, Objective 205,1, and Policy
205.1,1, which read as follows:
GOAL 205
The health and integrity of Monroe County's native
upland vegetation shall be protected and, where
possible, enhanced.
Obiective 205.1
Monroe County shall utilize the computerized
geographical information system (GIS) and the data,
analysis and mapping generated in the Florida Keys
Carrying Capacity Study (FKCCS), FMRI, habitat maps
and field evaluation to identify and snap areas of
upland vegetation in the Florida Keys and to prepare
Tier Overlay District Maps as required in Policy
105.2.2.
Policy 205.1.1
The County shall establish the following criteria at a
minimum to use when designating Tiers:
1. Land located outside of Big Pine Key and No Name
Frey shall be designated as Tier I based on the
following criteria:
■
Natural areas including old and new growth
upland native vegetated areas, above 4 acres in
area.
■ Vacant land which can be restored to connect
upland native habitat patches and reduce further
fragmentation of upland native habitat.
i Lands required to provide an undeveloped buffer,
up to 500 feet in depth, if indicated by
appropriate special species studies, between
natural areas and development to reduce
secondary impacts; canals or roadways, depending
18
28. In
2005, the
County
adopted the plan amendments
contemplated
by Year 3
of the
Work Program. These plan
amendments delete the requirements for the HEI, simplify ROGO
and NROGO, and adopt the Tier designation criteria. Relevant to
this proceeding are Goal 205, Objective 205,1, and Policy
205.1,1, which read as follows:
GOAL 205
The health and integrity of Monroe County's native
upland vegetation shall be protected and, where
possible, enhanced.
Obiective 205.1
Monroe County shall utilize the computerized
geographical information system (GIS) and the data,
analysis and mapping generated in the Florida Keys
Carrying Capacity Study (FKCCS), FMRI, habitat maps
and field evaluation to identify and snap areas of
upland vegetation in the Florida Keys and to prepare
Tier Overlay District Maps as required in Policy
105.2.2.
Policy 205.1.1
The County shall establish the following criteria at a
minimum to use when designating Tiers:
1. Land located outside of Big Pine Key and No Name
Frey shall be designated as Tier I based on the
following criteria:
■
Natural areas including old and new growth
upland native vegetated areas, above 4 acres in
area.
■ Vacant land which can be restored to connect
upland native habitat patches and reduce further
fragmentation of upland native habitat.
i Lands required to provide an undeveloped buffer,
up to 500 feet in depth, if indicated by
appropriate special species studies, between
natural areas and development to reduce
secondary impacts; canals or roadways, depending
18
LZI
on size may form a boundary that rem
need for the buffer or over the
reduces its depth.
' Lands designated for acquisition
by Public
agencies for
conservation and natural resource
Protection.
■ Known locations of threatened and
endangered
species.
' Lands designated as Conservation .
and Resident
Conservation on
the Future Land Use Map or
within a buffer /restoration area
Areas with minimal existing appropriate.
existing development and
infrastructure.
. Lands an B�.g Pine Key and No
Name Key designated
as Tier I. II, or III shall be in ac
the wildlife habitat accordance with
t quality Criteria as defined
in the Habitat Conservation Pla
islands. n for those
3. Lands located outside of Big
g Pine Key and No name
Key that are
not designated Tier I shall be
designated Tier III.
4. Designated Tier III lands located outside of gi
Pine Key and No Name K w i t h tro
irie�.and pical hardwood
hammock or
P s of one acre or greater in
area shall be designated as Special. Pr
Areas .
5. Lands within the Crean Reef
planned development
shall be excluded from any Tier designation.
s�.gnation.
These plan amendments were found '
in compliance by the
Department, were not challenged, and d are wart of the presently
effective Plan.
29. Year 8 of the Work Prog g also required that th
County amend its LDRs to i P the Tier system. The LDRs
being challenged here are intended to meet that requirement.
I�
a-J'
E. The Challen ed Ordinances
30. After a series of eight public hearing g that took
place between December 2004 and March 2406 the
County adopted
four ordinances on March 15, 2006, and a f if th '
Ordinance on
March 21, 2006. Those Ordinances amended the LDR
s .
31. More specifically, on Ma 15, 2006 th
• e County
adopted ordinance No. 005 -2006, which deleted requirements quirements for
the preparation of the HEI for properties containing hammock,
requires an existing conditions report, vegetation �} survey, and
grants of conservation easements, and limits clearing g' of native
upland vegetation dependent on the tier system designation. Y signatian. It
also proposed to delete Section 9.5 --342, which establishes when
a hammock is classified as a Palm Hammock. In a Fi nal Order
dated June 5, 2006, the Department determined that
at with the
exception of the proposed deletion of Section 9.5-
342, the
Ordinance was consistent with the Princip for '
p Guiding
Development as a whole, and was therefore ap proved. pp ed. The County
has not challenged that portion of the Final
Order which
disapproved the deletion of Section 9.5 --342.
32. On March 15, 2006, the Count also adopted pted Qrdinance
Igo. 009 -2006, which implements Coal 105 of .
the Plan by utilizing
tier overlay maps as a basis for the Count ' . 0
County's ca�npetI i.ve point
system; providing revised criteria for the building permit
allocation system; allowing the transfer of development exempt
0
from the Residential ROGO provided the receiver site is located
in Tier 3, is not in a velocity zone, and require q s na clearing;
and creating an appeal process. On June 5 2006, . the Department
issued a Final Order finding that the Ordinance was consistent
with the Principles for Guiding Development and was as therefore
approved.
33. On March, 15, 2006, the County adopted Ordinance Hance No .
010 - -2006, which implemented Goal 105 of the Plan •
by providing
criteria for the designation of the tier boundaries, excluding
Ocean Reef, a vested subdivision; prioritizes land for public
acquisition; and contains a mechanism for ro ert
P p y owners to
obtain due process by requesting an amendment base .
d on specific
.
criteria. By Final Order dated June 5, 2006 the
• Department
determined that the ordinance was consistent with •
th.e P
for Guiding Development was therefore approved.
34. On March 15, 2006, the County adopted Ordinance Hance Na.
011 - -2006, which implemented Goal 105 of the Plan
by revising the
NROGO in the unincorporated part of the Count between een Key west
and Ocean Reef, and designating the boundaries of
Tiers I, I I �
and III and Tier III Special Protection Areas (SPA) � A) • By a Fina
Order dated June 5. 2006, the Department determined that the
Ordinance should be approved.
35. Finally, on M arch 21, 2006, the Count adopted
opted
Ordinance No. 013-2006, which implemented Goal 105 of the Plan
21
J
by utilizing the tier overlay maps for '
p all .and in
unincorporated Monroe County between Key west and ocean Reef.
and designating the tier boundaries of Tiers I. II and III and
Tier III SPAS. By a Final Order dated
June 5, 2 D D 6, the
Department approved the Ordinance.
36. 4n July 7, 2006, Petitioners filed
their initial
Petition for Formal Administrative Proceedings dings challenging each
of the Final Orders. On September 7 2DD6 .
Petitioners filed an
Amended Petition which made minor changes •
g to their original
Petition. The substantive allegations at
g issue here are found
in paragraphs 26 through 31 and challenge each of
g the ordinances
in various respects as well as the designations g .
1Ven to a large
number of parcels of land on ninety heets
y of the Tier Overlay
Maps. Just prior to hearing, Petitioners
voluntarily dismissed
paragraphs 26(b), 26(c), and 27(d) of the Amended Petition and
therefore those allegations need not be addressed,
37. The LDRs at issue delete the HEI
system, adopt the
Tier System, and simplify the ROGO and N
ROGO point systems. The
HEI system called for lot -by -lot evaluations, which failed to
take into account secondary
impacts of
p development and resulted
in lass of valuable habitat. The Tier
system consists of maps
which designate all areas outside of mainland ainland Monroe County
(except ocean Reef, Big Pine Key nd No Name ame Keys as either Tier
I. SPA, or Tier 111. The Tier designations g tlons now constitute the
2
L
only habitat suitability determination replacing placing all HE1 and
other habitat qualitative analysis,
38. Under the new simplified ROGO pint
P system the major
points are based on the Tier designation. '
g An application for
development of a parcel in Tier I receives '
1 0 points, in a SPA
receives 20 points, and in Tier III receives '
34 points. The
simplified NROOO has a similar point spread. '
P These points
are intended to discourage development in
environmentally sensitive areas and to direct
ment in and
encourage development appropriate infill areas,
while recognizing that any development has
P an impact
on the carrying capacity of the Florida Keys.
§ 9 .5 - 122.4(a). Similar language regarding g g the NROGo point
system is found in Section 9.5 -124.7 (a) (1)
39, Tier I is assigned to parcel which are not suitable
for development and are suitable for acquisition '
to protect
native upland habitat. Tier III '
is ass Heil
g to parcels which
are suitable for development. The SPA designation g ion is assigned
to parcels in Tier III which are part of areas
of tropical
hardwood hammock or pinelands of reater
g than one acre , Because
of the point differential between Tier i SPA, and Tier III,
development will be guided towards areas
suitable for
development.
40. The simplified ROOQ system also awards
arils points for lot
aggregation (where the owner of multiple lots re
p serves all
except the lot to be developed ), land dedicatio
n, affordable
W
implement. The Tier system will not rotec
p t every piece of
valuable habitat but does preserve ninety-nine Y ne percent of the
habitat value. The T1er system (with the
changes recommended
below) takes simple steps to make reat '
g gains in the
preservation of habitat and thus implements the recommendations
of the FKCCS,
24
housing flood hazard area, service b central al wastewater
system payment to the land acquisition fund and perseverance
Points. However, the major points are awarded based upon the
Tier designation. The paints awarded b the e new LDRs are
consistent with the point system already adopted y p in the Plan.
See Po licy 101.5.4., which requires the Count "
County to implement the
residential Permit Allocation and Point System y m through its
[LDRs] based primarily on the Tier system of
y land
classifications as set forth under Goal 105.
41. Under both the old and the new RCGC/NRCG •
� systems, t E?'T�'t3 � 1 t
is possible that an applicant will never receive enough paints
. -
to get an allocation since a IOW-scoring application '
g always
competes against all other applications for the limited number
of allocations. The points for dedication of land encourage
applicants to donate environmentally ensitive
� land to the
County and assist the County to avoid inverse condemnation
claims.
42. The Tier system is easy to understand and easy to
implement. The Tier system will not rotec
p t every piece of
valuable habitat but does preserve ninety-nine Y ne percent of the
habitat value. The T1er system (with the
changes recommended
below) takes simple steps to make reat '
g gains in the
preservation of habitat and thus implements the recommendations
of the FKCCS,
24
Ilk
`. Petitioners' Ohallen e
a. Prioritization Within Tiers
43. As noted above, all parcels designated T' •
g T i e r I receive
10 points, and all parcels designated SPA receive
elve �� points,
Paragraph 2 7 f of the Amended Petition alleges •
g that these Tier
points "fail to prioritize the protection o f r •
p otected species
based upon their status or habitat based upon •
P its quality within
each Tier." Paragraph 27a of the Amended Petit tion also alleges
that the Tier points "fail to assign negative g g points for
endangered species and habitat quality o direct t development in
Tier 1 away from the most important natural are
44. Petitioners are correct that the Tier system avol' ds
the fine gradations that they describe. The
County has
deliberately avoided a complex point system i
y n favor of
protection for all important upland habitat. The Ti Ar Qx i�+ -,mm
avoids individual site assessments and designates g es the Tiers with
a meaningful spread of points to target development P t to Tier III
instead of environmentally sensitive land. .
The Tier point
awards adopted in the challenged LDRs are consistent t with the
standards of the Plan. See Pa.l icy 101.5.4.
b. Adjacent Pro'ects
45. Paragraph 27h of the Amended Petition
alleges that
Ordinance 049 -2006, which includes the ROGO '
point allocations,
W
L
allows the granting of 30 ROGO points to
Projects adjacent to native vegetation in
Tier I or an SPA, as long as there is no
clearing. This is arbitrary as it allows
the type of indirect impact which the
Carrying Capacity Study determined should no
longer be allowed.
46, Recommendation 3 of the FKCCs focuses on redevelopment
and infili and recognizes that there may be some '
y e minor impacts
that will be acceptable in these areas. Where
e existing
development is already causing secondary impacts, y p cts, the line
between Tier I and Tier III could have been
drawn further into
the natural area, because the edge has already been impacted.
The Tier system conservatively includes the undeveloped areas
already suffering from secondary impacts in
P Tier I.
C. Parcel Boundaries
47• One of the new Tier designation criteria
a 1 s found in
Section 9.5-256(b) (in Ordinance No. 010-2006) and reads as
follows:
(b) Tier boundaries; Tier boundaries shall
property lines
follow pro
P y nes whenever possible,
except where a parcel line or distinct
geographical feature, such as a canal or
roadway, may be more appropriate.
48. Paragraphs 28a and 2$b of the Amended
d Petition allege
that Section 9.5-256(b) is "arbitrary" and
y that
given the underlying science concerning
need to protect all remaining the
0
p natural areas,
it is arbitrary and capricious for the LDR
to fail to require the designation in the
most protective T1er for lands that meet or
6
6 ;IJ
Potentially meet criteria for more than one
Tier.
49. The parcel -based information from the local Property
Appraiser is commonly utilized as a base layer Y of the
geographical information system (GIS) data. One
goal of the
Tier system is to render the permit allocation system
transparent to the citizens. Assigning wo Tier •
g designations to
the same parcel would create confusion since the Tier system is
designed to allocate development to p arcels.
50. For those parcels which include developed
ped or scarified
(lacking vegetation) areas and habitat suitable for Tier I
designation, the County properly took into account the context
of the parcel and whether the LDR development p standards would
allow further encroachment into the habitat.
51. The Property Appraisers data layer assigns gns a parcel
number to all land that is known to be owned. Some areas of the
County that appear to be land can aerial hoto
p graphs are not
owned by taxpayers and have not been assigned a a
g parcel number.
Since the adopted Tier Maps are based on the
Property
Appraiser's data layer, those areas that were •
not assigned
parcel numbers by the Property Appraiser did not .
receive a Tier
designations
52. If an error is discovered in the Property Appraiser's
data layer and an owner of an undesz nated
g piece of land seeks a
r
7
development permit, the permit cannot be issued until the error
is corrected. The Lt?Rs apply to
pp � all land in the County, and no
development can be undertaken without a development
opment perm, t .
§ 9.5 -2 (a) . As noted above, a development e
p permit cannot be
issued without a ROGO or NROGO allocation o •
r an exemption.
§§ 9.5-- 120.1(a), 9.5- 120.2, 9.5- -124.1 and 9 .5 - 124.2(a). ► Alw
a ROGO or NROGO allocation cannot be awarded without an
evaluation of the number of points assigned to .
g an application,
and points cannot be assigned without a Tier designation .
lgnation far the
parcel. §§ 9.5-122.4 and 9.5-124-7.
53. The following land areas challenged b Petit'
etit•
ioners
were appropriately not assigned, a Tier designation because the
land areas are not presently recognized as a
p rcels on the
Property Appraiser's data lager:
183 (outside parcel lines);
109 (outside parcel lines) ;
110;
116A and 116;
117A (outside rectangular pa
117;
118 and 119 ( near U.S. Hi ghwa y 1) ;
128 and 121;
K14 6e;
154, 155, and 156;
587;
K546; and
568.
d. Tier I: Wetlands
54. Paragraph 28e of the Amended Petition
alleges tnat
"the definition of Tier I [ in Ordinance 010-- .
�086� .�s ar bitrarily
�8
vague in that it does not specify whether wetland native
vegetated areas are to be included." Paragraph 2$k of
P the
.Nmended Petition alleges that the same LDR rovides '
p inadequate
protection for transitional wetlands and 'disturbed' salt t marsh
and buttonwood wetlands."
55. The criteria for designation of Tier I are not f vague .
The criteria clearly do not include wetland native v egetated
areas: The criteria "are used to evaluate upland habitats
5.
§ 9.5-256(c). The term "upland native habitat'' is used
throughout the criteria~ the term "wetland" does not
appear in
the criteria. Although some wetland areas have been '
n �- ncluded in
Tier I if part of a larger natural area, the focus '
of the Tier
system is on uplands.
56. The focus of the LDR Tier criteria on uplands '
p s is
consistent with the Pla Goal 205 states that t he
� � health
and integrity of Monroe County's native upland vegetation '
�' g tzon shall
be protected and, where possible, enhanced."' Obj ective � ective 2 05.1
requires the County to use various data sources "to '
identify and
map areas of upland vegetation in the Florida Key and to
prepare Tier overlay District maps." Policy 205.1.1 requires
quzres
the county to establish criteria for designation o '
g f Ti er I.
These Plan criteria refer to 'upland native veg etation"
and
"upland native habitat" and do not refer to wetlands,
e
Ii
57. The fact that the Tier I criteria are focused on
uplands, and not on wetlands, does not mean that wetlands are
unprotected. Section 9.5-338 of the new LDRs (in ordinance No.
008 -2006) provides that
No development activity, except as provided
in this division, are permitted in
mangroves, freshwater wetlands and in
disturbed saltmarsh and buttonwood wetlands;
the open space requirement is one hundred
(100) percent.
58. The one hundred percent open space ratio for mangrove,
freshwater wetlands, saltma.rsh, and buttonwood wetlands is
s
repeated in existing Section 9.54347 (b), which pr that
" [n ] o land shall be developed, used or occupied such that t the
amount of open space on the parcel proposed for development i
p s
.less than the open space ratio listed below for each habitat,"
59. Only limited water - related development is allowed in
undisturbed wetlands. §§ 9.5 --347 {c) (3) and 9.5-348(d).
Disturbed wetlands are protected based on their evaluation under
the Keys wetlands Evaluation Procedure. § 9.5 -348 d 6
� � � ) . These
wetland protections are adequate, and there is no need to
require that all wetlands be designated as Tier I. Also while
some parcels designated as Tier I are surrounded in art b 1
p y and
that appears to be submerged the absence of a Tier I
designation on the surrounding land does not render the
provision arbitrary since the new LDRs establish a race
p ss
�0
whereby a County biologist makes a site visit before the land
gets scored for development. Finally Petitioners'
unsubstantiated fear that federal and state agencies may ay not
adequately enforce their regulatory authority ver
y future
wetland development in the Keys, thus requiring a q g further
strengthening of the county's proposed LDRs, is an insufficient
basis upon which to invalidate the regulation.
60. The following parcels challenged b Petitioners rs were
correctly designated because the parcels are submerged lands ds or
wetlands that are not part of a larger natural area
K1o5a;
K112d and e;
K113a;
K125b;
K134b;
K137a and b;
K14 5b;
148 and 148/151;
K250a and b;
K3 8 7 a;
K441b;
K4 67b and c;
K538a;
K538/546a;
K553;
KS 7 5d;
K579
K581 and
K581/582a.
e. Tier I: Natural Areas Above Four Acres
61. One of the designation criteria for Tier I boundary
criteria is found in Section 9.5 -256 {c} ( 1 ) a. , in Ord inance � dinancs No .
010-2006) and reads as follows
1
rAN
mm "
Natural areas including old growth as
depicted on the 1985 Existing Conditions Map P
and new growth of upland native vegetation
areas identified by up --tow -date aerials and
site surveys above four (4) acres in area.
62. Paragraph 28c of the Amended Petition alleges g s that
this criterion "is arbitrary and capricious in that the relevant
science does not support a categorical determination
that
natural areas below that size threshold require less '
g protection
than those at or above that threshold."
88. The existing Plan (upon which the lang uage in
Section 9.5 -256 (c) 41 y a . is obviously patterned provides patterned) p ides that
one criterion for Tier I designation is "natural areas including
ncluding
old and new growth upland native vegetated areas a
• hove 4 acres
in area." Policy 205.1.1. In this respect, the '
p new CDR is
consistent with and implements Policy 205.1.1 and adds detail
concerning sources of information. However, this oli
p cy merely
establishes the "minimum" standard which the count must ust follow
in establishing the Tier I boundary designation and nd does not bar
a smaller size threshold, if appropriate.
64. There are no scientific studies of record which
h�ch
support a particular number of acres when designating natural
g g
areas for levels of protection. Studies do show, how ever r e rer, that
as patches of habitat become smaller, the ecological '
g function of
the watch deteriorates. (3iven these considerations, the County
points out that in order to prioritize ecological g cal and fiscal
2
6-2
resources, a policy decision (with respect to the size of Tier I
parcels) had to be made in order to create a system that hat could
be administered. It also points out that the Florida x Forever
Program seeks to purchase "large" parcels of hardwood '
hammock in
the Keys, presumably greater in size than four acres.
