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07/08/1998 AgreementBRANCH OFFICE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289-6027 FAX (305) 289-1745 `�ouNry�,+q �•�4J�ii cuiQ4��G9 a i d+ 0 c P oygof CoUN7V. Fyo -Mannp 1. Rotbage CLERK OF THE CIRCUIT COURT MONROE COUNTY 500 WHITEHEAD STREET KEY WEST, FLORIDA 33040 TEL. (305) 292-3550 FAX (305) 295-3660 M E M O R A N D U M BRANCH OFFICE 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852-7145 FAX (305) 852-7146 TO: Bob Herman, Director Growth Management Division FROM: Isabel C. DeSantis Deputy Clerk DATE: July 27, 1998 On July 8, 1998 the Board of County Commissioner's held a Public Hearing and adopted a Stipulated Settlement Agreement with the Florida Department of Community Affairs for resolving the issue of the Department's finding of not in compliance for the comprehensive plan text amendment adopted by Ordinance No. 039- 1997. Enclosed please find one original and copy of the Agreement executed by Monroe County for your handling. Please be sure that a fully executed copy is returned to my office as quickly as possible. Should you have any questions concerning the above, please do not hesitate to call. cc: County Attorney County Administrator, w/o doc. File STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, vs. MONROE COUNTY Respondent, and FOWLER, FOWLER, LESKO and VAN FLEET, Intervenors DOAH CASE NO.98-0792GM M IM" c�-.. rn F M ter : -0 . a) 1 -n c r- c=) c-) co o c N C7 STIPULATED SETTLEMENT AGREEMENT Petitioner, Department of Community Affairs (Department), and Respondent, Monroe County (County), hereby stipulate and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes. b. Agreement: This stipulated settlement agreement. C. Comprehensive Plan Amendment or Plan Amendment: The comprehensive plan amendment adopted by the County on November 12, 1997, by Ordinance No. 039-1997. Hearings. d. DOAH: The Florida Division of Administrative e. In compliance or into compliance: Consistent with Sections 163.3177, 163.3178 and 163.3191, Florida Statutes, Section 187.201, Florida Statutes, the applicable regional policy plan, the principles for guiding development and Chapter 9J-5, Florida Administrative Code. f. Notice: The notice of intent issued by the Department to which was attached its statement of intent to find the plan amendment not in compliance. g. Petition: The petition for administrative hearing and relief filed by the Department in this case. h. Remedial Action: A remedial plan amendment, submission of support document or other action described in the statement of intent or this agreement as an action which must be completed to bring the plan amendment into compliance. i. Remedial Plan Amendment: An amendment to the plan or support document, the need for which is identified in this agreement, including its exhibits, and which the local government must adopt to complete all remedial actions. Remedial plan amendments adopted pursuant to this agreement must, in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this agreement or be otherwise acceptable to the Department. j. Statement of Intent: The statement of intent to find the plan amendment not in compliance issued by the Department in this case. k. Support Document: The studies, inventory maps, surveys, data, 2 ,.2 inventories, listings or analyses used to develop and support the plan amendment. 2. Entire Agreement. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this document. 3. Approval by Governing Body. This agreement has been approved by the County's governing body at a public hearing advertised in an advertisement published at least 10 days prior to the hearing in the manner prescribed for advertisements in Section 163.3184(15)(c), Florida Statutes. This agreement has been executed by the appropriate officer as provided in the County's charter or other regulations. 4. Changes in Law. Nothing in this agreement shall be construed to relieve either party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence. 5. Other Persons Unaffected. Nothing in this agreement shall be deemed to affect the rights of any other person under the law. fees. 6. Attornev Fees and Costs. Each party shall bear its own costs, including attorney 7. Effective Date. This agreement shall become effective upon the last date of signing by the Department or the County. 8. Purpose of this Agreement, Not Establishing Precedent. The parties enter into this agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the plan amendment. The acceptance of proposals for purposes of this agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local government. 9. Department Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the plan amendment is in compliance. 10. Exhibits. Exhibits A and B are hereby incorporated by reference. 11. Negotiation of Agreement. The Department issued its notice and statement of intent to find the plan amendment adopted by Ordinance 039-1997, not in compliance, and filed the petition in this case to that effect. Subsequent to the filing of the petition the parties conferred and agreed to resolve the issues in the petition, notice and statement of intent through this agreement. It is the intent of this agreement to resolve fully those issues between the Department and the County raised by the finding of not in compliance for the amendment adopted by Ordinance 039-1997 in this proceeding. Those issues raised by the finding of not in compliance for the plan amendment adopt by 043-1997 are not resolved by this agreement. 