The
Florida Forever Program is a land acquisition r ra
p gam
administered by the Department of Environmental Protection.)
65. Four --acre tracts of ;'natural areas" are not •
insignificant or common; they are "huge" b Keys y y standards.
Simply because larger parcels have more value than
smaller ones
does not mean that smaller hammocks in the unique, small
'
q all-- ls].and
geography of the Keys are unimportant. Neither the FK
CSS. nor
the expert panel or peer reviews related to the study, support
the use of four acres as a threshold for hammock importance.
Indeed, the FKCSS and the best available science support the
importance of preserving as much nature hammock •
as passible.
The scientific evidence also shows that areas less
than four
acres serge an important biological function for wildlife in the
Keys. On the other hand, there is no relevant science that
supports the claim that hardwood hammocks of less than four
acres are not ecologically important or require less rotecti
p an
than do larger hammocks. Smaller hammocks are important for the
unique plant communities they contain, regardless a '
g f their
importance to wildlife. Finally, it is fair to infer from the
INN
evidence that the County's `policy" decision to use
a four --acre
threshold was not based on scientific considerations s butp in the
words of one County witness, was Simply a number the County
Commissioners "became comfortable with." ( In fact,, a January
19► 2004 memorandum by the County's outside cons
ultant, which
supports the four --acre threshold, was prepared after he knew
that the County had decided to use that size thre
shold. See
d
Respondents' Exhibit 5.) Because there is insufficient t evldance
to support the four -acre size limitation used in Section 9.5-
255 (c) (I ) a.. that provision, as now written should not be
validated. Therefore, the following parcels were
placed in an
incorrect category because of the arbitrary
Y our -acre size
limitation and should be re-evaluated b the County .. Y t Y after the
Tier I regulation is revised:
91 (triangle) Ranger Station;
K105c;
K106a and b;
K113c;
K124/114;
K125a;
K126;
K135a;
K135b;
K139a;
K141;
K2 42b and d;
K142/144/145;
K145c;
K14 6b and c;
K14 ?b;
K150;
K151d;
K151/152;
K2 81 a;
K371a, b and c;
K372a;
K387b and c;
K4 00a;
4 3 9a and b;
K441a;
K450/457;
K4 6 8 (orange area ) ;
K482;
K5 3 8b;
K538/546;
K548/549/540
K547;
K553;
K553/554;
K554b;
K5 7 5a;
K575c; and
K576.
f. Tier I: Known Locations of Threatened and En
Species den ered
66. Another designation criterion for Tier I 'is
found in
Section 9.5-256(c) Me. (in Ordinance No. 010-2006) and provides
as follows:
Known locations of threatened and endangered
section 9.5� -4
species as defined in g
,
identified on the Threatened and Endangered
Plant and Animal Ma Map or the Florida F�.orida Keys
Carrying Capacity Study, or identified in
on-site surveys.
6 7. Paragraph 28d of the Amended Petition alleges that
limiting Tier I protections to known locations id entified dentified on the
Threatened and Endangered Plant and Animal Map
is contrary to the science as the referenced
maps are not the best available science and
limiting protection to "known locations" of
such species arbitrarily fails to protect
�5
10 locations which have not yet been verified
as "known" locations, but which may or are
.likely to be important to protected species.
68. The Plan already provides that one criterion for Tier
I designation is 'known locations of threatened and endangered
species." see Policy 205.1.1. This new LDR is consistent
scent with
and implements Policy 205.1.1 and adds detail concerning sources
of information.
69. In addition to consistency with the Plan, the known
locations of threatened and endangered species criterion p rlon is a
rational standard. contrary to the allegations in the
Amended
Petition, the criterion is not limited to known locations as
shown on the Threatened and Endangered Plant and Animal Maps,
Known locations as identified in the FKCCS ma p s. and as
identified in on --site surveys, also meet this criterion
for
inclusion in Fier 1.
70. The thrust of Petitioners' allegation is that the
criterion ought to include suitable or potential habitat '
itat in Tier
I, rather than known locations, "Known locations" means a
location where the threatened or endangered species p has actually
been observed. 'Potential habitat" or "suitable habitat"
includes areas where the species has not been obsery
ed, but the
habitat is similar to areas where the species has
p been seen.
With the amendment of Tier I boundaries to an area
of less than
four acres, the vast majority of suitable habit '
at w111 be
included in that Tier, See Finding f Fact 65
g supra,
71. Petitioners also contend that the Tier system should
be based on the latest protected species maps, P p , and that those
used by the County are outdated and flawed, Some
� of the data
and imagery used by the County are several ear
y s old. Thi• s is
presumably due in part to the fact that the rocess o
p f formally
adopting these LDRs began several years ago, and the he county used
data existing at that time.) There are now available
lable United
States Fish and Wildlife service habitat maps ref •
la letting 2006
conditions, which would obviously be more desirab to use. At
some point in time, however, the process must come to
an end;
otherwise, the mapping studies would be constantly
y changing as
new data became available, new site visits and re-evaluation of
the parcels would be required each time the data w •
were revised,
and there would be no finality to the P rocess.
g. Tier I: Roads
72. Paragraph 28e of the Amended Petition alleges that the
Tier I designation criteria are arbitrarily vague gue because the
criteria do not "specify . . , how roads will impact the
determination of the relevant 'size area . ' "
73, The failure to address ever conceivable e factor does
not render the Tier I designation criteria arbitrary or vague.
The Tier I designation is intended to focus
on larger areas. and
37
"ION
0 the larger roads such as U.S. Highway 1 would have been
considered a break between natural areas. However . this
regulation should be distinguished from the determination '
s in
Finding of Fact 95, infra, Which relate to a lack of s tandards
when constructing roads in the much smaller SPA areas.
h. Tier I: f or Desiqn ation
74. Section 9.5-256(e) (in Ordinance No. 410--2006
provides that any individual may submit an application that
an
area meets the Tier I criteria that a special master shall hold
a public hearing on the application, and that the special p master
will render a written opinion to the
planning commission and board of county
commissioners either that the application
meets the criteria for designating the lands
as Tier I or that the documentation is
insufficient to warrant a map amendment.
75. Paragraph 28j of the Amended Petition alleges that
hat
Section 9.5-256(e) "grants the County commission unfettered
discretion to adopt or not adapt a special master recommendation
to change a parcel's Tier designation."
76. Subsection (e) of Section 9.5 -255 was not changed by
the new LDRs: therefore, the new LDR grants nothing '
g hat is not
already-in the LDRs . moreover, subsection (e provides � p ides a
standard for the commission's decision, that is whether "
• e the
application meets the criteria for designating he lands ds as Tier
I t F1
i. Tier I: Six Annual Allocations
77 . Section 9.5-122 (a) (6 ) of the new LDRs 4 in Ordinance
No. 009- -2006) provides as follows,
Limit on number of Allocation Awards in Tier
I: Except for Big Pine Key and No Name Key,
the annual number of allocation awards in
Tier I shall he limited to no more than
thre-e (3 ) in the Upper Keys and three (S) 'in
the mower Keys.
70. Paragraph 27a of the Amended Petition alleges that
Section 9.5 --122 (a) (6) is vague, arbitrary, and capricious
because it does not specify how the six allocations will be
determined. Section 9.5-122(a)(6) does not over -ride the rest
of the Tier system. Each application must still garner enough
g
points to out- compete the other applications. Section 9.5-
122 (a) (6 ) provides a further layer of protection for Tier I
parcels by specifying that, even if a larger number of Tier I
parcels have enough points for a ROGO or NROGO allocation no
more than six may receive allocations in each year.
j. Tier I: off -Shore Islands
79. Section 9.5-256 (c) (1) f . of the new LDRs (in Ordinance
No. 010 - 2006) provides that one criterion for designation as
Tier I is "Conservation, Native Area, Sparsely Settled and
Off-
Shore Island Land Use Districts." The adopted Tier Maps p show
some off - -shore 'Islands without a Tier designation.
80 . The county and Dep artment �' have agreed with Petitione
that the Tier raps should show the following off-shore islands
as. T i e-r
K25oc;
251;
252;
256;
390 (three islands) ;
4151 (two islands) ;
K5 4 6a;
5 67; and
K582 .
k. SPA one Acre of Hardwood
hammock or Pinelands
81. Section 9.5 (3 of
� the new LDRs ( in Ordinance
No. 01 0 - 2006) establishes that
the fundamental criterion for
designation as a SPA is as follows:
Designated. Tier III lands located
Big Pine Key and outside of
No Name Key with t ropical
hardwood hammock or pineiands
of greater
than one acre
shall be designated as Sp ecial
Protection Areas, p
82. Paragraph 2 $ f of the Amended Petition allege that th
e
one -acre criterion for SPA i
inconsistent with the best available
scienCe, which
does not support a
ca tegorical conclusion that habits
of one acre or .less t patches
is sire require less
Protection than those placed in the
category. SPA
83. The existing Plan rovi
p des that at a minimum,
'' Cdl esignated Tier III lands located outside of Big Pine Key and
nd
No Name Key with tropical hardwood hammock or pinelands of on
e
7
acre of greater shall be designated as Sp •
p c�.al Protect
Areas." Paragraph 4, Policy 205.1.1. In this respect, the new
LDR is consistent with and implements that rovisio
P n. As noted
above, however, this does not bar the count from using County sing a
smaller acreage threshold, if appropriate.
84. Like the four --acre threshold for Tier I ar
p cep 5, a
fair inference to be drawn from the evidence is that the
establishment of a one --acre threshold for SPA arcel '
p s with
tropical hardwood hammock or pinelands was a olio "
p y decis*
ion
by the county Commissioners, was simply number they hey felt
"comfortable" with, was not based on the best avail .
ilable science,
and is therefore arbitrary. Indeed, this olio "
p y decision was
inconsistent with a staff recommendation made in
2004 that Tier
III include "isolated upland habitat fragments of
9`m less than half
an acre." See Petitioners' Exhibit 29, page 8; Respondents'
Exhibit 9 page B. The County acknowledges that c
ur rent
regulations that govern site visits for the HEI are
based on
valid science appropriate to the Keys. Under that
system, the
County considers only those hammock atches less
p than .37 of an
acre to have no ecological value. Further, the County y now
awards positive points to patches of slightly more g y than one -
third of an acre for having ecological value. '
g Thus. it can be
reasonably inferred that patches greater than one of an
acre have ecological value and should be afforded mo re
protection than now provided. Given the lack of scientific '
evidence to support the one --acre threshold, the validity of
Section 9.5-256(c)(3). as now written, cannot be sustained.
85. To support the one --acre threshold, the County p oints
out that its staff performed site visits to the parcels in
question to determine whether a potential SPA was really
composed of hammock or pinelands and whether it was an acre or
greater in size. However, this type of f field work does not
address the issue of whether the one-- -acre threshold '
% supported
Pp d
by the best available science.
86. Accordingly, the following parcels were incorrectly
placed in another category because of the arbitrary one -- -acre
size limitation and should, be re-- evaluated after the SPA
regulation is revised:
K10 5b;
K105/106;
K10 6c and d;
K112a, b, c and f;
K113b, d and e;
K114;
K124/125;
K125b, c and e;
K133a, b. c, d. K133/134, K134a, c and d;
K134a;
K139b;
K142a and c;
K144/145 and 145a, d and e;
K146a and d;
K14 7 a and c;
K151a, b and c;
K152a and b;
K370-371;
K371d;
W
K372b;
K385;
K40Ob;
K412b;
K413a and b;
K41.4b;
K425;
K441b;
K450a, b and d;
K467a, d and e;
K549;
K554a;
K575/576; and
K581/582.
1• SPA: 40 Invasives
87. Section 9.5- 256 (c) (3) a. of the new LDR .
s {in Ordinance
No. 010-2006) provides conditions which "constitute a break in
pinelands or tropical hardwood hammock for c •
Iculat�.ng the one-
acre minimum patch size for designation" as a SPA. one of these
conditions is " [a] ny disturbed pinelands or hardwood hammock
with invasive coverage of forty (40) percent p or more. " § 9.5-•
2 56 (c) (3) a . 2 .
88. Paragraph 28g of the Amended Petition
alleges that
Section 9.5-256(c) (3)a.2. "is contra to the
Y science, which
calls for the removal of exotic vegetation to
g restore habitat
and re establish contiguity."
89. Taking invasive infestation into account
unt in
determining whether a patch is large enough '
g gh to qualify as a SPA
is consistent with the FKCSS, which stat
Successful restoration of lands to create
large patches of terrestrial habitats and
to
43
W. I
reestablish connectivity seems improbable.
Restoration would require the conversion of
large developed areas to native habitat, a
goal that would face legal constraints, as
well as high casts, uncertain probability of
success, and a long timeframe for execution.
Continuing and intensifying vacant land
acquisition and restoration programs may
provide more and faster returns in terms of
consolidating protection of habitats in the
Florida Keys,
Since the resources to address these issues are not Infinite,
money is better spent acquiring larger patches in Tier I than
in
trying to restore the smaller patches with exotic vegetation.
M. SPA: Central Sewer
90. Section 9.5 -256 (c) (3) b. 1. of the new LDRs tin
Ordinance No. 410 -2006) provides that the owners of lots
designated as SPA may petition for a rezoning to Tier III
if
[ t 1 he lot will be served by a central sewer
and the wastewater collection system has an
approved permit that was effective 3/21/06
to construct the system on file from the
Department of Environmental Protection;
91. Paragraph 28h of the Amended Petition alleges that
Section 9. 5-256 (c) (3) b. 1. is arbitrary because it "allows for
the removal of parcels from the SPA Tier for [a reason
unrelated to their habitat value, such as service b central
al
sewer . , of
92. The March 21, 2006 date in Section 9.5-256(c) l3
L ) b r l r
means that this condition for removal from SPA applies only in
p y
the service area of the North Key Largo sewage treatment plant.
i Al
H
The County and Department determined that development p ent should be
encouraged in the area served by the North Key La Y g sewer
plant, even though habitat that otherwise ualified
q for
designation as SPA existed in that service area. T '
The Principles
for Guiding Development require the count and D e par tment Y p tment to
improve nearshore water quality, and the best way
y to accomplish
this goal is to construct central sewer systems to replace
ep.lace
septic tanks. The Work Program adopted by the Administration
Commission requires the county to fund and construct the North
Key Largo central sewer system, which cannot be financed or
operated without a customer base. Designating arcels as
p SPA in
the North Key Largo service area would discourage d •
g development in
that service area. I •
In adopting and. approv this regulation.,
the County and the Department appropriate) balanced ed the
competing goals of the Principles for Guiding Devel
9 p nt.
Given these unique circumstances, the LDR is not arbitrary.
n • SPA: Sixteen Foot Road
93. Section 9.5-256(c) (3)b.2. of the new LDRs '
� in
Ordinance No. 010 - 2006) provides that owners of lo designated
as SPA may petition for a rezoning to Tier 111 if
Ctjhe lot is located within a one acre atch
of hammock that I's d'v' p
�. ided from the other
lots that make up the one acre or more p atch
by a paved road that is at least 16 feet
wide.
4
1%
94. Paragraph 28h of the Amended Petition alleges that
this provision is arbitrary because i't "allows for the removal
of parcels from the SPA Tier for [a reason unrelated ted to their
habitat value, . . . [such as] the existence of a paved road at
least 16' wide."
95. The new regulation provides that if the owner r o f an
undeveloped parcel designated as SPA constructs a '
sixteen -foot
wide paved road through his property, he may then '
Y e petition the
County to rezone the property as Tier III simply be
P Y cause a paved
road has been built. In providing this opportunity pP Y to rezone
and develop a SPA parcel., however, the count failed '
Y d to impose a
corresponding requirement that the owner demonstrate that
t the
_
functionality
of the existing hammocks has been compromised b
P y
the road. By omitting this requirement, or imposing any other
reasonable constraint, Section 9.5-256(c) (3)b.2. is arbitrary
because it allows a property owner to circumvent a SPA
designation by merely building a paved road..
o. SPA: Surve
96. Section 9.5-256(c) (3)c. of the new LDRs in
( ordinance
No. 410 - 2406) provides that
[ a ] ny hammock identified in the County's
data base and aerial surveys as 1.00 to 1.09
acres in area shah, be verified by survey Y
prior to its designation as Tier III-A. A
hammock that is deemed by survey and a field
review by County Biologists to fail the
minimum size criteria shall have the Special
�J
Protection Area designatic
subject parcel.
97. Paragraph 2 8 i of the Amend
Section 9.5 --256 (c) (8) c. is arbitrary
requires a survey of any h{
1.09 acres before designat.
while the balance of this
require a survey of parcel;
threshold set for Tier I betor
that a parcel should not be ple
I.
98. The Tier designations were accon__s6ned primarily by
using GIS mapping data. When applied to the larger Tier I
areas, a tenth of an acre is a small error. However, when
applied to the much smaller SPA, a tenth of an acre error can be
significant. The County's choice of surveying the smaller SPAS,
while not treating the Tier I areas in the same manner, was not
arbitrary. It is also reasonable to assume that in
administering this regulation, the county will require a
landowner to use a qualified surveyor to guarantee accuracy of
the survey, and not allow the landowner to submit a survey that
is self-serving and inaccurate.
p. SPA: Develo ment Standards
99. Paragraph 281 of the Amended Petition alleges that
" [ t 3 he development standards for Tier I I I -A (SPA) are inadequate
to protect the natural areas placed in that Tier."
2
LO
IN
loo. The development standards which apply specifically y p y to
•
parcels designated as SPA are
a. Residential development is discouraged
in SPAs, which receive 20 points towards a
ROGO application, while Tier III parcels
receive 30 points. § 9.5
b. Non-residential development is
discouraged in SPAs, which receive 10 points
towards an NROGO application, while Tier III
parcels receive 20 points. § 9.5-
124.7 (a) (1) .
C. No points are awarded for lot
aggregation for a ROGO application which
proposes clearing of any native upland
vegetation in a SPA. § 9.5-122.4(c),
d. No more than 40 percent of native upland
vegetation, up to a maximum of 7,500 square
feet, may be cleared i '
Y n Tier III. Including
SPAs. § 9,5-347(b),
e. For applications under consideration for
sixteen consecutive quarters, the preferred
County action is purchase for SPA, while an
allocation award is available for Tier III
that is not suitable for affordable housing.
§§ 9.5- 122.3(f) and 9.5- 124.7(f).
101. All generally applicable development standards also
apply to SPAs, such as the environmental design criteria in
Section 9.5 -348; the density and intensity limitations in
Sections 9.5 -261, 9.5 --262, 9.5-267, and 9.5 --269; the shoreline
setback requirement in Section 9.5 -249; and the scenic corridor
and bufferyard requirements in Sections 9.5 --375 through 9.
g 9.5-381.
These development standards applicable in SPAs are adequate q to to
protect these natural areas.
48
q. Clearinct on Aggregated Lots
102. Section 9.5-347(e) of the new LDRs (in Ordinance No.
008-2006) establishes clearing percentages within the Tiers.
For example, forty percent of native upland ve etation u
g p to a
maximum of 7,500 square feet, may be cleared on a 'Tier III
lot.
103. Under Section 9.5-122.4(c) of the new Tier S stem
Y , an
applicant can receive four additional points b aggregating
Y a
contiguous vacant, legally platted lot within Tier III. Lot
aggregation is "intended to encourage the voluntary eduction
Y of
density . me a off
104. Paragraph 26e of the Amended Petition (as orally
modified at the hearing) alleges that new Section 9.5-347(e)
"allows clearing on lots that receive points foraggregation,
'
thus failing to protect the natural areas that aggregation '
is
designed to protect." However, Section 9.5-122.4(c)
t )
that
No points for aggregation shall be awarded
for any application that proposes the
clearing of any native upland habitat in a
Tier III -A (Special Protection Area) area.
No aggregation of lots will be permitted in
Tier I.
Therefore, applications which receive points foraggregation
wil not fail l to protect natural areas because of '
clearing.
4
L
! r
t
W-..�
�1
r . Not - For- - Profit NROGO Exem tion in Tier III
1 05. Section 9.5-124.3(a) provides that certain types of
nonresidential development do not need an NRGGO allocation.
The
exemptions include such uses as public/government uses certain
industrial uses, and agriculture uses. For exam le Section
ectian
9,5-124.3(a)(4) of the new LDRs ( in ordinance No. 011-20
makes the following changes to one such exemption:
Development activity for certain not -for-
profit organizations: Except for the non-
p ublic institutional uses on B Pine ate
and No Name ate ursuant to section 9.5-
124.2, non residential development activity
within Tier III designated areas by
federally tax exempt not -for -- profit
educational., scientific, religious, social
cultural and recreational organizations,
which predgminately serve the county's
permanent population, if approved by the
planning commission after review and
recommendation by the planning director.
This exemption is subject to the condition
that a restrictive covenant be on the
p ropertV prior to the issuance of a buildin
ermit. The restrictive covenant shall run
in favor of Monroe County for p eriod of at
least twenty 20 ears. Any than a in the
use or ownership of the propertysubject, to
this restrictive covenant shall require
R rior -. !a2proval of the Planning commission
unless the total floor area exempted by the
P lanning commi s s ion is obtained th an
Off-site transfer of floor area and/or non
residential floor area allocation ursuant
to this chapter. If the total amount of
floor area that is transferrer{ and/or
allocated meets or exceeds the total amount
of floor area exempted, the restrictive
covenant shall be vacated by-the County.
This not-for-profit exemption is not
applicable to non development
e- n
L
proposed within a Tier F desicinated area.
L a m I -9120=
(Underscored portions represent new language
while the strike-through g
gh language represents
deleted portions)
106. Paragraph 29a of the Amended Petition alleges that
at
new Section 9.5-124,3(a)(4) "arbitrarily allows a 'not-for-
Profit' NRCGO exemption in the SPA that is not allowed i '
n Tier
Is if
107. The not NROGD exemption is not created by
the new LDRs: the new LDRs adopt new restrictions for
the
existing exemption. Moreover, there is nothing arbitrary about
treating SPA differently than Tier I; the two designations g ons are
treated differently throughout the Tier system, The Tier I
areas receive greater protection than the SPA areas as a matter
of design.
s. Existinq conditions Report
108. The LDRs at issue in this case delete language g ge in old
Section 9.5 -336, which references an "Existing Conditions ons Map,,
and create a new Section 9.5 --336, which references an "Exist'
ng
Conditions Reports" ( See Ordinance No. 008-2006). The new
section requires that an application for land containing upland
native vegetation communities must include a report p that
Ilk identifies the distribution and quality f native •
� tive habitat and
any observed endangered /threatened or rotected
p species within
the parcel proposed for development."
109. Paragraph 26a of the Amended Petition alleges that
new Section 9.5-336 "provides inadequate rote '
P coon for
endangered /threatened or protected species that are not observed
on the surveyed parcel, and does not require re
�I the use of the most
current state and federal protected species lists,"
Paragraph
26d of the Amended Petition also alleges that at new Sections 9.5-
336 "fails to require the identification of potential habitat of
protected species."
110. Petitioners have mistaken the significance g canoe of the
existing conditions report in the '
p e Tz e r S ystem. Under the old
HEI system, the habitat analysis required b •
q y aid Section 9.5-337
was used to determine the quality of habitat on the surveyed
parcel for the purpose of assigning oints. Under nder the Tier
System, each parcel has already been assigned •
g ed to a Tier. The
existing conditions repo is used for the
purpose of locating
development on the parcel that avoids the
most valuable habitat.
There is nothing in new Section 9.5-33 that suggests that the
most current state and federal lists will not be
used in the
preparation of the existing conditions report.
i I
5
_�E
t . Affordable Hous
111, At least twenty percent of the ROGC allocations can
only be used for affordable housing. See old § 9.5- -1
new § 9.5-122(a) (3)a.; Policy 101.2.4. Approximated. 7
Y 7,000
families in Monroe County are ;cast burdened," in that they pay
more than thirty percent of their income for housin w '
g, which is
part of the affordable housing crisis in the County,
Section 9.5-266 of the old LDRs provides standards
for affordable housing and grants an increase of de .
nsity in some
land use districts if the density is used for affordable
housing. The new LDRs (in Ordinance No. 009 -2006
) make the
following minor changes to Section 9.5-266(a)(8):
( 8 ) If an affordable or employee housing
project or an eligible commercial
apartment(s) designated for employee housing
contain (s} at least five (5) dwelling units,,
a maximum of twenty (20) percent of these
units may be developed as market rate
housing dwelling units. The owner of a
parcel of land must develop the market rate
housing dwelling units as an integral art
p
of an affordable or em
employee housing
g
project. In order for the market rate
housing dwelling units to be eligible for
incentives outlined in this section r the
owner must ensure that
a. The use of the market rate housing
dwelling unit is restricted for a period of
at least thirty (30), years to
households that derive at least seventy (7Q)
percent of their household income from
gainful employment in Monroe County; and
b. Tourist housing use and vacation rental
use of the market rate housing dwelling unit
is prohibited.
3
113. Paragraph 27g of the Amended Petition alleges g that
Section 9.5-266(a)(8) "allows housing units ermitted
P as
'affordable or employee housing' to be used for market rate
housin
114. The amendments to Section 9.5-266 ( a ) (8 ) make
only a
minor adjustment in the existing incentive to include
affordable
or employee housing in market rata projects. Moreover n either
either
the old nor the new Section 9 .5-266(a)(8) allows affordable
dable
housing ROCO allocations to be used for market rate housing.
ousing.
This section allows a developer to use market rata RQ
GO
allocations together with affordable housing OGO allocations ations to
take advantage of the increased density available to
affo rdabl e
housing projects, while also providing an economic '
�.ncentive to
construct affordable housing,
115. The new LDRs also address affordable housing
g Y
increasing the density for affordable housing n
g the Suburban
Commercial district from fifteen dwelling units er acre ore to
eighteen, se Section 9.5 -2 66 (a) (1) b . , and increasing the length
of time that an affordable housing unit must remain
affordable
from thirty years to privately financed ro 'ects an •
p d fifty years
for publicly financed projects to ninety-nine ear
Y years for all
affordable housing projects. § 9.5-266(f)(1
�
5
l
u. Market Rata Housinq Awards from Future Allocation
fcati�n
Periods
116. Section 9.5-- 122.1 (in Ordinance No. 0
provides the application procedure for residential ROOD
allocations. Subsection (h) in the old LD '
Rs, which has been
renumbered and amended as subsection (g) the he new LDRs
authorizes borrowing from future .ROGO allot '
allocations in limited
circumstances .
117. Paragraph 27b of the Amended Petitio alleges that
new Section 9.5--122. 1 (g) (1) . which allows the
Planning
Commission to award additional dwelling uni its from future annual
allocations to complete projects, "I's arbitrary and capricious
as it provides no standards or '
limits on whether or to what
extent such
h additional allocations can be awarded."
118. Among other things, Ordinance No. 009 -
2006 makes the
following changes to Section 9.5-122.1, which ich pertains to the
authority of the Planning Commission to awe '
rd units from future
allocations:
�-- Borrowing from future housin
allocations:
4 4z� `
planning comm, s the
sign may award addition
units from futur al
e annual dwelling
um allocations to fully grant an -Wr
- QW application for
residential
units- if such an application receives
an
allocation award for some, but not all.
of
Jamiargs
the units requested
.
The planning commission shall not reduce
any future market rate quarterly allocation
by more than twenty (20) percent
and
shall not MRly these reductions to more
than the next five (5) annual allocations or
twent L 2 0) c
juarterly allocations.
119. The amendments to the LDRs do not create the
authority of the Planning Commission to award future a
to complete projects; such authority already existed. The
amendments to Section 9.5-122.1 limit the extent of the
additional. allocations.
120. In addition, the Plan contemplates that residential
allocations can be borrowed from future uarters. S •
q See Policy
101.2.3. which provides procedures fo
_ p r the annual adjustment of
the number of permits.
ve Affordable Housing Awards from Future Allocation
Periods
121. The old LDRs provided the following guidance g g to the
.
Planning Commission for awarding future allocations: '-.
Multi
family affordable housing or elderly housing projects ect
g p ] s shall be
given priority." Section 9.5- -122.1 (g) (4) of the new .
e � LDRs � in
Ordinance No. 009 -2005) provides that
[t]he board of county commissioners, up on
planning commis
recommendation of the P
sion,
may make available for award up to one -
hundred ( 100 ) percent of the affordable
housing allocations available over the next
1
56
five annual allocations or twenty (20)
quarterly allocations.
122. Paragraph 27c of the Amended Petition alleges that
riew Section 9.5- -122.1 (g) (4)
is arbitrary and capricious and inconsistent
with the comprehensive plan, which does not
allow for allocations beyond the annual
caps. In addition, this allowance may
result in unacceptable evacuation and
environmental impacts.
123. As stated above, the Plan contemplates p that
residential allocations can be borrowed from future quarters.
See Policy 101.2.3, which provides that one of the factors to be
considered in the annual adjustment of the number
of permits is
the "number of allocations borrowed from future
quarters. "
124. The borrowing forward for affordable ho .
using projects
will assist the County in addressing he affordable dable housing
crisis. As noted above, approximate) 7 000 families Y amities in the
County are "cost -- burdened" by Paying more than thirty h�.rty percent of
.
their income for housing. See Finding f Fact
g 111 su ra.
125. The annual permit caps are the result of a
determination that there is a finite amount of development that
can be allowed in the Keys without exceeding
g 24-hour
evacuation time (in the event of hurricanes). While county
witness Conaway believes that the regulation '
g is subject to the
24-hour evacuation cap, she acknowledged tha '
g at it does not
specifically say that. Even so, in making ts
g annual
Y
� evaluation, the Count (and its
Y planning staff) wil l know ghat
the clearance time is from a particular area of the
Keys and the
amount of future allocations that can be issued without
exceeding the 24 --hour evacuation cap. Therefore it is
reasonable to assume that the new LDR will not result in
unacceptable evacuation impacts.
W, Administrative Relief
126. Both the old and the new LDRs provide administrative
relief for residential applications which have been
unsuccessful
in seeking a ROGO application. See old § 9.5 --12�
---OMW . f} and new
§ 9.5-- 122.3. The administrative relief available
under both the
old and the new sections is a grant of a ROGO alloc '
anon, an
offer to purchase the parcel at fair ma
rket value, or such other
relief as appropriate. The old section rovides administrative
p dministrative
relief if the application has been considered for
at least three
consecutive annual allocation periods, and the new secti tion if
the application has been considered for sixteen consecutive
quarterly allocation periods. The old and new NRGGO sections
have a similar provision. See old § 9.5 -124.7 and new § 9.5-
124.7(f).
127. Paragraphs 27e and 29b of the Amended Petition �tion allege
that new Sections 9.5- 122.3(f) and 9.5-124.7(f) "
� � fay 1 to
establish any required facts or findings as a condition
precedent before the county can provide a form of administrative
dminlstrative
58
relief other than an offer to purchase," However, the new
sections provide more guidance than the old LDRs because they
specify that an offer to purchase at fair market value shall be
the preferred action for Tier I parcels, SPA parcels, and Tier
III parcels suitable for affordable housing. Also, the new LDR
sections are consistent with Plan provisions regarding
administrative relief. See Policies 101.6.1, 101.6.5, and
105.2.12.
x. Protection of Listed Sp ecies
128. Paragraph 28m of the Amended Petition alleges that
Ordinance 010 -2006, which adopts changes to Section 9.5-256,
"provides inadequate protections for threatened or endangered
� ere
g
species or species of special concern."
129. Besides the thresholds used for Tier I and SPA
habitat patches (which presumably will be changed to smaller
areas in the future), the system uses other elements to place
lands in Tier I or SPA and adequately protects the majority of
undeveloped upland habitat in the Keys. The Tier system is
robust, easy to administer, and implements the guidelines of the
FKCCS .
y.
Protection
of
Habitat
130.
Paragraph
31
of the Amended Petition, as an ultimate
fact, alleges that " [ t1 he land development regulations approved
AN by the Final Orders are inadequate to protect the tropical
59
hardwood hammock, pine rockland, and transiti wetland
communities in the Keys."
131. The Tier system is not intended to ro
p tact wetland
communities; that is accomplished by other rovisi '
P vns in the
LDRs . (The tier designation is primarily des gned to protect
upland native habitat.) The new LDRs strongly '
9 y discourage
development in tropical hardwood hammock and
pine rackland,
communities, The 20- -point spread between Tier 1
and Tier III
and the 10 -point spread between SPA and Tier I •
III m ake .� t Very
difficult to develop in SPA and especially i '
p y n Tier I.
Z. Maj2p Errors
132 As might be expected, any county-wide mapping
apping
exercise of this magnitude will inevitably Include e same errors.
The County a n'd Department agree with Pet.i:tio
Hers that the
following parcels Were incorrectly designated:
71 (Tier III rectangle) should be Tier I.
91 (2 small lots) should be Tier I •
101 (2 small lots) should be Tier I;
102&103 ( Tier 0 parcel) should be Tier I •
109 dower right corner) should be Tier I;
117A
(rectangle) should be Tier 1;
K124a should be SPA;
K125d should be Tier I;
K140/141 should be Tier I;
K251/252 should be Tier I;
K281b should be Tier I;
K400b should be SPA;
K401b should be Tier I;
K412a should be Tier I;
K413b and c should be Tier I;
K414 should be Tier I;
K450c and a should be Tier I;
60
60
526 (peninsula north of US I ) should be T
I � Tier
K554c and d should be Tier I•
K566/567 should be Tier I;
K575b (except for 1 develo ed
Tier I: and p l ot) should b
K581 (portion drawn by Trivett
e) should be
Tier I.
aa. Bia Pine Key
133 Tier Maps 334, 344p and 345 are included in the
Amended Petition and in Petition Exhibits 67 and 68, both
entitled "Parcels Where Tier Designation gnaticn changes Recommended."
However, Petitioners offered no
testimony concerning these m aps .
P
Tier Maps 334, 34 4 r and 345 are located on Big Pi ne K . The
Tier overlay Maps for Big Pine K ey ey and No Name Key were adopted
p ed
by a separate ordinance which
is not at issue in this case.
bb. consis tency with the Pri
nci
Dev les for Guidin
elo ment
134. The Principles for Guiding Development for the
Florida Keys Area of Critical State Concern are found in
Section 3$0.0552(7)r Florida Statutes, and are the benchmark by
which to measure the valid-1 o
� f the LDRs. They read as
follows
(a) To strengthen local overn
g meat
capabilities for managing land use and
development so that local ove
g rnment is able
to achieve these objectives without the
continuation of the area Of cri
concern des' na cal state
g tion.
(b) To protect shoreline and
resou rtes f including marine
ng mangroves, coral reef
6 1
'WN
formations, Seagrass beds, wetlands, fish
and wildlife, and their habitat.
(c) To protect upland resources, tropical
biological communities,
ties f reshwater wetlands,
native tropical vegetation (for example,
hardwood hammocks and pinelands), dune
ridges and beaches, wildlife, and their
habitat.
(d) To ensure the maximum well-being of th
Florida e s and its ` e
Y citizens through sound
economic development.
(e) To limit the adverse impacts of
development on the quality of water
throughout the Florida Keys.
(f) To enhance natural scenic resources
promote the aesthetic benefits of the
natural environment, and ensure that
development is compatible with the unique
Florida Keys
historic character of the g
.
(g) To protect the historical herita a of
the Florida Key g
( h ) To protect the val e f f is ienc co
and Y► co
effectiveness
► amortized life of
existing and proposed major public
in.ves tments r including:
I. The Florida Keys Aqueduct and water supply uPp1Y
2. Sewage collection and disposal facilities;
llties;
3. Solid waste
collection and disposal facilities;
r
4 Key West Naval Air Station and othe •
facilities; military
5. Transportation facilities;
6. Federal parks, wildlife refuges, an '
�! , d marine
sanctuaries;
7. State parks, recreation facilities aquatic
preserves, and other
publicly owned properties;
8 . City electric service and the Florida Ke ys
Electric Co -op; and
9. Other utilities, as appropriate.
kil�
W To limit the adverse 'impacts P cts of public
investments
on the environmental resources
of the Florida Keys.
( j ) To make available adequate of
for al q fordable
housing 1 sectors of the population of
the Florida Keys.
(k) To provide adequate alternate
the protection o f gyres far
public safety and welfare
in the event of a natural or manmade
disaster and fora P isas ter ostd '
reconstruction plan.
( 1) To protect the public health
and welfare of the ► safety,
citizens of the Florida
Keys Keys and maintain the Florida
unique 'Ce que Florida resour
as a
.
135. Except for those portions
of new Sections 9.5-
256(c) (4).a., 9.5- (3) ► and 9.5-256(c) (3) b. 2. which relate
to the threshold sizes for Tier I and SPA natural areas and the
rezoning of SPA parcels based upon p the construction of a road
and the parcels identified in Findings of Fact 65, gp► 86 and
132 which were incorrectly designated, gnated the new LDRs are
consistent with, and implement the
Plan. Also, with the same
exceptions, the new LDRs streng the e County's capability for
managing land use and develo ment b
p y providing a transpar
easily implemented R4GO system that
can be understood, by the
citizens of the County. The new
Tier system avoids reliance on
the varied HEl interpretat' i ons of individual biologists and
simplifies implementation for County planning staff.
f
136. The new LDRs are not intended to
protect shoreline
and marine resources, which are
protected by other provisions in
the LDRs. However, as development is '
p curtailed In the upland
areas, the downstream effects of runoff will be .
limlted.
137, The new LDRs are not intended to
protect freshwater
wetlands or dune ridges and beaches; these are protected
elsewhere in the LDRs, except for those
provisions and parcels
described in Finding of Fact 135 the
new LDRs protect upland
.resources, tropical biological communities, and '
native tropical
vegetation by awarding fewer points to these '
sensitive upland
areas and directing development to scarified a '
and infill areas.
138. The new LDRs do not address sound
d economic
development.
139. The new LDRs are not intended to
address quality of
water, although they do promote good water
quality to some
extent by preserving natural habitat and open space, and thus
reducing runoff.
.
140. with the same exceptions identified •
aed zn Finding of
Fact 135, by protecting the vast ma of the upland habitat
and directing development to scarified .
and infi.11 areas, the new
LDRs will help maintain the scenic value and the historic
character of the Keys. with the sari •
e exceptions, the new LDRs
also protect the small, patches of hammock that contribute to th
community character of the Keys.
4
141. The new LDRs do not protect the historical heritage
of the Florida Keys, but also do nothing
g to harm the historical
heritage.
142. The new LDRs encourage the ublic
p purchase of lands
within the wildlife refuges and thus rot
p ect the value and
efficiency of those refuges. The new LDRs
also encourage the
cost - effective installation of central sewer c •
ollectlon and
disposal facilities by directing development pment to subdivisions
which are fifty percent built-out.
143. By directing growth to Tier III areas,
eas the Tier
system allows the County to avoid the construction of public
infrastructure to serve Tier I areas.
144. The new LDRs increase the density for or affordable
housing in the suburban commercial areas
and double the length
of time that an affordable unit must remain affordable. The new
LDRs also take steps to make adequate affordable able housing
available in the Keys by providing that a developer eveloper may receive
a density bonus by building some market rate hous•
ing as p o f
an affordable project.
145. The new LDRs maintain the limitation on the annual
number of development allocations and allow
the bounty to
maintain its ability to evacuate during
g a hurricane.
,
146. With the exception of those regulations
and parcels
AN identified in Finding of Fact 135 the n •
new LDRs designate the
65
majority of the Keys as Tier I, which is Intended for public
purchase. The only way to maintain the
hurricane evacuation
time is to purchase developable ra e •
p p rty and retire the
development rights.
147. Except as to those LDRs and arc 1 •
p e s identified in
Finding of Fact 135. the remaining DR •
g s are consistent with th
Principles for Guiding Development t as
p a whole.
CONCLUSIONS OF LAW
148. The Division of Administrative '
Hear�rtgs has
jurisdiction over this matter pursuant •
p ant to Sections I20.569 and
120-57, Florida Statutes.
149. If the final order approving or .
p g rejecting an
ordinance in an area of critical state c •
concern �s challenged in
a proceeding under Section 120.57, Florida S tatutes, "the state
planning agency [Department] has the burden of proving the
validity of the final order." § 380.05(6) Fla. Stat . ; Rathkam
et al. v. Dep artment o f Community Affairs et al., DoAH Case No.
97 --5952 (DOAH Sept. 34. x.99$ • DC
A Dec. 4, 1998 1998 Fla. Env
LEXIS 342 aff Id. 740 So. 2d 1209 FIa.
f 3d DCA 19 g9) .
150. Because this is a de novo roc '
p ceding. the facts and
legal conclusions reached b the De .
y Dep artment 'in its Final orders
are not controlling. Rathkam at *26. Als even though th
Department published five Final Order .
Orders in this case, they do not
constitute final agency action. Rather, final agency action
66
will not be taken until. this Recommended Order is submitted to
the Department and a final dispos .
p szticn of that filing is made.
Rathkarn , supra.
151 The standard for Department approval or rejection of
a LDR is consistency with the P rinciples p s for Guiding
Development. § 380 . Q552 { 7 } , Fla. Stat. Land development
regulations must also be consistent with the County's Plan.
§§ 163.3194 ( 1) (b) and 163.3201 Fla Stat.
152 except as to Sections 9.5-256
(c) {4}a,, 9.5-256 (c) X33,
and 9.5-256(c) (3)b-2., all of which are in Ordinance No 010
2006, and the parcels identified in .
Findings of Fact 65, 80. 8
and 132, which are in Ordinance No. 013 2QO6, by a preponderance
of the evidence, the Department and C ounty have established that
Ordinance No. 448 -2Q46 (except for the unopposed deletion of
Section 9.5-342), Ordinance No. 009-2006, 6, Ordinance No. 010-
2 0 Q G. Ordinance No. 011-2006, and Ordinance rdlnance No. 013 -2006 are
consistent with the Principles of Guiding Devel opment and the
County's Plan. 3'here fare f to this extent, , the validity of the
Final. Orders has been proven. § 380
. Q5 (6), Fla. St at.
253. Finally, each of the Count Ordinances County rdinances contains a
severabillty clause. As Respondents o'
p .ant out, it is not
necessary or desirable to reject an entzre '
1 ' 1 er Map series based
on a limited number of incorrect) designated gnated parcels. As to
those incorrectly designated arcez
p s. the County will have to
�p
ff i�
68
adopt a new Tier designation. Therefore the '
Therefore, e rerna�.nd.e r of the
Tier Map series in ordinance No. 013 - 2006 should be approved.
The doctrine of severability should also be '
applied to those
textual provisions found to be arbitrary. This '
y includes the
three sections in ordinance No. 010 --2006 •
as well as Section
9.5 -342 in Ordinance No. 008- -2006, which was s previous ly rejected
by the Department and is not contested by any party. In all
other respects, the Ordinances should be appr oved.
pp cued.
RECOMMENDATION
Based, on the foregoing Findings of Fact and •
on.clusicns of
Law, it is
RECOMMENDED that the Department of Community
y Affairs enter
a final order approving '
pP g ordinance No. 008 -2006, except for the
deletion of Section 9.5-342; Ordinance No. 009-2006; Ordi rya nce
No. 010-2006, except for Sections 9.5-256 (c) (4) a., 9.5-
255 (c) (3), and 9-5-256(c) (3)b.2.; Ordinance No. 011-200; and
Ordinance No. 013-2006, except for the arc •
p el s 3dentx f ied
. In
Findings of Fact 65, 80 86, and 132.,
ff i�
68
'Nk
DONE AND ENTERED this 26th day of June, 2007, '
. In
Tallahassee, Leon County, Florida,
O il 7 .w.,
DONALD R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings
The Desoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399 -3060
(850) 488-9675 SUNCOM 278 --9675
Fax Filing (850) 921 -6847
www.doah.state.fl.u
Filed with the clerk of the
Division of Administrative s
this 26th day earin of Tune g
Y . 200 ?.
Y ENDNOTES
1/ All references are to the 2006 version of the Florida
Statutes.
2/ The Amended Petition contains two ar
' p agraphs numbered as 31.
The first is a material fact disputed and allegation that ninety
sheets of the Tier Overlap Maps are incons
adoration criteria . The intent with the
second paragraph numbered a 31 is an
ultimate fact allegation that the LDRs are •
the tropical hardwood h �- rxadequate to prot
ammock, pine rockland, and transitional
wetland communities in the Keys. Both cont •
entlons are addressed
in the Recommended Order.
3/ Specifically, Petitioners' Exhibits •
1 11 are duplicated by
Respondents' Exhibits 19, 13, 20, 14 21 15
ect ivel ' • 22 ' 16 ' 23' 17 and.
12, and 8, respectively; y; Petitioners' Exhibit 23 by Respondents
Exhibit 1; Petitioners' Exhibits 27-29 b p is
y Respondents' Exhibits
25, 4, and 9, respectively; Petitioners' •
Respondents' Ex Petitioners' Exhibit 38 by
Res
P Exhibit 3 7; and Exhibit 39
Respondents' Exhibit 31. by
By agreement of the parties, copies of
Petitioners' exhibits which duplicate other
been filed with the r exhibits have not
undersigned . In addi t.i on, at the outset
the final, hearing, the parties offered ,� of
Joint Exhibits 1 -18,
69
11N
which were received in evidence. Haw
the ever, by letter dated
June 20 2007
► pasties indicated that these exhibits w
being withdrawn since they duplicate ere
record. P other exhibits in the
4/ The validity of that rule and
� others) wa upheld in Florida
Keys Coalition Inc. et al. Fl v Florida or�.
a Administration
Commission et al., 947 5 2d 493
(Fla. 3d DCA 2006).
5/ The record shows that l 7 , 64 2 a r
Tier I, 1,395 i P cols have been placed into
into Tier I1. 745 into SPA. and 25 167 i
II1. Of those parcels. only 6.004 are vacant in Ti into Tier
Tier I, 497 in
Tier II. 29$ in SPA, and 5,489 in Ti III. There are only
11,679 vacant acres remaining in the '
County, 5 �e Petitioners' E unincorporated, area of the
Exhibit 73.
6/ There are two sets of Tier ma •
Petitioners, P sheets in the record, one
sponsored by and the other sponsored b
Each map or sheet Contains at leas Y the County.
st one parcel. but in most
cases multiple parc of land with their respective
designations. For
purposes of this Recommended Order, the
sheets (or maps) sponsored by Petitioners,
h witness truer
Petitioners' Exhibit 26
} have been identified as truer ma
with the letter "IKn preceding the ma Ps
sponsored, by the coup P nurnk�er, while those
l2 ty � s witness Trivette (Respondents'
y have been identified with the ma nu Exhibit
preceding letter. P tuber only and no
COPIES FURNISHED:
Thomas G. Pelham, Secretary
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399- -2100
Richard J. Grosso, Esquire
Everglades Law Center, Inc,
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, Florida 33314 -7721
Robert N. Hartsell, Es
Everglades Law Center, Inc
818 U.S. Highway 1, Suite 8
North Palm Beach. Florida 33408 --3831
Richard E. Shine, Esquire
Department Of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Fl 32399--2100
David L. Jordan, Esquire
Greenberg Traurig P.A.
Post Office Box 1838
Tallahassee, Florida 32302-1838
Robert B. Shillinger, Jr., Esquire
Chief Assistant County Attorney
Post Office Box 1026
Key west, Florida 33041 -1025
Shaw P. Stiller. General Counsel
Department of Community Affairs
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399 -2100
NOTICE of RIGHT TO FILE EXCEPTIONS
All parties have the right to submit written '
I5 days of the date of this Reco mmended ceptions within
�am�nended Order Any exceptions
to this Recommended Order should be filed with
will render a final t the agency that
order in this matter.
71
/�
r
S
FINAL 0RDVR NO. DCA07- G14-166
TATE 01p pLOR.TDA
DLPART�� 0�* C
� �� � QTY' AFF+A�R,g
R� DA KEYS CITIZENS
S
KEY I NC . , and PROTECT
BEST AND THE F
INC . r d /�j FLORIDA �EYS,
/a LAST STAND
Petitioners,
vs. D0Ajj
Case N° • 06-24 4
9aM
DEPARTMENT DF CO
AFFAIRS MMUNITY
and MONROE COUNTY
Re spondents,
This matter was
considered by the S
Depa rtrnent eGret axy o f the
f Cor munity Affairs 1rs fo2 � Wing rece3
Recommended Orde pt of a
r is � an
Y Adrninistrative
Law Judge
Division of A arings copy of th
�inistrati Re e
- A co
Order i s a °f the Reco�en
appended to t his Fin ed
nai Order as Exhib
it A,
$a c� rauna and S
ummar of Proceedin
i 6 s
On J une
r ����r the De
pu
Final Orders determining of five
ermining that Ordi nance Nos. 008- 2006 009 2006
010 ~2006r ��1-
00 6 and ply-- ,
006 adapted b
206 were one m b y the Caunty in M
With ' arch
mi nor exception consist with th
requirements of Chapter Statutes and were pier ��o� Florida atutes
aPProved. ere therefo
On `TuIY 7. 2006
Florida Keys Citi t1z ens coalition
West Prot Key Wes Inc. a
and the Florid Ke ys Inc
if d /b /a Last Stand,
�Z
FINAL DR
R NG • DCA47 -G
died a PetitzGn �- r M�155
��` adT�In.z S L ra t � r
� �► e hearing reg: rd i,
�'7 i S P etition was the
amended once prior �-
-o the final hearing.
The final
nearing was scheduled for Se t
At the request p mY'er ZI -iS, 20�, 5.
q st of the
parties. the heax'zr7
g was continued twi
and then hel d in Mi ami / ce
Florida on F
continued uar�r 6-7. 2007 • A
hearing was held
on March 14-15 01 2007
Pi orid • Up on cons3dex'at in Tallahassee
zvn of
p
th e eVidence and
fi lings, the Adm post - heari
zni strative haw Judge entered a Recom
rejecting al i but t ended order
three { 3 y O f th
allegations rocs
Amended Petition. ed in the
The order x'ecomm
ends that the Department enter
a final order approving Ordinance No
• 008 - 2005. exce t
deletion of Section p for the
zon �•� - Ordinan � e No -
oa�w��o5• Ordinance
N O - 0 10 -2006 e .
_ e x cept for Sections g - �,
S 2S5 icy {�3 a.. 9--
and 9 - 5 - 255 (c) (3 h S .255 {c) (3),
� • 2 - : ordinan ce
No. 0II -205; an
013-20 except d O rdinance No.
P for the parcel .
zdentifzed in Fi nding s 5S, 80 S5 ndings of fact
► and 132.
Standard of Revi
of Recommended or
The Admini der
strative Procedure
Act contemplates
Department will a dopt t hat the
an Administrative Law Judge's
e F � s Recommended
Drder as the agen n cy s Order
in m °s t proceeding
end the Depar t ment has b T t h i s
been granted °n ib 3 imited
au thori t ;r t
reject or modify y findings of fac
t in a Recommended Order,
PagA 2 Of 13
e
e
FINAL ORDER No. DC
A07-G14-166
Pjection or modificat '
law may not for ion of conclusions cf
m the basis for re-' ec
-J tion or
m°aification of findings of fact. The ag
ar the findings g cy
fir °f fact
unless the agency first determines f ram
the entire record a
review of
particularity in the and states with
Of fact Wer ox'der, that the f i n •
di
e not based up co ngs
substantial evidence mpetent
on whi ch the °r that the proceedings
gs Were based gs
findin
comply with essential did not
requirements of law.
Fla. stat. § 320.57
Absent a de monstration that the underl in
Y g administrati
Proceeding departed from essential requ
ve
irements ��
ALJ' s fin of law, [a l n
dings cannot be re 'e
c ted unless there is
substantial evidence n° competent,
10ON from which the findings
c °uId reasonabl
inferred. si v, y be
De art men t of Health
. 823 S 2d 823, 82
( Fla . Is DCA 2002 c ' � �
�� ltatzon$ omitte
d • In
challenged findings eterminer,
g whether
ngs are supported b
Y the record in actor
this standard Depart d with
• the may not rewei9h the evide
]cage the credibility Ce or
tY of witnesses, both
tasks being within
sale province of the Admini the
Administrative Law
Judge as the finder
fact. see Heifet� of
�- v . �e artment 0f $us . R
e • . 475 So, 2d 1277
1281 -83 (Fla. ist DCA
I9S5} ,
' the Administrative
Procedure Act also
specifies the manner
in which the Department �' ment is to address
..anti uslons of law in
Recommended order. a
Page 3 of 13
g�1
FINAL ORDER no. DCA
.. 1",.... age =l�C'y in .I Cs f z
modz f nab. order may rF � a .�
y the c oncl us i ons of .ter
has subs t ant ; yr jurisdiction law Over which -it
e s and
int °rpretation of .
administrative rules over
w hich it has substantiv o jurisdiction.
g r modifying such co When
rejecting interpretation of conclusion of law
m administrativ ru
y t state with particularity the
agent ' act ' ul ari ty i t.�
reasons for re
conclusio ] rejecting or modifying such
of law or inter
administrative rule interpretation of
th its su and must make a find'
bstituted co ing
°n of Saw or
interpretation of
administra rule ,� e'
or more �'ea$onabl a than z s as
rejected or modified.
that which was
g
aced upon the stateme itself and not the
assigned. label
Fla. stet. § 12.57
•
Courl (l) �I�: Dewitt v School Sa
Board of ra
� ► 799 S 2d a
322 (Fla. 2 na i DCA 200
.
The label assigned a
statement is not dis
positive as to
whether it is a finding of fact or conclusi on of law. See Kinne
v. Department of State
► Sol So, 2 1277 (Fla th
S DCA 1-987).
Conclusions of Zaw 1a
baled as findings 9 of fact and findin
labeled as conc3us.io g9
ns , wi �.1 be oohs i
findin b dared
as a conclusion or
i
Rulngs on Exceptions
r
f
�k
The Recommended Or entered June 26, 2 contains the
following Notice o .
f Right to File Fx • 10
ceptions
All parties have the
exceptions right t a submit written
within IS da s from ten
this Reoomm the date of
ended or
this R der. Any exceptions
Recommended order should ons t o
the a enc� that uId be filed with
will i the Final
t.��at ter. [emphasi • order in
�° � s added ] - .
Page 4 Of 13
41%
FINAL ORDER No
DOA -7
7'nis ��t.].t ~e aCCll �
6�
rateiy sets fort the t i ming .
and f � � .InC,�'
requirements for exceptions
_ set forth �n Sec ' r
t1.�n 12 ( 1 ) !1fi
Florida Statutes
and Puce 28 10.237
Code. F1 f t Fif teen � X 3 5 Florida Administrentry t 1 �e
� days from entry of the Recommended
I Ju Z Orde � - s
July 31 �04�. The agency g ay that will issue .
the Final order i
this case is the De n
Dep artment of Communi
Y Affairs.
Petitioners filed "pe .
titzorlE?r' s E.�ce ti
p ons to the
Recornmended Order''
on July 12, 2046. Res
"Respondents' Exceptions pondents flied
2006. Pet ' ons t o the Reco
pt i rnm
ended Order" an J uly Petitioner f . Y � � ,
zled "Petitioner's
Res on to Res oI7
Exceptions to the R P dents
ecommended Order" on Ju
Res Zy 2 0. 2006. Fina
pQnden is f i I filed a I ly.
"Joint Response to Petit' •
loners Exceptions t
the Recommended Order"
on July 23,
00 j5 . These Exce ti
Responses were ti p ons and
timely fil ed with the Department, tb
agency for such filin e proper
.
These Except and that Response were considered a t h
Exceptions are ruled e
upon in turn below.
z. Petitioner Exce '
tion one: Wetlands
in in Fact 5
The Administrative haw J 5 60
ud ..�"
g e mad s o f
e findings about exclusion of w t th e
etlands in the Tier I designation criteria,
The fifteen ( I5) d
automatically e days for filing exceptions
.� xtended by virtue o pt lops ys not
Fla. Adm,fn. Code r, f the manner o
2 � - I���.217(41 %.� Of " service. See
added to the time a addztlonai '
limits far film time sha? I he
r%- zPt zc ns when servic � g exceptions or r
':as oeen :Wade b es�aonse t o
Page � Df 13
FINAL G
' RDA
R No. Dc�47- -GM - ��
Pe titioner chaiia �, _ 6
nC;_.S this e: {C�uSZrn a:3 0
d r. que c hat Cer
pax'Ce,� s be
given a Tier T desi nat' a
g .� n because they wet - l ands. The c l contain
court �nrerpreted the cr'
` a t e ri a in the plan arid Code
to not req uire the inclusio of
Wetlands. Petitioner
the uniform testimo rgues th at
any of the ex perts tha
the Ke
t ys ecosystem .
� rn i s a
mix of upl and wetland that work to gether does not su
such a finding. The Admini ppo� -t
Administrative Law
Judge fo und that t
criteria for Tier I he
desi are no
t vague and do not i
wetland na upland include
habitats. . He found the criteria consistent
wit the fount
Y' s comprehensive Plan which provides tha t
c riteria refer to `iu the Plan
pland native ve eta
qt ion" ... and ... -,.0
native habit and pZ and
does not refer t %�
upland wetl
• T
court also found that he
wetlands were adequately protected
sections in a
ons of the C ount Cher
�' s land de ve l o men
p t re gulations. A r
Of the record valid eui
aces existence of su
bstantial compete
evidence as the p nt
basis of the court' ,
s respective findings
and conclusion of law of fact
Poli
{ comprehen s z ire Plan n Goal 205, Gbj ectiv
245.E and e
� 2��•z•�, 9 .5 -335 -
347 (b), . Sections 9 . 5 256 (c) 9. �7 �c 5rt3 9. S
and 9-5-348(d) a
� f the Count 's
Deveiopment R Y Land
Regulations. Acco
rdingjy, petitions
One is DENIED. rs Exception
page ' G f 13
FINAL ORDER NO,
DCA07- GM_I65
2 • Pet itioner Exc
ep�t Bio3o yca
--�- l F i Fad
Fact 7; �n cf
Petitioner challer, A
g..s the A.dministratisre
L aw Jude' �
to f1��
.limit Tier I protections
specified maps and through P ections to known i .
orations identified
on
ugh on--site serve
Ys• Petitioner asks t
the County be direr that
t ed t o use the iJni United States Fish and
Service 2046 Biological Wildlife
gical Opinion Ma Ps P of Potentially S
Habitat for federall y prot table
ected species, W hile acknowledgi
these maps "would obviously that
iously be more desirable to use" the
Administrative Law Judge found that
a t some Point, the
come to an process
must
. end and using consta
ntly changing data
mapping studies would result i and
n there bei
process. n
g no finality to the
�'he court also
found that the Ti er I designation
criteria providing for r inclusion
of "known location
threatened and endangered s of
species" was c onsistent with the
Coup t y' s Compreh ens .
ive Plan. Plan Ob jective 205.1 is Ilea
Providing that one criterion f F i n
threatened �'i er � d
esignaticn is simi
"known locations of larly
reatened and en
dangered s.�
i aGa t iQlls are whey' species." . Known such species have act been observed.
Conversely, the United States Fish and Wildlife use S
pr =posed fo,r Service Maps Fet i t ionerf s coat
4� p4. Int map 1poten-
u.L i..able habitat. In ly
�
ad�I :�r_ .
1 on h ,0 new c
Pm ea n -
Page 7 of 13
r V�
FINAL ORDER NC . DCA0 7
R �'guiatlC)ns �� � Y�6
o,ri de for a means t-- modi f r ma ,
s o a se0 �
ne,w information
ine"l uding that wh.z. c h m
ght come from the U;
5 t a t es Fish and Wi I dz y f o� ~�i t ed
�. e �Ser ri ce Maps. A rezri
ear of the retard
Validates existence of
substant1all competent P t evidence as th
balls of the court' •
s findings. (County Co mprehensi ve mPrehensive PI an
Objective 205.1 and '
Section 9 -5-256(e) of
the County's hand
Development Regulations.) Accor dingly. Pet i
Petitioners' Exception
is DENIED. Two
3 . Res ondents' Exce '
ti on One Tier F Natural Arcamr-, nti.___
Acres
�.� n ve r'our
Find�.n � s a f Fa
Pal. icy 205.1.1 of the
mon roe County Comprehensiv P ensive Pl.an
establishes the criteria eri. a designation for the ,3R of t • he
those criteria Tiers . one
I "not of
oral. areas including old and new growth
upland vegetated areas
above 4 acres in area ..
. The
Administrative I,af,,r Ju dge found that' Poi i c ��
Y �OS.I.I
the 'minimum' merely
se
Y is
standard which the County must follow in
establishing the Tier I
boundary designat i.a
n and does not bar a
smaller threshold, if a r
ppzopri a to , ' Accordin i
g Y. the court
directed re ion of those parcels Ia
P ced in an incorrect
category due to the arbi four acre limitation. R s pond
argues that the four acre
Tier l. designation cri terio n riterion was a
policy decision of the County and s consistent wit Countth the
Principles for Guiding Deve lopment o f '
I or 1 da K eys Area of
N
Pa ge 8 Of 13
41%
s.
. �f FINAL ORDER I�TQ . D
�A G�1 -I56
Critical State Concern, and tr
:a t t
parc'e3 s need not be
evaluated. r�
The AC�min3St ;atlVe r
La �r Judgre found that
Count,' Comprehensive the existing
Comprehensive PI an e n
�tablzs
as "o criteria hed a four (4
acre threshold
i o r �, '
zer 4
des��na tion.� r i
Testimony substant such natural h na,�ural areas .
i
ated that the relevant Plan . com pal i cy did no
seek to I im.i t Fier t
� designation to only hammocks exceeding (4 ) acres in size. g foux
A review of the reco validates exist
nce
findi of
• compet evidence as t basis of the court's
ra. s art
g (Plan Policy 2 45. 1 .
1 ► Te s t i many Conawa Y V2 at 247 - 25o;
Jettan VIA
at 1212 -I213. 121 6 - 1217; Trivette V5 at 5
V 58 -559 I�reur
7 at 845 -852
and Calvo V3 at 340-341.) Accordi
i s DENIED. ngl
Exception One Y• Respond
4. Res andents� E xce .
t1an two: S ecial p •
teot1on Area SPA
Har dwood Hammock ar �
Pinelands Above On Acr
A s with the four acre cr '
z terion far Fier r
the ft-e
Administrative Law Judge f that the
bounty s Compreh en •
Pl an one acre criteri s .1 ve
far SPA merely established a mi
stand and that a smaller . m
alley size threshold •
d z a
s not barred.
Respondent again argues that the Cou
a the C made a policy d ecis .
an d that Gaa2 205 of lan
Comprehensive Plan leaves na rao
smaller size . 'the A m for a
Ad ministrative haw
Nudge found that
th e one �Z) acre threshold r..shold was arbitrary, y' w as reputed by scie
.i e
d nce
an rep simpl a
� cumber the Court i r e r
Page 9 of 13
FINAL ORDER No
DcA Q7 _ GM. 16 6
A review of the �
r%a._ord =raiidat
- es exis
Subs - tence of
�. l a 1, r' O PYl L e t e n t a
b 0 t � r ;-..�
findings. (plan Po 3sr -
i�c� 2 �5.3.I� �'es;- .
�- z mon�r, Ca I vo V3 a t 3 4
Harrison VIo at 135 1-1353 ; 5 3 ; Canawa 0 ~34I;
�. , ��
� at 186; Je t t on V9 11771 VIO at 1209 - at 1176 -
210, I -z��9, 12 Accordingly,
3 5 . }
Respondents'
Exception Two is DENIED.
Order
Upon review and considerate
on of the e
nt ire record of t .
proceeding, inc3 udin h � s
9 the Recommended Or der and exce Lion
by Petitioners an s filed
d Respondents, it
is hereby order a ed
1 • the f s faiiaws
findings o f fact and conc l u
scions of law in t
Recommended Order a he
re adopted,
28. The Admini
strat -
lve haw Judge' 9 s zecommendati
accepted on is
3. Monroe Count ordinance No, do
2006 exce t p far t
deletion O f S ect i �. ��.►� �� � he
on 9.a - 342; Ordi
No. 014 - 2006 except
No. 009 -2406; Ordi
for Sections
256 { c} �4)a.f -9-5.2S6
and 9- 5.256 (c) (3 b . (3) ►
� 2 -. ordinance No.
- 2006 e 1 -2006; 24fl6: and
013 t f Or dinance N
P or the pay - eels id � . ed in Find'
ent z f i n
65, 8�, S6, and 33 gr of fact
2 , are hereby a
PProved .
DONE AND ORDERED in Tallahassee, Fior4
da.
Pa 10 of 13
I S FINAL ORDER 11TO. D
CAQ7- GM_I66
r
Thoma
G. Pel am S
DEPART;�ENT of Secre :Ek��
COMMUNITY AFFAIRS
2555 Shumard oak B
ievard
Tallahas Flo 32399 -2ID
a
NOTICE OF RIGHTS
ANY PARTY TO THIS pRD
RE�1'I EW of THE ORDER ER �iAS THE RIGHT Tp
ER PURSUANT TO SECTION SEEK JUDICIAL
AND FLORIDA RULES OF ON FL
APPELLATE PROCEDURE CR IDA STATUTE
9. a30 (b) (1)C. AND 9.110.
TC INITIATE AN APPE
EAL CF THIS ORDER A
THE DEPARTMENT=S AGENCY NOTICE OF APPEAL
BE RILED WITH �yI]
CY CLERK
BOULEVARD TALLAHASSEE, 555 ST
EE FLORIDA FLOR 3 2 3 9 9- 2 I SHU�RD DAR
DAY THIS ORDER IS FIL X0 WITHIN 30 DA YS D
WITH THE AGENCY CLERK, THE;
APPEAL MUST BE SUBSI' LERK , TH
ANTIALLY IN THE FORM E NOTICE OF
RULE OF APPELLATE PRO PRESCRIBED
APPEAL MUST PROCEDURE g . g � a { a � . A By FLORIDA
BE FILED WITH THE A COPY OF THE NOTICE
APPEAL AND MUST $E A PPROPR LATE DISTRICT I C OF
COOMPANIED EY THE FILING �" COURT OF
SECTION 35 -22(3) . FLORIDA STATUTES.
LING FEE SPECIFIED ECI FIED IN
y
YOU W AIVE YOUR RIGHT
To JUDICIAL REVIEW
APPEAL I S NOT TI I F THE NOTICE CE of
TIMELY FILED W,I TH TH
APPRCpR IATE ' DI S T'RI CT AGEII�CY CL ERK COURT aF APPEAL. AND T14E
MEDIATION UNDER SECTION 120 .573 1 F . S , I ,
RESPECT TO THE ISSUES AT . IS NOT RESOLED BY THIS 'ORDER.
s.
Page 11 ,;� 13
r
■
7
44%
Final order No D
CAS ? -GI4_ 166
CERTIFICATE OF VI
LING rNG ArrD sEVvz ��
� HEREBY CERTIFY that the orig i na l
flied with t ina I
th undersigned A g Of the fore
file nit Affair Ag ency Clerk o
going has hee
Affairs/ and that true f the �epa rt mien n
furnished
t o the a ai'�d Corr t o f
thi e p °rsons listed heI correct cap3 es have he
f—d a �r a f Se � � z n the ma, ptemher nner described
207, I on
1
Paula For
Agency Clerk
Nand D eliver
Richard �
d E. Shine, Es
Assistant General .
Assistant Departm al Caunse3
Departme of Cammunity Aff
2555 Shumard O aix
El vd .
Ta llahassee, FL 32399 - 240
Inter -- Agency Mai
�.�. Donald �
R. Alexander
A dministrativ e
Division of Ad ministrative Judge
The nistrative He
DeSot o Bui lding are ngs
223 Apa3achee
�'a I I aha Parkway
ssee, FL 32399 -3050
By U• S. MalI
Richard J. Grosso
Everglades Law C Esq.
enter, Inc.
Nova Southeastern
33v5 College niversity
fie Avenue
Fart Lauderdale FL 33314-7721
Ro bert H. Hartsell l► Esq.
Everg lades des Law Center
Inc.
818 U- S► H � ► Suite 8
North Palm Beach, FL 33
P=ge }3 of 13
_ rr
' �
d
i
rc e
Da ;ri ci �, • � �rdan _
Greenberg -� r ESCF .
1r"urig P.A.
Fo BOX 1838
T allahassee,. EL 32302~1838
Robert Shilling, Y
Monroe CO ► Est .
Po E un�y Attor s
BO 1026 ..�
Kerr West, EL 3340
z--1o2s
BOA
Final Ord IITC] DC
AD7- GM..I6S
DCA AMENDED FINAL ORDER - DOAH CASE NO. 06-2449GM
FLORIDA YS CITIZENS COALITIONAND LAST STAND u
DEPARTMENT OF COMMUNITY A FFAIRS A ND MONR OE
COUNTY.
I. PROCEDURAL HISTORY
1. Petitioners challenged certain portions of the Monroe County Land Development
Regulations (LDR), some are identical to non challenged Comprehensive Plan
Policies.
2. Final Hearing was held February 6 -7, 2007 and March 14 -15, 2007.
3. Parties filed Proposed Recommended Orders.
4. Administrative Law Judge (ALJ) Issue a Recommended Order rejecting all but
three of the allegations raised in the Amended Petition.
5. Department of Community Affairs issued an Amended Final Order No. DCA 07-
GM -166A on January 2, 2008, accepting the ALJ's Recommended Order.
Q-1 II. ALJ's order Deleted 3 Portions of Monroe Coup LDRs
1. Deleted Section 9.5 -342 — (proposed Palm Hammock classification).
2. Deleted Section 9.5- 256(c)(1)a., Section 9.5.256(c)(3) and Section 9-
5.256(c)(3)b.2 (4 and 1 acre size criteria for hammocks -see pages 3 - 5).
3. Invalidated the Tier assignment of approximately 3 real estate parcels this is
where your work will be focused.
III. Habitat Evaluation Index (HEI) replaced by the Tier System
HEI previously used to score individual property's habitat characteristics for ROGO
1. ROGO used to include 18 evaluation criteria to assign ROGO points.
2. Based on the type and quality of habitat on an individual parcel analysis.
3. Qualified biologist conducted a site visit utilizing a complicated scoring system.
4. HEI difficult to apply — resulted in fragmentation and development of hammock.
Tier System adopted by Goal 205 Smart Growth in Comprehensive Plan
1. Initial phase included drafting and adoption of Tier maps.
2. Aerial photography and habitat identification of large areas to preserve.
3. Evolved into 3 categories of properties.
• Tier I — Conservation and Natural Area (10 ROGO points)
• Tier III — Infill Area to site development (30 ROGO points)
• Tier IIIA — Special Protection Area (20 ROGO points)
IV. Petitioners challenged the LDR size criteria for Tier I (>4ac) and IIIA( >lac)
Tier I - the ALJ found that:
1. The challenged Tier I LDR is consistent with and implements Comprehensive
Plan Policy 205.1.1.
2. However, this policy merely establishes the minimum standard which the County
must follow in establishing the Tier I boundary designation and does not bar a
smaller size threshold, if appropriate. Amend. F.O. p. 32
3. The four acre size Tier I limitation in LDR Section 9.5- 256(c)(1)a. should not be
validated.
4. The challenged parcels should be re- evaluated by the County after the Tier I
regulation is revised. Amend. F.O. p. 34
5. Tier Committee to re- evaluate 39 polygons
Tier IIIA - the ALJ found that:
1. The challenged Tier IIIA LDR is consistent with and implements Comprehensive
Plan Policy 205.1.1., Paragraph 4, identifying > 1 ac of hammock.
2. However, the Comprehensive Plan policy Y merel establishes the minimum
standard which the County must follow in establishing the Tier IIIA boundar
designation and does not bar a smaller size threshold, if appropriate. Amend. F.D.
p. 41.
3. The one acre size limitation in LDR Section 9.5- 256(c )(3) can not be sustained.
4. The challenged parcels should be re- evaluated by the Countv after the Tier IIIA
regulation is revised Amend. F.D. p. 42.
5. Tier Committee to re- evaluate 33 polygons.
V. Tier System Criteria Used to Evaluate "Upland Native Habitat" not Wetlands
1. The focus of the Tier system is on uplands consistent with Comprehensive Plan.
2. Comprehensive Plan Goal 205 -- the health and integrity of Monroe County's
native upland vegetation shall be protected. Amend. F.D. p. 29.
3. County to identify and map areas of upland vegetation to prepare Tier Maps.
4. County Comprehensive Plan Policy 205. 1.1 to establish criteria for upland native
vegetation and upland native habitat and does not refer to wetlands.
5. Wetlands protected in Comprehensive Plan --1 00% opens space -no development
6. Submerged lands or wetlands not part of larger natural area are not m a pp ed and
already protected in Comprehensive Plan Section 9.5-338. Amend. F.Q. p . 28 -31.
2
Ordinance No. 10 -2006
Amendments based upon Final order
Sec. 9.5 -256. Tier overlay district
(a) Purpose. The purpose of this Tier Overlay District is to designate geographical
areas outside of mainland Monroe County, excluding the Ocean Reef planned
development, into tiers to assign ROGO and NROGO points, determine the amount
of clearing of upland native vegetation that may be permitted, and prioritize lands for
public acquisition. The Tier boundaries are to be depicted on the Tier Overlay District
Map. Lands on Big Pine Key and No Name Key shall be delineated as Tier I, II, or
III. Lands in the remainder of unincorporated. Monroe County, excluding the Ocean
Reef planned development, shall be delineated as Tier I, III, and III -A (Special
Protection Area) .
(b) Tier boundaries. Tier boundaries shall follow property lines wherever possible,
except where a parcel line or distinct geographical feature, such as a canal or
roadway, may be more appropriate.
(c) Tier boundary criteria, excluding Big Pine Key and No Name Key: The Tier
boundaries are designated using aerial photography, data from the Florida s
Ke y
Carrying Capacity Study, the endangered species maps, property and permitting
information and field evaluation. The following criteria at a minimum are used to
evaluate upland habitats and designate boundaries between different Tier Overlays:
(1) Tier I boundaries shall be delineated to include one or more of the following
.
criteria and shall be designated Tier I:
A 14 %4%. %&X areas danip-ta4 An thp 10125 IR
"%0P.L_L&&4UY 001%, j L.7 ( 4 ) aer-es in area-.
b. Vacant lands, which can be restored to connect upland '
p native habitat patches
and reduce further fragmentation of upland native habitat.
c. Lands required to provide an undeveloped buffer, up to five hundred (500
feet in depth, if indicated as appropriate by special species studies, between
natural areas and development to reduce secondary impacts. Canals or
roadways, depending on width may form a boundary that removes the need
for the buffer or reduces its depth.
d. Lands designated for acquisition by public agencies for conservation and
natural resource protection.
e. Known locations of threatened and endangered species as defined in section
9.5 -4, identified on the Threatened and Endangered Plant and Animal Maps or
the Florida Keys Carrying Capacity Study maps, or identified in on -site
surveys.
3
f. Conservation, Native Area, Sparsely Settled, and Off -Shore Island Land Use
districts.
g. Areas with minimal existing development and infrastructure.
(2) Lands located outside of Big Pine Key and No Name Key that are not
designated Tier I shall be designated Tier III.
a. The following conditions shall constitute a break in pinelands or tropical
hardwood hammock for calculating the one -acre minimum patch size for
designation of Tier III -A boundaries:
1. U. S . Highway 1, canals and open water
2. Any disturbed pinelands or tropical hardwood hammock with invasive
coverage of forty (40) percent or more;
3. Property lines of developed lots or vacant lots with a ROGO allocation
award or an issued building permit, as of September 28, 2005, located
within a Land Use District that allows only one unit per lot; or
4. Property lines of developed parcels of less than 10,000 square feet in
area with a ROGOINROGO allocation award or issued building permit,
as of September 28, 2005, located within a Land Use District that allows
residential development of more than one dwelling unit per parcel/lot or
non - residential development.
b. Lots designated Tier III -A (Special Protection Areas) on the 11/29/05 maps
p
may petition the county for a rezoning to Tier III if the lot meets one of the
following criteria:
1. The lot will be served by a central sewer and the wastewater collection
system has an approved permit that was effective 3121106 to construct
the system on file from the Department of Environmental Protection; or
IZ7�L -tile h Fdaf u ry d a
Such lots may be granted a score of 30 points through an administrative
deternunation made by the County Biologist, the Director of Growth
Management and rendered to the Department of Community Affairs until such
time as the County sponsors a zoning map change to update the Tier Three
Overlay Zoning Map and it is approved by the Department of Community
Affairs.
c. Any hammock identified in the County's data base and aerial surveys as 1.00
to 1.09 acres in area shall be verified by survey prior to its designation as Tier
III -A A hammock that is deemed by survey and a field review by County
9,
Er
Biologists to fail the minimum size criteria shall have the Special Protection
Area designation removed from the subject parcel.
(c) Big Pine Key and No Name Key Tier Boundary Criteria: The Tier boundaries
shall be designated using the Big Pine Key and No Name Key Habitat Conservation
Plan (2005) and adopted Community Master Plan for Big Pine Key and No Name
Key.
(d) Tier overlay district map amendments: The Tier Overlay District Map may be
amended to reflect existing conditions in an area if warranted, because of drafting g or
data errors or regrowth of hammock. However, the clearing of tropical hardwood
hammock or pinelands that results in the reduction of the area of an upland native
habitat patch to less than the one -acre minimum shall not constitute sufficient grounds
for amending the designation of a Tier III -A area to Tier III. The Tier Overla Dzstrxct
Y
Map amendments shall be made pursuant to the procedures for map amendments to
this chapter. Unlawful conditions shall not be recognized when determining existing
. g g
conditions and regulatory requirements.
(e) Request for Tier I designation: Notwithstanding the provisions of Section -9.5-
511(d)2, any individual may submit an application to the planning department
containing substantial and competent documentation that an area meets the Tier I
criteria. Applications must be received by July 1 of each year on a form approved by
the director of planning for consideration by the special master at a public hearing
advertised at least fifteen (15) days prior to the hearing date. Said hearing by the
special master shall be held prior to November 1 of each year. The director of
planning will review the documentation and any other appropriate scientific
information and prepare an analysis report for the special master. The special master
will render a written opinion to the planning commission and board of county
commissioners either that the application meets the criteria for designating the lands
as Tier I or that the documentation is insufficient to warrant a map amendment. The
posting, advertising and review will follow the procedures in sec. 9.5- 511(d)(3)(4)
and (5)."
FINAL ORDER NO. DCA 07- GM-466A
SSTATIC of FLORIDA
DEPART14ENT OF COMMMI'TY "PAIRS
FLORIDA KEYS CITIZENS
COALITION. INC., and PROTECT
KEY WEST AND THE FLORIDA KEYS.
INC., d /b /a LAST STAND.
Petitioners,
vs.
DOAH Came No, 06- 244900
DEPARTMENT OF COMMUNITY
AFFAIRS and MONROE COUNTY.
Respondents,
1
AMMM FINAL ORDER
This matter was considered by the Secretary f h
y the
Department of Community Affairs following recei t of
.p a
Recommended Order issued by an Administrative Law Judge of the
Division of Administrative Hearings. A co of
copy the Recommended
Order is appended to this Final Order as Exhibit A.
Back round and SummaEK of Proceedin s
On June 16, 2006, the Department published notice of f'
ive
Final Orders determining that Ordinance Nos. 008-2006, 009-2006,
010 -2006. 011 -2005 and 013 -2006 adopted b Monroe County ounty in March
2005 were, with one minor exception, consistent with the
requirements of Chapter 380, Florida Statutes and nd were therefore
approved,
On July 7,
2005,
Florida Keys Citizens
Coalition,
Inc. and
Protect Key West
and
the Florida Keys, Inc,
d b
/ /a Last
Stand,
FINAL ORDER NO* LCA0 7 - GM-16 6A
filed a Petition for administrative hearing regarding t '
� g g he Notice.
,
This Petition was amended once prior to the final heari
r ng.
The final hearing was scheduled for September 12 - 15
2006.
At the request of the parties, the hearing was continued twice
wice
and then held in Miami, Florida on February 7 2007,
y' A
continued hearing was held on March 14 -15, 2007 in Tallaha
,
Florida. Upon consideration of the evidence and ost -h '
p Baring
filings, the Administrative Law Judge entered a Recommended Order
rejecting all but three (3) of the allegations raised in the
Amended Petition. The Order recommends that the Dep artment P enter
a final order approving Ordinance No. 008-2006, exce t f or the
deletion of Section 9.5 - 342; Ordinance No. 009 -2446. Ordinance
No. 414 -2446 except for Sections 9,5-256 Ma, 9-5-256(
and 9-5-256(c) ( 3 ) b . 2 , ; Ordinance No. 011-2006; and Ordi nce No ,
0 13-2006 except for the parcels identified in Fin dings of fact
ct
65, ao, 86, and 132.
Standard of Review of Recommended Order
The Administrative Procedure Act conte mplates that th
e
Department will adopt an Administrative Law Jud e' s Recommended
ende d
Order as the agency's Final Order in most proceedings. T
g o this
end. the Department has been granted only limited authority to
reject or modify findings of fact in a Recommended Order
Page 2 of 14
FINAL ORDER Me DCA07- GM -166A
Rejection or modification of conclusions of
law may not form the basis for rejection ection o
modification of findings r
ngs of fact. The agency
may not reject or modify the findings of fact
unless the agency first determines from a
review of the entire record, and states with
particularity in the order, that the findings
of fact were not based upon competent
substantial evidence or that the proceedings
s were
g based did not
on which the findings bas g
comply with essential requirements of law.
Fla, stat . S 120, 5 7 (1) (1) .
Absent a demonstration that the underlying administrative
y 9
proceeding departed from essential requirements of
law. Cal n
ALJ's findings cannot be rejected unless there is no
competent,
substantial evidence from which the findings could reasonably 9 e sonably be
inferred." Prysi v. Department of Health, 823 So.
2d 823. 825
(Fla. eat DCA 2002) (citations omitted) . In determining t o rtni n i ng whe t h e r
challenged findings are supported by the record in •
accord with
this standard, the Department may not rewei h the evidence idence or
judge the credibility of witnesses, both tasks being within g thin the
sole province of the Administrative Law Judge as the e fender of
fact, See Hei fet z v. Department of Bus. Re 4 75 S
• e. 2d 1277
1281 -83 (Fla. I" DCA 1985).
The Administrative Procedure Act also specifies the e manner
in which the Department is to address conclusions
of law in a
Recommended Order.
Page 3 of 14
FINAL ORDER NO* DCA 4 7 - GM- Z 5 6A
The agency in its final order may reject or
modify the conclusions of law over which it
has substantive jurisdiction and
interpretation of administrative rules over
which it has substantive jurisdiction. When
rejecting or modifying such conclusion of law
or interpretation of administrative rule, the
agency must state with particularity its
reasons for rejecting or modifying such
conclusion of law or interpretation of
administrative rule and must make a finding
that its substituted conclusion
scan of law or
interpretation of administrative rule is as
or more reasonable than that which was
rejected or modified.
Fla. Stat. 5 120.57(l) (1) ; DeWitt v. School Board of Sarasota
Count . 799 So. 2d 322 (Fla. 2nd DCA 2001) .
The label assigned a statement is not dispositive as to
whether it is a finding of fact or conclusion of law. See K
inns
v. Department of State, 501 So. 2d 1277 (Fla. 5 th DCA 1987).
Conclusions of law labeled as findings of fact, and findings
J ndin
labeled as conclusions, will be considered as a conclusion or
finding based upon the statement itself and not the Label
assigned.
Rulings ` on Except ions
The Recommended order, entered June 25, 2006, contains the
following Notice of Right to File Exceptions:
All parties have the right to submit written
exceptions within 15 da9 from the date of
this Recommended order. Any exceptions to
this Recommended order should be filed with
the a enc that will issue the Final order in
this matter. [emphasis added)
Page 4 of 14
FINAL ORDRR No . Y]cAO 7. (Mg_ 15 5A
This Notice accurately sets forth the timing nd f '
g cli ng
requirements for exceptions set forth in Section 1
Florida Statutes, and Rule 28-106.217, Florida Adminis trative
'
�.strative
Code. F ifteen ( 15) days from entry of the Recommended Order is
July 11, 2006. The agency that will issue the Final order -ion
this case is the Department of Community Affa
Petitioners fi ""Petitioner's Except ions to the
Recommended Order" on July 11, 2006. Respondents fil
"Respondents' Exceptions to the Recommended Order" on July II,
2006. Petitioners filed "petitioner's Response to Res ►
p Resp ondents -*
Exceptions to the Recommended Order" on July 0 2006.
y � Fi nally,
Respondents filed a "Joint Response to Petitioners' Exceptions to
the Recommended Order" on July 23, 2006. These Excep ptaons and
Responses were timely faded with the Department, the r
p oper
agency for such fi ling.
These Exceptions and that Response were considered
and the
Exceptions are ruled upon in turn below.
1. Petitioner Exception One: Wetlands - Findings of
Fact 55 -64
The Administrative Law Judge made findings about t the
exclusion of wetlands in the Tier I designation '
g criteria.
� The fifteen {25} days far
�' filing exceptions is not
automatically extended by virtue of the manner of service. See
Fla , Admin . Code re 2 8-106-217 ( 4 •
}� �► �o additional time shalt be
added to the time limits far filing excep tions
°r responses to
exceptions when service has
been made by mail.
Page 5 of 14
FINAL ORDER NO DCA07 - GM. .166A
Petitioner challenges this exclusion and req uests that certain
parcels be given a Tier I designation because the contain
wetlands. The court interpreted the criteria i the Plan and code
to not require the inclusion of wetlands. Petitioner
argues that
the uniform testimony of the experts that the
Keys ecosystem is a
mix of upland and wetland that work tog ether does yes not support
such a finding, The Administrative Law Judge found g o nd that the
criteria for Tier I designation are not vague and '
g do n ot include
wetland native upland habitats. He found the criteria
rza consistent
with the county's Comprehensive Plan which rovid
p es that the Plan
criteria refer to "upland native vegetation" , a .."upland
upland
native habitat" and does not refer to "u land wetlands." nds. The
court also found that wetlands were adequate) protected Y P t d in other
sections of the County's land development regulations. '
g s. A review
of the record validates existence of substantial competent
ent
evidence as the basis of the court's resp ective findings ndinge of fact
and conclusion of law. ( Comprehens ive P1 an Goal 205 '
5 . Cb� ect ive
245.4 and Policy 205 . i .1. Sections 9.5-256(c) 9.5-338, 9.5-
347(b), 9.5-347(c) and 9.5-348(d) of the County's y Land
Development Regulations.) Accordingly, Petitioners" s Exception
One is DENIED.
Page 6 of 14
FINAL ORDER NO. DCA 0 7 - GM -16 6A
2 , Petitioner Ex Two: Bio ical o i
neon - Findin of
Fact 71
Petitioner challenges the Administrative Law ►
�"udge s fending
to limit Tier I protections to known locations identified on
$pacified gaps and through on -site surveys. Petitioner over asks that
the County be directed to use the United States Fish and Wildlife
Service 2006 Biological opinion Maps of Potentia Sui table
Habitat for federally protected species. While acknowledging cknowledgzng that
these maps "would obviously be more desirable to
use the
Administrative Law Judge found that. at some '
point. the process
must come to an end and using constantly changing dat 9 g a and
gapping studies would result in there being finality 9� al ity to the
process. The court also found that the Tier I designation
criteria providing for inclusion of "known locations of
threatened and - endangered species" was consist '
ant with the
county's comprehensive Plan. Plan Objective 205. .
I is clear in
providing that one criterion for Tier I designation •
is similarly
"known locations of threatened and endangered s p e cies. " pecies . " Known
locations are where such species have actually been observed,
Conversely, the United States Fish and Wildlife '
Servioe Maps
proposed for use in Petitioner's complaint ma " •
p potentially
suitable habitat," In addition the new County Land Development
Page 7 0 f 14
FIN" ORDER N09 DCA - ON -1 5A
Regulations provide for a means to modify '
� Tier I map based on
new information, including that which mig g corns from the United
States Fish and Wildlife Service Map A re view p e iew of the record
validates existence of substantial, competent •
P rat e�`idence as the
basis of the court's findings. (Count Com •
y .preteens z ve Pl
Objective 205.1 and Section 9--5-256(e) o f
f the County' Land
Development Regulat ions.) Accordingly, Petit' .
Y loners Exception Two
is DENIED.
3. Respondents' Exception One: Tier I Natural.
Areas Above F our
Acres - Find in s of Fact 61
Pol icy 205.1.1 of the Monroe Count Comprehensive County p hensive Plan
establishes the criteria for the designation ion of •
g the Tiers. one o f
those criteria is "natural areas including ld
g and new growth
upland vegetated areas, above 4 acres in area."
The
Administrative Law Judge found that Pol 2 D 5
Y .1.2 merely sets
the `minimum' standard which the Count must
Y fol in
establishing the Tier I boundary designation and d does not bar a
smaller threshold, if appropriate*" Accordingly, g y. the court
directed re- evaluation of those parcels laced .
P in an incorrect
category due to the arbitrary four acre limitation. Respondent
argues that the four acre Tier I designation criterion was a
Policy decision of the County and is consist
tent with the
Principles for Guiding Development of the Florida
Ke ys Area of
Page 8 of 1
FINAL ORDRR NO* DCA0 7 - GK -16 5A
Critical State Concern, and that the parcels need ed not be re -
evaluated. The Admini st rat ive Law Jude found th a t the exist' ng
County Comprehensive Plan established a four 4
� ) acre threshold
as "one criteria for Tier I designation" of such natural areas.
Testimony substantiated that the relevant Plan Polic
cy did not
seek to limit Tier I designation to only ammocks e Y ceeding four
(4 acres in size. A review of the record validates '
tes existence of
substantial, competent evidence as the basis of the
court s
findings. (Plan Policy 245.1.1, Testimony Co V2
Y y at 247 - 250;
Jetton VIO at 1212 -1213, 1215 -1217; Trivette V5 at 558- .
5 5 � . Kr
V7 at 849-852 and Ca lvo V3 at 3 Accordi n 1 Respondents
J y. Po dents ■
Exception One is DENIED. .
4. Respondents' Excep tion Two: Special Protection Area SPA
Hardwood Hammock or Pinelands Above one Acre
As with the four acre criterion for Tier I. the
Administrative Law Judge found that the County's Comprehensive
p ve
Plan one acre criterion for SPA merely established a minimum
standard and that a smaller size threshold is not barred.
Respondent again argues that the County made a ol.ic decision
p y sion
and that Goal 2 05 of the Comprehensive Plan leaves no room
smaller size. The Administrative Law Judge found that
the one ( 1) acre threshold was arbitrary, was reputed b
P y science
and represented simply a number the County Commission "felt
Page 9 0 f 14
FINAL ORDBR NO . DCA07 - =. I6 5A
comfortable with." A review of the record vat. idates '
existence of
substantial, competent evidence as the basis of r
the court s
findings. (Plan Policy 205.1.1 Testimony alvo V -
Y 3 at 34Q 341.
Harrison VI O at 1351-1353; Conaway V2 at 186 Je to
t n V9 at 2376 -
1177, VZa at 1209 -1210, 1227 -1229, 1235.) Accordin
g
Respondents' Exception Two is DENIED.
5. Correction of Scrivener's Error
In paragraphs 61 through 65 of the Recommended Order the ALJ
discussed the four (4 ) acre criteria for Tier I designation
in
Section 9.5 -256 (c) (z) a. , and described his rationale for
recommending that the Department reject Section 9.5 -256 e 1
However, in the Recommendation section of the Recommended r
O der,
the ALJ recommended that the Department reject Section 9,5-
256 (c) (4 ) a . , which does not exist. This erroneous citation
was
not brought to the attention of the Department until after
issuance of the Final Order, and the erroneous citation was
repeated in the Final Order. The reference to 9.5-256(c) ' is
clearly a scrivener's error that can and should be corrected by
this Corrected Final Order,
Order
Upon review and consideration of the entire record of
this
proceeding, including the Recommended Order and exceptions '
P ons filed
by Petitioners and Respondents, it is hereby ordered ed as follow
Page 10 of 14
FINAL OR.DZR NO . D GA O 7 - € N.16 6A
1. The findings of fact and conclusions of l aw in the
Recommended order are adopted,
2. The Administrative Law Judge's recommendation
dation zs
accepted.
3. Monroe County Or dinance No. 008 for the
deletion of Section 9.5 -342; ordinance No. ..
09 2006 Ordinance
NO 020 -2006 except for Sections 9.5 -256 (c Z a.
� � � 9 5.256(c) (3)►
and 95. 256 (c) (3)b.2 . ; Ordinance No. 011-2006; .
6. and Ordinance No,
013 -2006 except for the parcels identified in F •
indings of fact
65, So 86, and 132, are hereby approved.
DONE AND ORDERED in Tallahassee. Florida.
' J A "4 Im
Thomas G.
VACC 9 6
Pelham. Secr
DEPARTMENT OF COMMUNITY AFFAIRS
2555 Shumard Oak Boulevard
Tallahassee, Florida 32399. -2100
Page II of 14
Final Order No DCA07- CAM -0166A
NOTICE OF RIGHTS
ANY PARTY TO THIS ORDER HAS THE RIGHT
REVIEW OF THE ORDER PURSUANT O SEEK JUDICIAL
ANT TO SECTION FLORIDA S TATU
AN D FLORIDA RULES OF APPELLATE PROCEDURE TES,
3 .034[k�� 41�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 TITOT I CE OF
APPEAL MUST BE SUBSTANTIALLY IN THE FOR
RULE OF APPELLATE PROLE M PRESCRIBED BY FLORIDA
PROCEDURE 9.9�� �a� . A COPY OF THE NOTICE
APPEAL MUST BE FILET] WITH THE APPROPRIATE CF
APPEAL AND MUST BE ACCOMPANIED ISTRICT COURT OF
TED BY THE FILING FEE SPECIFIED IN
SECTION 35-22 (3), FLOR IDA STATUTES
YOU NAIVE YOUR RIGHT TO JUDICIAL REVIEW
IF THE NOTICE OF
APPEAL IS NOT TIMELY FILED WITH TH THE AGENCY CLERK AND THE
APPROPRIATE DISTRICT COURT OF APPEAL,
MEDIATION UNDER SECTION 120-573, FLA . S
AVAILABLE WITH RESPECT TO THE TAT . ► I S NOT
ISSUES SITES RESOLVED BY THIS ORDER.
Page 12 Of 14
Final Order No DCA07.GM.166A
CERTIFICATE OF FILING AM SERVICE
I HEREBY CERTIFY that the original of the a foregoing has been
filed with the undersigned d Agency Clerk of the Department o
p f
Community Affairs, and that true and
furnf shed to the persons i correct copies have b een
listed below in the manner describ
this day of er, . ed. on
P u 3 a Ford
gency Clerk
Hand Delivery
Richard E. Shine, Esq,
Assistant General Counsel.
Department of Community Affairs
2.955 Shumard oak 131vd .
Tallahassee, FL 32333 -2100
Inter - Agency Mail
Donald R. Alexander
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1234 Apalachee Parkway
Tallahassee, FL 32333 --3050
By U. s . Nai1
Richard J. Grosso, Esq.
Everglades Law Center, Inc.
Nova Southeastern University
3305 College Avenue
Fort Lauderdale, FL 33314-7721
Robert N. Hartsell, Esq.
Everglades Law Center. Inc.
818 U. So Highway 1 Suite 8
North Palm Beach, FL 33408 -3831
Page 13 of 14
r
r
t
Final Order No DCA07 - GM -166A
]avid L. Jordan, Esq.
Greenberg Traurig, P.A.
PG Sox 1838
Tallahassee, FL 32302 -1838
Robert Shlllinger, Esq.
Monroe County Attorney's office
PG Sox 1026
Key hest, FL 33401-1026
Page 14 of 14
icy . .
ft
i lira r �.i.r��e�
ivlonr e , County shall d iscourag e , develop- is proposed 01, Off5h0 is lands b methods Includ bul is
Pot fi to, dei o ffs h o re is a s Tier I Viand 191-5.005 C ) ¢
s A i
i
Poll is 103.2.1
Monroe- County shall imple methods in b Ut nit f invited to desiEnating k ha it It the
SChaLI S SVVa I'i( )i 11U t te M a s 'Til_;�r f. 19-1 - 0 1 3 9 J-5.0
Policy 105.2.1
Monroe county shall designate all lands outside of mainland Monroe county, except for the
Ocean Reef planned development, into three general categories for purposes of its Land
Acquisition Program and smart growth initiatives in accordance with the criteria in Policy
205.1.1. These three categories are: Transition and Sprawl Reduction
Area (Tier i l) on Big Pine Key and No Name Key only; and Il .The purposes,
general characteristics, and growth management approaches associated with each tier are as
follows:
_ ): Any defined gecgr a rea wh ere 1 11 or a sig i
Na Area - p e r I . f. r k i
the land are is characterized as e vironmeritally° sensitive b the policies, of tWs Plar_
and applicable habbitat conservation plan, is to be designated as a Natural Area. New
development on v acant land is to be severely restricted a nd private owned v acan t
lands a to be acq uired or d righ r tilred for resou cons e ry 'ticn an d
purposes., passive r ��� cses. Ncwever, th does not pr ciud prov isions c
l iifrasif,ucture for existing development. 'within the Natural Area des g natien a typ '
� ound Wa wilh the acquisitio bou ndaries of federal and state resourc conse rvation
an p a r k, a yea i i s o la te d pl s ' s a priva - e ne d v a
and wi th se;nsit � e t � i a E -� res eye side tl � se a uis n . ea ,
, nfili Area (Tier 1 t 1 ). Any defined geographic area, where a sig nificant portion of land
Brea is not characterized as env ironmenta l ly sensitive as de fined by th Plan, excep
for dispersed and isolated fragments of en iron nta f ly s w sitive lands of less than
OUr acres in area, w here existing platted subdivisions are stabstantiafly developed,
erved by complete in rastructu-re to i Ri s, and within close proximity to establishes:
Horan ercia] areas, or where a concentration of non�reside ntial uses exists, is to be
desi as an Infill Area. New development and rede lopment are to be hi
our , except within tropical hardwood hammock or pineland patches of an
acre or more in area, where development is to be discoura Within an In ill Area
re t foundi platted subdivisions with 5.0 percent or more developied lots.
situated in areas with few sensitive environmental features full ran of avai'Jabla
public infrastructure in terms of paved roads, potable water, and electricit and
r,oncentrations of commercial and other non-residential use within close proximit
In some [nfill Areas, a mix of non-residenfial and high-densit residential uses
(g enerall y 8 units or more per acre ma also be found that form a Communit
Center.
Polic 205.1.1
The Count shall establish the followin criteria at a minimum to use when desi Tiers.- [ 9j-
5.013(2)(c)9]
L11d. ated OUIS�de of Bic Pfi�ie Ke !_ind No Nlame I(e shall be desi as Tier 1 based oo
0 4 .[-" k- (7
Natui-al areas kicluditi, old and nee ,% A i -et ['3
9 g rowth Li ,nd native ve., at cl
;jreas, above 4 acres, in a',reiza,
A Vacant landwhich can be restored to connect uplanid natil,.Te habitat:
patches ands reduce further fra of upliand native habitat,
Lands re to provide an unidievelopled bUffer, lip to 500 fevt 14A
depth, if indicated b appropriate special species studies, bet-k-%yeen natural areas and
i1evelopment to reduce secondar Jjjj Cal or ro . y s, d e p le n d i ri a! n s i 7 e m, J
form a lioundar that riernoves the need for the bUffCl- or reduces its depth.1
Lands desi for ac b public a for consp-rVation a.nd nat1jrC-:i1
P-csource protection.
K o -at -irr)ed and endan species.
,now r, t 0 r is o f t I e�ate
773 1-Inds desi as full -er vation and Residential Conserllat-ion on
ik
the 1,1"uhire Lcind U,.%-,e Map nr�vithin a buffer/rcistoration area. as a
_s 1 1, a P
. ruiin�im- I existino, dcove1o acid infrastructure,
4
Y Ji;U
M U.1
n r i c.t e- I a n
I Lands located outside of Bi Pine Ke and No Narbe K-e th'a't are ftot desi Tier I sh-all be
desi Tier 11-L,
4. Desi Tier III lands located outside of Bi Pine Key and No Name Ke with tropical hardwood
hammock or pinelands of one acre or g reater in area shall be desi as Special Protection Areas.
5. Lands within the Ocean Reef planned development shall be excluded from an Tier designation.
FINAL ORDER No. DCAB?- GW166
Page 10 of 13
Order
Upon review and consideration of the entire record of this proceeding, including the
Recommended Order and exceptions filed by Petitioners and Respondents, it is hereby
ordered as follows:
1. The findings •of fact and conclusions of law in the Recommended Order are
adopted.
2. The Administrative Law Judge's recommendation is accepted
3. Monroe County Ordinance No. 008 -2006 except for the deletion . p of Section 9.5
342; Ordinance No. 009 -2006; Ordinance No. 010 -2006 except for Sections 9.5 -256 (c)
(4)a., 9 -5.256 (c) (3), and 9- 5.256(c (3) b.2.; Ordinance No. � - ' ) 11 2046, and Ord
No. 013 -2006 except for the parcels identified in Findings of
g fact 65, 80, 86, and 132,
are hereby approved.
DONE AND ORDERED in Tallahassee, Florida.
** *Assume typo because ordinance does not include a Section 9.5 -256 (c) (4)a.
Should be Section 9.5 -256 (c) (I)a.
W1,
Ordinance No, 1 0-2006
Amendments based upon Final Order
See. 9.5256. Tier overlay district
(a) Purpose: The purpose of this Tier Overlay istrict is to des' -
mainland Monroe y agnate geographical areas outside of
oe County, excluding the Ocean Reef planned development, i -
R�(] and NRO� rots deterr�nine into tiers to assign
po • � the amount of clearing of upland native vegetatio
be putted., and priorit�ze lands for public • .. g that may
' District acquisition. The 'Tier boundaries are to be depicted on
the Tier Overlay District Map. Lands on Big Pine Key nd No N .
Tier I, II or III. Lan remainder Name Ivey shall be delineated as
Lands in the remainder of unincorporated Monroe Count exc
men shat tY3 lud�ng the Ocean
Reef planned develo
p t l be delineated as Tier I, III, and III -A ial Protec 111-A ( l tan Area).
(b) Tier boundaries: Tier boundaries shall follow m in •
parcel line p lines wherever possible, except where a
p or distinct geographical feature, such as a canal or roadway, •
�� � be more appropriate.
(c) Tier bowu4vy crileria, excluding Br` and Na - .
aced using � pine Key dame �e�: The Tier bounda are
desi
gn g aerial photography, from the Florida Keys in •
endangered. s ies ma s ro Y ' g �apac�ty Study,the
. . pec , ` maps, property and permitting information and field evaluation. The followi
criteria at a minimum are used to evaluate upland habitats and de en
different Tier Overlays: designate boundaries between
(x) Tier I boundaries shall be delineated to include one arm • •
be designated TI ore of the following criteria and shall
gna Tier I:
. ..
b. Vacant lands, which can be restored to connect upland .
Rather P native habitat patches and reduce
entation of upland native habitat.
c. Lands required to provide an undeveloped buffer, to five (500) - .
sup hundred feet �n depth, If
indicated as appropriate ate by special species studies, between natural areas and development impacts.
to reduce secondary p teals or roadways, depending an
g width may form a
boundary that removes the need for the buffer or reduces its de
d Lands deli depth.
designated far acquisition by public agencies for conservation and
protection. resource
e. Known locations of threatened and endangered species -
identified on the g s as defined in section 9.�-�,
'Threatened and Endangered Plant and Animal M or
Carrying �a ci Stu ma • � the Florida Keys
Pa tY dy ma or identified In on -site surveys.
f. Conservation, Native Area, Sparsely Settled, and Off-
. • Shore Island Land Use districts.
g. Areas with minimal existing development and infrastructure.
(2) Lands located outside of Big Pine Ivey and No Name K .
be designated Tier III.
Ke that are not designated Tier I shall
• aE
0611- V~j TV
Wood hanamiApk at n:nj%i&ndc_
a. The fallowing conditions shall constitute a brew in p� nelands or tropical hardw
or calculating the one -acre mi
hammock for patch
bounces: Pa see far designation of Fier III -
1. U.S. Highway 1, canals and open water
2. Any disturbed pinelands or tropical hardwood •
P ood ha�macic with invasive cove a of
fa m' (40) Percent or snore;
3. Property lines of developed lots or vacant -
' lots with a 1�4CO allocation awar or an
issued building permit, as of September 28, 2105 to
one � cased within a sand Use district
that allows only unit per lot; or
4. Property lines of developed arcels of less
�� P s than x 09 square feet in area with a
�� allocation award or issued buy .
building permit, as of September 28
within a Land Use District that allows reside '
2���, located
than one dwelling unit r res development of more
pa rceUlot or non - residential develo mend
P
b. Low designated Tier III -A (Special Pro . Protection Areas) on the 11/29/05 s M ay .
the county for a rezoning to Tier III if the lot y Pet�taon
meets one of the following cr�ter �a:
I. The lot will b e served by a central sewer and
the wastewater collection system has an
approved permit that was effective 3/21/06 to co
Department of Environmental �� the system on file ft�om the
nmental Protection; or
WV WMEW
OR@ that . . .
Such lots may be granted a score of 3v i -
the Po nts through an adrri�rusfra#�ve determination Y County Biolag�st, the Director of m ade
b Dep artment of � �anagernent and rendered to the
�
eP Community Affairs until such time as the •
change to the Tier. . County sponsors a zoning ma
�e Three Overlay Zoning P
of Community #fa' g aP d �t �s approved by thepart�n
� ors.
c. Any hammock identified in the Coun 's data b '
in area � . � base and aerial surveys as 1.00 to 1.Q9 ac
l be verified by survey prior to its desi res
and a field o n as Tier III -A A hammock th -
deemed by survey eld review by County Biologists to fail the ' ' . Is
shall have the Special Protection Area deal rninnnum see �teria
designation removed from the subject Parcel.
(c) Big Pine fey cry' 11 to 11 Tame Ke
designated �' � Chteria:
adopted Community The Tier J)0 es
using the Big Pine Key and No Name K shall be
� y Habitat Conservation Plan (2005) and
tY r Plan for ��g Pine Ke and �o �
Y ant Key.
(d) Fier avert d maP amendmerrts: - -
' • • The Tier overlay D IVI may be am
mg conditions �n an area if warranted because � y ended t
reflect exist � use of drafting or data errors or regmwth v
the clearing of trOPical hardwood hammock
hammock. However
reduction of the area of an ock or p�nelands that results i th
upland native habitat patch to less than the o . .
constitute sufficient grounds for amending he des' on n e
- acre minimum shall not
h
Overlay istrict Iota g desig nation of a Tier III -A area to Tier III. The Tier
y P amendments shall be made pursuant #� the
to this chapter. Unlawful conditions hen deterProcedures for map amendments
ns shall not be recognized minn conditions
and regulatory requirements, ig existing conditions
fie) Request far Fier I �esrgtumtrar�: l�totwi � . .
��
individ thstand�ng the provisions of Section -.-5
ual may submit an application to the l 11�d)2, any
planning department containing substantial and
7
Chapter 130 LAND USE DISTRICTS
ARTICLE IV OVERLAY DISTRICTS
Sec. 130 -127. Public facilities use overlay (PF).
Sec. 130 -127. Public facilities use overlay (PF).
Any use identified in the Monroe County Year 2010 Comprehensive Plan as Public Facilities PF and further
identified on the Monroe County Future Land Use Map with a designation of "PF" may be overlaid on an new
or existing land use district. The use within the overlay istrict shall Y
y all be subject to all land development
regulations of the underlying district with the exception of those regulations controlling density nd intensity.
Y
The use within the overlay district shall be developed with the following density and intensity regulations:
9
Allocated Density Maximum Net Density Maximum Intensity
Per Acre Per Buildable Acre Floor Area Ratio
0 du NIA 0.30
0 rooms /spaces NIA
(Code 1979, § 9.5- 257.4; Ord. No. 27 -2001, § 1 )
Sec. 130 -128. Tavernier Creek to Mile Marker 97 U.S. Highway 1 corridor district overlay.
Y
(a) Purpose. The purpose of the Tavernier creek to Mile Marker 97 U.S. Highway corridor district overla
y
is to implement the policies of the comprehensive plan and Tavernier Creek to Mile Marker 97 Livable
CommuniKeys Master Plan by protection of existing resources and enhancement of future develop-
ment.
(b) Application. The Tavernier Creek to Mile Marker 97 U.S. Highway 1 Corridor Development Standards
and Guidelines are hereby adopted by reference and declared a part of this chapter. Within the overlay
district, as designated on the Tavernier Creek to Mile Marker 97 U.S. Hi
ghway 1 District Overlay Map,
uses permitted as of right and uses requiring a minor or major conditional use permit shall be reviewed
based upon the Tavernier Creek to Mile Marker 97 U.S. Highway 1 Corridor Development Standards
and Guidelines and approved if found in compliance with these standards and guidelines.
(c) Amendment. The Tavernier Creek to Mile Marker 97 U.S. Highway 1 Corridor Development Standards
s
and Guidelines may be amended by resolution of the board of county commissioners upon recom-
mendation of the planning commission and the director of planning.
(Code 1979, § 9.5- 260.2; Ord. No. 020 -2005, § 3)
Sec. 130 -129. Tavernier historic district overlay.
(a) Purpose. The purpose of the Tavernier historic district overlay is to implement the olicies of the
e
comprehensive plan and Tavernier Creek to Mile Marker 97 Livable CommuniKeys Master Plan to
protect the historic resources of the community and to encourage development that is sensitive and
compatible with the historic character of the Tavernier historic district as identified through the Tavernier
Creek to Mile Marker 97 Livable CommuniKeys Master Plan.
(b) Application. The Tavernier Historic District Preservation Guidelines are hereby adopted b reference
Y P y
and declared part of this chapter. Within the overlay district, the county historic preservation commis-
sion shall review new development, remodeling or redevelopment of uses permitted as of right and
uses requiring a minor or major conditional use permit, 9
1 p t, based on the Tavernier Historic District
Preservation Guidelines.
(c) Amendment The Tavernier Historic District Preservation Guidelines may be amended b resolution Y y on of
the board of county commissioners upon recommendation of the planning commission and the director
of planning.
(Code 1 979, § 9.5- 260.1; Ord. No. 019 -2005, § 3)
Sec. 130 -130. Tier overlay district.
(a) Purpose. The purpose of the tier overlay district is to designate geographical areas outside of
the
mainland of the county, excluding the Ocean Reef planned development, into tiers to assign ROGO
nd NROGO points, determine the amount of clearing
a Ing of upland native vegetation that may be
LDC 130:74
MONROE COUNTY LAND DEVELOPMENT Su
pp No. 4
Chapter 130 LAND USE DISTRICTS
ARTICLE IV OVERLAY DISTRICTS
Sec. 130 -130. Tier overlay district.
(a) Purpose.
permitted, and prioritize lands for public acquisition. The tier boundaries are to be depicted on the e tier
overlay district map. Lands on Big Pine Key and No Name Key shall be delineated as tier 1, 11, or Ill.
Lands in the remainder of the unincorporated county, excluding the Ocean Reef planned development,
P ,
shall be delineated as tier 1, 111, and 111 -A (special protection area).
LDC130:74.1
Supp' No. 4 LAND USE DISTRICTS
Chapter 130 LAND USE DISTRICTS
ARTICLE IV OVERLAY DISTRICTS
Sec. 130 -130. Tier overlay district.
(c) Tier boundary criteria, excluding Big Pine Key and No Name Key.
(b) Tier boundaries. Tier boundaries shall follow property lines wherever possible, except where a parcel
line or distinct geographical feature, such as a canal or roadway, may be more appropriate.
(c) Tier boundary criteria, excluding Big Pine Key and No Name Key. The tier boundaries are designated
using aerial photography, data from the Florida Keys Carrying Capacity Study, the endangered species
maps, property and permitting information and field evaluation. The following criteria, at a minimum,
are used to evaluate upland habitats and designate boundaries between different tier overlays:
(1) Tier I boundaries shall be delineated to include one or more of the following criteria and shall
be designated tier I:
a. Vacant lands which can be restored to connect upland native habitat patches and
reduce further fragmentation of upland native habitat.
b. Lands required to provide an undeveloped buffer, up to 500 feet in depth, if indicated
as appropriate by special species studies, between natural areas and development to
reduce secondary impacts. Canals or roadways, depending on width, may form a
boundary that removes the need for the buffer or reduces its depth.
C. Lands designated for acquisition by public agencies for conservation and natural
resource protection.
d. Known locations of threatened and endangered species, as defined in section 101 -1,
identified on the threatened and endangered plant and animal maps or the Florida
Keys Carrying Capacity Study maps, or identified in on -site surveys.
e. Conservation, native area, sparsely settled, and offshore island land use districts.
f. Areas with '
minimal existing development and Infrastructure.
( Lands located outside of Big Pine Key and No Name Key that are not designated tier I shall be
designated tier Ill.
a. The following conditions shall constitute a break in pinelands or tropical hardwood
hammock for calculating the one -acre minimum patch size for designation of tier 111 -A
boundaries:
1. U.S. Highway 1, canals and open water;
2. Any disturbed pinelands or tropical hardwood hammock with invasive cover-
age of 40 percent or more;
3. Property lines of developed lots or vacant lots with a ROGO allocation award
or an issued building permit, as of September 28, 2005, located within a Land
Use District that allows only one unit per lot; or
4. Property lines of developed parcels of less than 10,000 square feet in area
with a ROGOINROGO allocation award or issued building permit, as of
September 28, 2005, located within a Land Use District that allows residential
development of more than one dwelling unit per parcel /lot or non - residential
development.
b. Lots designated tier III -A (Special Protection Areas) on the November 29, 2005 maps
may petition the county for a rezoning to tier Ill if the lot meets one of the following
criteria:
1. The lot will be served by a central sewer and the wastewater collection system
has an approved permit that was effective March 21, 2008 to construct the
system on file from the Department of Environmental Protection; or
Such lots may be granted a score of 30 points through an administrative determination
made by the county biologist, the director of growth management and rendered to the
LDC130:75
Supp. No. 3 LAND USE DISTRICTS
Chapter 130 LAND USE DISTRICTS
ARTICLE IV OVERLAY DISTRICTS
Sec. 1 30- 1 30. Tier overlay district.
(c) Tier boundary criteria, excluding Big Pine Key and No Name Key.
department of community affairs until such time as the county sponsors a zoning a `
9 P
change to update the Tier Three overlay Zoning Map and it is approved by the
department of community affairs.
C. Any hammock identified in the county's data base and aerial surveys as 1.00 to 1.09
acres in area shall be verified by survey prior to its designation as tier III -A. A hammock
that is deemed by survey and a field review by county biologists to fail the minimum
size criteria shall have the Special Protection Area designation removed from the
subject parcel.
(d) Big Pine Key and No Name Key tier boundary criteria. The tier boundaries shall be designated using
the Big Pine Key and No Name Key Habitat Conservation Plan (2005) and the adopted community
master plan for Big Pine Key and No Name Key.
(e) Tier overlay district map amendments. The tier overlay district map maybe amended to reflect existing
conditions in an area if warranted because of drafting or data errors or regrowth of hammock. However,
the clearing of tropical hardwood hammock or pinelands that results in the reduction of the area of an
upland native habitat patch to less than the one -acre minimum shall not constitute sufficient grounds for
amending the designation of a tier III -A area to tier III. The tier overlay district map amendments shall
be made pursuant to the procedures for map amendments to this chapter. Unlawful conditions shall not
be recognized when determining existing conditions and regulatory requirements.
(� Request for tier /designation. Notwithstanding the provisions of section 102- 158(d)(2), any individual
may submit an application to the planning department containing substantial and competent documen-
tation that an area meets the tier I criteria. Applications must be received by July 1 of each year on a
form approved by the director of planning for consideration by the special magistrate at a public hearing
advertised at least 15 days prior to the hearing date. Said hearing by the special magistrate shall be /
held prior to November 1 of each year The director of planning will review the documentation and any
other appropriate scientific information and prepare an analysis report for the special magistrate. The
special magistrate will render a written opinion to the planning commission and board of county
commissioners either that the application meets the criteria for designating the lands as tier I or that the
documentation is insufficient to warrant a map amendment. The posting, advertising and review will
follow the procedures in section 102- 158(d)(3), (d)(4) and (d)(5).
(Code 1979, § 9.5 -256; Ord. No. 029 -2005, § 2; Ord. No. 10 -2006; Res. No. 205 -2009, § 1; Res. No. 089 -2010,
§ 2)
Editor's note —Ord. No. 10 -2006 appears as modified through negotiation with the state department of
community affairs.
Secs. 130 - 131 - 130 -155. Reserved.
ARTICLE V. LAND USE INTENSITIES
Sec. 130 -156, Standards.
(a) No structure or land in the county shall hereafter be developed, used or occupied at an intensity or
density greater than the standards set out in this article. No density shall be allocated for any land
designated as mangroves on the existing conditions map.
(b) The density and intensity provisions set out in this section are intended to be applied cumulatively so
that no development shall exceed the total density limits of this article. For example, if a development
includes both residential and commercial development, the total gross amount of development shall
not exceed the cumulated permitted intensity of the parcel proposed for development. The following
illustrates the intent of this section:
t �- Developer owns a one -acre parcel of land in the mixed use (MU) district. The developer may build one
dwelling unit, or 15 hotel rooms or 15,000 square feet of office space; or he may develop any
combination of these uses, provided that he does not exceed the total density. He could build 5,000
L DC 130:76
MONROE COUNTY LAND DEVELOPMENT Supp. No. 3
BOCC MARCH 17. 20t 0
RESOLUTION No.. 0 -2010
A RESOLUTION BY THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA CORRECTING THE
CODIFICATION OF ORDINANCE 10 -2006 AS SET FORTH IN THE
FINAL ORDER OF THE SECRETARY OF THE DEPARTMENT OF
COMMUNITY AFFAIRS; PROVIDING FOR TRANSMITTAL TO
MUNICIPAL CODE CORPORATION; PROVIDING FOR
TRANSMITTAL TO THE DEPARTMENT OF COMMUNITY
AFFAIRS
WHEREAS, the Board of County Commissioners of Monroe County, Florida, makes the following
Findings of Fact and Conclusions of Law:
1. Monroe County adopted Ordinances 008 -2006, Ordinance 009 -2005, Ordinance 010 -2006, and
Ordinance 011 -2006 on March 15, 2006 and adopted Ordinance 013 -2006 on March 21, 2005.
2. These ordinances which adopted Tier Maps and the Tier System for evaluating environmental
Sensitivity of land were the subject of an administrative appeal in Case Number DCA07- GM -166A.
3. The Final Order in Case Number DCA07- GM -166A dated September 26, 2007 and the Amended
Final Order correcting a Scrivener's Error in Paragraph 3 of the Final Order, signed by Department
of Community Affairs Secretary Thomas Pelham and filed January 8, 2008, upheld the challenged
ordinances as follows:
" 3. Monroe County Ordinance No. 008 - -2006, except for the deletion of Section
9.5 -342; Ordinance No. 009- 2006;Ordinance No. 010 -2006 except for Sections
9.5-256(c)la., 9.5- 256(c)(3) [sic), and 9.5- 256(c)(3)b.2 (sic].; Ordinance No.
011 -2006; and Ordinance No. 013 -2006 except for the parcels identified in
Findings of Fact 65, 80, 86 and 132, are hereby approved."
4. In codifying this order in reference to Ordinance 10 -2006, Monroe County deleted Section 9.5-
255(c) La. as directed and all portions of Section 9.5- 256(c)(3) including Section 9.5- 256(c)(3)b.2.
which was specifically mentioned.
5. Since the codification, the attorneys and staff of the Department of Community Affairs (DCA)
and the Growth Management Division of Monroe County have revisited the Final Order and the
intent of the Administrative Law Judge and the Secretary of DCA with respect to Section 9.5 -256.
6. The written findings in the Recommended Order by the Administrative Law Judge as explained
in a letter from Shaw P. Stiller, General Counsel for the DCA, attached as Exhibit A, indicate that
the striking of certain provisions of Ordinance No. 10 -2006 when drafted to be codified by Monroe
County were inconsistent with the Final and Amended Final Orders and the recommendations of
the Administrative Law Judge. A copy of the amended ordinance based upon the Final Order for
Ordinance 10 -2006 was included in Exhibit A with the aforementioned letter from the DCA
General Counsel.
7. It is the intent of the Board of County Commissioners to carry out the intent of the
.administrative Law Judge in his Recommended Final Order and the intent of the Secretary of the
Department of Community Affairs in regard to the Amended Final Order,
8. Only the sentence immediately following the section enumerated 9.5- 256(c) should have been
stricken, along with section 9.5- 256 (c)l33b.2. but not the entire paragraph enumerated 9.5- 256(c),
which was comprised of several other paragraphs of text.
BOCC MARCH 17, 2010
9. The prior submission of the ordinance to be codified by deleting all of subsection 9.5- 256(c)
constituted a drafting error.
10. Through Ordinance 01 -2009, section 9.5 -256 was renumbered as section 130 -130 as part of the
recodification process of the entire County Code.
Now, THEREFORE BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1. _ The preceding Findings of Fact and Conclusions of Law are incorporated herein as
though fully set forth.
SISUgg ordinance No. 10 -2006 shall be read in accordance with, and consistent with, the
provisions of the Department of Community Affairs' Amended Final order in Case No. DCA07-
GM- 166A and shalt be codified as shown on Exhibit E which is identical to the ordinance provided
in Exhibit A to this resolution, which is the letter from the Department of Community Affairs
General Counsel dated February 9, 2010.
Section 3 This codification is consistent with the intent and findings of the Administrative Law
Judge in the Recommended Order dated June 26, 2007 in Case No. DCA07 -GM- l 66A.
Sec i . This codification is consistent with the interpretation by the Department of Community
Affairs of its Amended Final Order in Case No. DCA07- GM -166A.
Section 5. A copy of Exhibit B shall be sent with this Resolution to Municipal Code Corporation
for codification.
Sec fi. Municipal Code Corporation is directed to include this resolution number as a footnote
to section 130 -130 to preserve the legislative history for the text.
Section 7. The Planning Director shall send a certified copy of this Resolution to the Department
of Community Affairs.
PASSED AND ADOPTED, by the Board of County Commissioners of Monroe County, Florida
at a regular meeting of said Board on the 1�7
7th of March , 2010.
R`�'
P%a
C") >
Mayor Sylvia J. Murphy
Yes
Mayor Pro Te m Heather Carruthers
Yes
► V1 -�T
Commissioner Mario DiGenaro
Yes
7 -�.-
Commissioner George Neugent
Yes"
Commissioner Kim Wigington
Yes
... n
BOARD OF COUNTY COMMISSIONERS OF MONRO COUNT r RIDA
w
By.
46 ayor 5fi
J. Murphy
( SEAL)
ATT T: Dann L. Kol ha e, CLER
• gHADE r
�y. .
F Y
Deputy Clerk 1
D
r�
v
0
M
n
CD
v
1
t IT A
Page 1 of 6
STATE O F FLORID
DEPARTMENT OF COMMUNITY AFFAIRS
' Dedicated to making Florida a better place to ca!! home
CHARM CW8T THOIlA$ a PELHIU/
cav+rm Aceet.M
February 9, 2010
Ms. Christine Hurley, Director of Growth Management
Monroe County
2798 Overseas Highway
Marathon, Florida 33050
Re: Tier Overlay District text in the Land Development Regulations
Deer Ms, Hurley:
In preparation for the first meeting with the Fier Designation Review Committee
(TDRC), the Department of Community Affairs (Departrne nt) has noticed that the County's
1.. codification of Tier regulations, Section 136 -130 (previously numbered 9.5 456) has several
ornisawma The County has inadvertently deleted portions of Section 1 that wens upheld
by the Administrative: Law Judge and Final Order Igo. DCA07 -CM -1 66A = .
The TDRC will utilize the criteria fr�oen Section 1 30-130 to evaluate parcels and to make
recommendations on Tier designations. Therefore, the Department requests that the County
revise Section 130 - 130 (previously numbered 9.5456) of the land development regulations io
� - reflect the Final Order and Administrative Law Judge's recommendation. --
In the Department's review of the Final order and Administrative Law Judge's
recommendation, we have identified the following corrections:
1) Monroe County deleted Section 9.5- 256(cx3) a.1.2. 3. and 4., that provides conditions
which constitute a break in penelands or tropical hardwood hammock For calculating the one
acm minimum patch size for designation as a Tier f UA (SP 4). The Final Order did not
identify this section for deletion. Additionally, the Recommended Carder for Case No. 06-
2"9GM, states, in Finding of Fact paragraph 89, that
` Mom= County Ordin um No. 00&2006 e.YCept For the dele=ian of Section 9.5 - 342; Ordinance loo. O(W2o%;
Ordinume Nm 0102006 except for Sections 9.5 -256 (c) (1) a., 9 -5.255 (c) (3), and 9.5.256(c) (3) b.2.; arWneace
No. 41 I -2006; and Orders No. 013 -2406 except for dw parcels identified in findings of fact 65, 80. K6, and 1 32.
are hereby approved.
2SS3 SHVMAMD OAK ■OULEvAno TALLAH+SSEE, FL 3239 , 9-210o
aSo•488 t p= aso -92 f -ale t If) websita: w3m
j
ccm"w19nr FW"NG � �! q� � � FUMUGA COMM Mine fluff ree•n= l" g lobala w
"OUS++e A040 aMmr OWf or"rr #".qa ,, qs C0 jjja40 ads 14
�SIBIT A
Page 2 of 6
Ms. Christine Hurley, Director of Growth Managarnent
February 9, 2010
Page 2
raking invasive infestation into account in determining whether a patch is largw
enough to qualify as a SPA is consistent with flee FKCSS, which states
Successful
restoration of lands to crieate large patches of terrestrial habitats and
to reestablish connectivity seem improbable. Restoration would require aw
conversion of large developed areas to native habitat, a goal that would fare
legal constraints, as well w high casts, uncenam probability of success. and a
long tim eframe for execution...
Smite tke resources to address these issues are not in jrroney is teeter sptorrt
acquiring larger patches in Tier I than in trying to restore the smaller patches
with exotic Vegetation_
2) Monroe County deleted Section 9.5- 256(cX3) b. l ., that provides owners of lots designated
as Tier MA (SPA) an opportunity to petition for a rezoning to Tier lu if the lot will be served
by a central sewer. The Final Order did not identify this section for deletion. Additionally,
the Recommended Order for Can No. 06-2449GM, states, in landing of Fact paragraph 91,
that
M his condlelon for removal from SPA! applies only In the .service area of the
North Key Largo sewage treatment plant. The County and Dgnrimenl
determined that development should be encourged In the area served by the
North Key Largo sewer plant, evert though (habitat Oar otherwise qualOrd for
designation as SPA wdsted is that service area. The Principles for Guiding
Dew1og pment require the County and Department to improve n earshore water
quality, and the best way to accomplish this goal is to construct central serer
systems to replace septic tams. The Work Program adapted by tUAdministration
Commits lion requires the County to fund and construct the North Key Lurg+v
central sewer spleen, which cannot be financed or operated without a cwtomrer
base. Des4rnating parrels as SPA in the North Joey Largo service area would
discourage development in that service area In adopting and approving this
regulation. Eire County and the Department approprlately balanced the competing
90als of flee Principles for Guiding Development. Glven these unique
circ uutances, the LDR is not arbitrary.
3) Monroe County deleted Section 4.5 256(cX3) c., that provides hammock identified in the
County's dais base and aerial surveys as 1.00 to 1.09 acres in area to be verified by survey
prior to its designation as Tier 11IA. A hammock that is deemed by survey and a f eld review
by County Biologists to fail the minimum size Cteria Shall have the Tier 111A (SPA)
designation removed from the subject panel. The Final Order did not identify this section
for deletion. Additionally, the Recommended Order for Can No. 06- 2449GM, states. in
Finding of Fact paragraph 98, that
EM IT A
Paw 3 of 5
Ms. Christine Hurley, Direct of Growth Managernent
February 9, 2010
Page 3
The 77er designations were accomplished prjmarily bas using CIS rnappi,tg data.
WAfn applied to the larger I;er I areas, a tenth of an acrd is a sma Ermr.
Howew, when applied 10 the much snta!!er SPA, a With Of an acre smor can be
slgnr leant. The County's choice of surveying fhe sra4l& -r SpAj. while not &Vating
the 77er I areas In the same manner, Wa not arbitrary,
The Department requests the three subsections of Section 134 -130 (pmviotWy numbered
9.5 -256) of the land development regulations jentlijed above be restored to retlzct Final Order
NO. t]CA07-GM -166A and Administrative Law judge's recommendation. We request a
courtesy copy of the corrected land dev matt reg be rovi
oP Bu p ded to the Department. A
formal rendition for issuance of a Department final order will not be necessary.
We look forward to working with the County to fully aehicve the strategies of the
Monroe County Work Prograzn i n Rule 28 Florida Administrative Coda If you need
additional assistance, please contact Rebecca Je#ton, Areas of
Cri #i cal State C oncern
Administrator, at (850) 922
Sincerely yours,
Shaw P. Stilier
General Counsel
SSlres
cc: Mr. Bob Shillinger, ChiefAssistant County Attorney
Ms. Susan Grimsley, Assistant County Attorney
= See attached Drdinn)w No. 10 -2006 Went"Y n9 =n We "d sInIc f0mlat. the
Monroe Cvvnty Land DW9ivpr 4m Regulations based upon the D nment s A �d rnen No to the
aM.I6CA. mended mi Dr&de. i7C'A07-
EMMIT s
Page 4 of 6
Ordinance Noy. 10-206
dmmb based upon Foul Order
Sec. 9.g -255. Tier overlay district
(a) Purpose." The purpose of this Tier Ovaky District is to designate geographical areas
outside of mainland Mourne County, excluding the Ocean Reef p1mmed development, into
leers to assign ROGO and NRCGO points, dewmr ne the amount of clearing or upland native
vegetation that may be permitted, and prioritize lands for public acquisition. The Tier
boundaries am to be depicted on the Tier Overlay District Map. Lands on Big Pine Key and
No Narne ,Key shall be delineated as Tier I, u, or Iii. Lands in the remainder of
unincorporated Monroe County, excluding the Ocean beef planned development, shall be
delineated as "Flea 1, III, and ill -A (Special Protection Area).
(b) l ter bmmdaries: Tier boundaries shall follow property lines wherever possiblc except
whom a parcel line or distinct geographical feature, such as a canal or roadway, may be more
app ateL
(c) Tier boundary Critsr &4 exch ding Big Pine Kay and No Name Key: The Tier boundaries
are "Snared using aerial photography, data from the Florida Keys Carrying Capacity
Study,the endangered species mops, property and permitting information and field
evaluation. The following criteria at a minimum are used to evaluate upland habitats stied
designate boundaries between dif fe mi Tier Overlays:
( 1) Tier I boundaries shad be delineated to includes one or more of the following crittmia
and shall be deaignateed Tier 1: wl
1W M fmw Cal
b. Vacant (ands, which can be restated to connect upland aatLye .habitat patches and
reduce fbrtherr fragmentation of upland native habitat.
c. Lands required to provide an undeveloped burfer, up U) rive hundred (500) fed in
depth, if indicated as appropriate by special species atudiM between natural areas and
development to reduce secondary impacts. Canals or roadways, depending on width
may foist a boundary that removes the need for the bu tTer or reduces its depth.
d. Lands designated for acquisition by public agencies for conservation and natiiranl
resource protection.
e. Known locations of threatened and endangcr+ed species as defined in section 9.5 -4
'dealt' fled art the Thmucncd and Endangered Plant and Animal Maps or the Florida
Keys Carrying Capacity Study reaps, or identified ill on-site surveys.
f. Conservation, Native Area, Sparsely Settled, and 01y-Shore island Land Usc districts,
g. Area with minimal existing development and infrastructure.
(2) Lands located outside of Big line Key and No Name Key that are not designated Tier I
shall be designatod Tier III.
C
MINT A
Page 5 of 6
Nr1MdMW ME IN
L The following conditions sham constitute a break in pinelands or ical hardwood
hammock for calculating he �
g one -acre minimum patcb size for designation of Tier UP
A boundaries:
I . U.S. highway I , canals and open water
2. Any disturbed pine N& or tropical hardwood hammock with invasive
coverage of forty (40) percent or more;
3. Property lines of developed lots or vacant lots with a ROGO allocation award
or an issued build inS permit, as of September 29, 2005, located within a Land
Use District that allows only one unit per lot; or
4. Property l ines of developed parcels of less than 10,000 square feet in area with
a RGGOMOGG allocation award or issued building permit, as of S
Z$, 2005, located within a Land Use District tljat allows residential development
of mane than one dwelling unit per par+ceNot or non- residerWW development.
b. Lots, designated Tier III -A (Special Protection Areas) on the 11/29/05 maps may
petition the county for a rezoning to Tier IR if the lot meats one of the followin
criteria: $
I . The lot will be urved by a central sewer and the wastewater collection system
has an approved permit that was effective 3/21/06 to construct the system on file
from the Department of Environmental Protection; or
ME-Ank Nit 16 to A k ■
Such lots may be granted a score of 30 points through an administrative determination
made by the County Biologist, the Director or Growth Msrtagement and rendered to
the Depwfrnent of Corrlmunity Affairs until such time as the- County nsors a
zoning map change to update the Tier Three Overlay Zoning �
y g Map and it is approved
by the Department of Community Affaim
c. Any hammock identffed in the County's data base and aerial surveys as 1.$)0 to 1.09
acres in area shall he verified by survey prior to its dig►nation as Tier C[IMMA A
hammock that is deemed by survey and a field review by County Biologf sts to fail the
minimum size criteria shall have the Special Protection Area subject parcel■ desig removed
from the sub '
(c) 819 Pine Joey and No Name Key T18r 8011 ndary Criteria: The Tier boundaries shall
designated using the Big Pine Key nd No Marne be
Y eY Habitat Conservation Plan (2045) and
adapted Community Master Plan for Big Pine Key and No Marne Key.
Y
(d) 77er overlay district map amendmew. The Tier Overlay District M be a
to reflect existing cond in an area if warrant ed, because of d rafting ma mended
ng or data errors o
IT s
Page 6 o 6
regrowth of hammock. However, the clearing of tropical hardwood hammock or pinclarxis
that results in the reduction of the area of an upland native habitat patch to less than the one -
acre minimum shall not constitute Sufficient grounds for atnom ing the desipation of a Tier
III -A area to Tier W. The Tier Ovariay Distict MV amendment shah be made pursuant to
the procedures for map amendments to this chapter. Unlawlhl conditions shall not be
recognized when determining existing conditions and regulatory requirementL
(e) Regaem for Tier I desigxadon: Notwithstanding the provisions of Section-9-5-51 1 xt
any individual ms submit an app , , � f '
app cation to the plarming department containing substntial
and cunt documentation that an area meats the Tier I criteria. Applications must be
received by July I of eat year on a form approved by the director of l anni for
consideration the p �
by special master act a public hung advertised at least often (I da
prior to the hearing date. Said heiezi b the
d
1 of each • . � Y al master aha#t be held prior to Novemb year. The d irector of p lartning will rev iew the documentation and any other
appropriate scientific inforn ation and prepare an analysis report ror the special mss a. The
special master will ronder a written 00mon to the planning commission and board orcount
commissioners either that the application meets the criteria for desi atin y
or that the documentation is insufficien � B � lands as Tier .#
nt to wamaat a map amendment. The posting,
advertising and review will follow the procedures in Bee. 9.5 I(d)(3 )(4 ) and 5)."
ICT B
Page 1 of
ordinance No. 1 0-2006
A onto bued upon FhW Order
SM 9.5c.25L Tier overlay dlstrkt
(a) Pw7xwe: The purpose of this Tier Overlay Dietcict i to designate geogmpbical areas
outside of nr eland Monroe [- ounty, excluding the Gcemi Reef planned development, into
tiers to assign RGGQ and NROGp points, determine the amount of clearing of upland native
vegetstkm that may be permitted, and prioritize lands for public acquisition. The Tier
boumWes are to be depicted on the Tier Overlay District Map, lands on Big ine K and
No Name Ivey shalt be delineated as Tier 1 U � � Key
or it [. rands :n the romaindesr of
unincorporated Monroe County, excluding the Ocean Reef planed development, shall be
delineated as Tier I, UT, and III -A (Special PsAaction Area).
(b) Tier boundaries; Tier boundad a shall ibitow prvpa ty lines wherever ssibic except
whom a parcel lrna or distinct eQ �
g graphical feature, such as a canal or roadway, may be more
approprista
(c) 77er boundary criteria, excludI119 Big Fine KOY and JVa Name Key: The 'Tier boundaries
are designated using aerial photography, dgta rrom the Florida Keys in aci
Studythe endangered specks ni ro . . g � tY
p Ply and permitting i n formation and field
evaluation. The following criteria at a minimum are used to eva l uate u land habitats ; wd
designate boundaries between dif Ys' nt Tier Ovada . P
( t) Tier I boundaries shalt be delineated to include one or mate o the following riteria
and shall be designated Tier T; g
�..- b. Vacant lands, which cap be restored to connect upland native '
reduce fUrther fro lion of p e habitat patches and 8 upland native habitat.
c. Lands required to provide an undeveloped butler. up to rive hun6md app 500
depth, if indicated U ro 'ate s - t 3 feet in
� by P motes studies between natural areas twd
development to reduce secondary impacts. Canals or roadway$, d din on width
may farm a boundary that removes the need fair the bu ' or redttoes its depth.
d. Lands designated for acquisition by pub agencies for conservation wW natu
s
resource protection, ral
e. [mown locations of thrcatenod and endangered species as defined in section 9.
identi lied on the Threatened and Endangered Pi '
K� Carrying C sell � ant and Animal Maps or the Florida
aP y Study map% or identifled in on -site surveys.
f. tstr�
Conservation, Native Arm, Sparsely Settled, and Off-Shore Island Land Use • .
g. Areas with minimal existing development end in frastructure dc#e.
.
(2) Lands located outside of Big Hine Key and NO Name Key that are not Tier I
shall be deal di
Mated Tier Ill.
EIBIT B
Page 2 of 3
Ak
a. The following conditions ehalf constitute a break in inelands or a
hammock for calculating the vn� -acr+e minimum p tropical i hardwood
A boon g rn�ntmum patch size for designation of Tier ll'f-
boundaries:
I . U.S. Highway I V canals and water
2. Any disturbed pineignds or tropical hardwood hammock with invasive
coverage of forty (40) percent or more;
3. Property lines of developed lots or vecatatt lots with a RGQQ allocation award
or an issued building permit, as of September 2$, 2005, located within a Land
Use Distract than allays only one unit per lot; or
4- lines of developed parcais of less than 1 %000 square fleet in area with
a RGGQINRGC10 allocation award or issued building permit, as of S e p t em b er
28 2005, located within a Land Use District dw allows
than one dwelling of more u ' �den#ial d evelopment nit per pat�ceylot or non - residential development.
b. Lots designated 'Fier Ill -A (Special Protection Arras) on the 11/29/05 m s may
Petition the county for a moning to Tier W if the lot m one of the following
meets o Y
criteria:
I. Th s lot will be served by a central sewer Wd the wastewater collections em
has an approved permit that was effective 3/2 t M6 to c �
from the mrnental Protection; or ant of Envixo construct the system on ffle
6 VA
shm- WIN WVWVR�W amp
Such lots may be granted a snore of 30 points through an administrative determination
the Co naftan
made b
y catty Biologist, the Dirrfor of Growth Managetnent and rendered to
.-- the Delmoment Of Community Affairs until such time as the -Co sponsors
zoning map change to update the Tier Threw Overlay � secs 8
by the D m o�numunity ant o f G Aff kim Y honing Map and it is approved
c. Any hammock identified in the County% data base and aerial sure .
acres in area shall be veriffed by scar► prior to its � as 1oo to 1.09
l�ammock that is deemed eY P designation as Tier lit - A
by survey and a fold review by County Biologists to fait the
minimum site criteria shall have the Special Protection Area designation
gram the subject parcel,
on removed
(c) Big Pins Key and No Hamer Key 77er Borst w y Crtrerfa. The Tier bo undaries
designated using the Sig Pine Key and No Name K shell be
ed Community M aY Habitat Canaervation Plan �20D5� and
ad
opt y aster Plan Far Sig Pine Ive and No Dame
(d) rer Over* distrr'ct m, p arnendrrr8rts. The Tier Overlay District N!
to reflect existing conditions in an area if warranted, map may be amended
wanted bee sure of drafting or data errors or
BIT S
Pap 3 of 3
regrowth of hammock. However, the clearing of tropical hardwood hammock or inelands
that raauha in the induction of the area of an upland native habit e P
p to less than the Ono.
acre minimum shall not constitute sufficient graunda four amending the deal ation of a Tier
III -A area to Tier Ili. The Tier 0mla District am
y �P eridments shelf be ma& pursuant to
the
procedures for map amendments !o this chapter. Urdawttil conditions shall not be
recognized when determining exisdrig conditions and regulatory r qu
t rem
ents.
(a) Regm6sl far r'er I desfgnotfoN: Notwid tandieg the pr►oviaions of Section l d
plicstion to the i ial
any individual may submit an
$P p among depaRment containing substantial
and competent documentation that art area meats the Tier I Mtgria. A licatona must
v � i ba
received by July t of each year on a fofrn a naiderati on b the- a i approved by the director or pla nnnt ng for
C091 al master at a public hearing advertised at least ftfteen ( IS) da
prior to the he�mng data. Said hearin the �
I of each ear. director � r special maker l be held prior to November
• y The of planning will review the documentation and an other
appropriate scientific information and r X
sp msa�r will der a written opinion to sn analysis rt bar the special master, The
P� the planning commission and board of count
commissioners either that the application meets the critaria fair deli the Y
or that the dacixment�on is insufficient to � lands as Ti
er I
advertising and review will follow wert'ant a map amendment. The postings i
the procedures sec. 9.5-511 ( d) ( 3 )(4) and X53.
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