12. Dismissal. If the County completes the remedial actions required by this agreement, the Department shall issue a cumulative notice of intent addressing the compliance agreement amendment (if necessary) and the initial plan amendment subject to these proceedings. The Department shall file the cumulative notice of intent with the DOAH along with a request to dismiss this proceeding. 13. Filing and Continuance. This agreement shall be filed with DOAH by the Department after execution by the parties. Upon the filing of this agreement, the administrative proceeding in this matter shall be stayed by the administrative law judge in accordance with 4 Section 163.3184(16)(b), Florida Statutes. 14. Retention of Right to Final Hearing. Both parties hereby retain the right to have a final hearing in this proceeding in the event of a breach of this agreement, and nothing in this agreement shall be deemed a waiver of such right. The Department or any other party to this agreement may move to have this matter set for hearing if it becomes apparent that any other party whose action is required by this agreement is not proceeding in good faith to take that action. 15. Description of Provisions not in Compliance and Remedial Actions, Legal Effect of Agreement. Exhibit A to this agreement is a copy of the statement of intent, which identifies the provisions not in compliance. Exhibit B contains remedial actions needed for compliance. This agreement constitutes a stipulation that if the remedial actions are accomplished, the plan amendment will be in compliance. 16. Remedial Actions to be Considered for Adoption. The County agrees to consider for adoption by formal action of its governing body all remedial actions described in Exhibit B no later than the time period provided for in this agreement. 17. Adoption or Approval of Remedial Plan Amendments. Within 60 days after execution of this agreement by the parties, the County shall consider for adoption all remedial actions or plan amendments and amendments to the support documents. This may be done at a single adoption hearing. Within 10 working days after adoption of the remedial plan amendment, the County shall transmit 5 copies of the amendment to the Department as provided in Rule 9J-11.011(5), Florida Administrative Code. The County also shall submit one copy to the regional planning agency and to any other unit of local or state government that has filed a 5 written request with the governing body for a copy of the remedial plan amendment and a copy to any parry granted intervenor status in this proceeding. The amendment shall be transmitted to the Department along with a letter which describes the remedial action adopted for each part of the plan amended, including references to specific portions and pages. 18. Acknowledgment. All parties to this agreement acknowledge that the "based upon" provisions in Section 163.3184(8), Florida Statutes, do not apply to the remedial amendment. 19. Review of Remedial Amendments and Notice of Intent. Within 45 days after receipt of the adopted remedial plan amendments and support documents, the Department shall issue a notice of intent pursuant to Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this agreement. a. In Compliance: If the adopted remedial actions satisfy this agreement, the Department shall issue a cumulative notice of intent addressing both the plan amendment and the compliance agreement amendment as being in compliance. The Department shall file this cumulative notice with DOAH and shall move to have this proceeding dismissed. b. Not in Compliance: If the remedial actions are not adopted, or if they do not satisfy this agreement, the Department shall issue a notice of intent to find the plan amendment not in compliance and shall forward the notice to DOAH for a hearing as provided in Subsection 163.3184(10), Florida Statutes, and may request that the matter be consolidated with the pending proceeding for a single, final hearing. The parties hereby stipulate to that consolidation and to the setting of a single final hearing if the Department so requests. 20. Effect of Amendment. Adoption of any necessary compliance agreement R amendment shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. This agreement contains all the terms and conditions agreed to by the parties. 7 In witness whereof, the parties hereto have caused this agreement to be executed by their undersigned officials as duly authorized. DEPARTMENT OF COMMUNITY AFFAIRS CAROL .AROL A - FO r4-h marti 6. Steven Pfeifftr, Acting Director Division of-Reseiffc-a—P.lanuiug a C Ow.O% u K P(ahV1 �y Date Assistant General 1 Monroe County • 9, )97g Attest: �il�ill ,. 1,:()1 :,.Ou, aJ-,Lt (2. ?an 21 'ate 1_ : i� -. != i II I RE: MONROE C6UNM COIvLPRPSM PLAN) A,Iv1END MENTS ADOPTED B�' DOCKET NO. 97-2 NOI=4401-(A}-(n(I� ORDINANCE NOS 039-1997) & 043-1997 ©N NOVEMBER 12`19)97) S.t.4TE OF'j'ET_TO F C MP L NO 1N CO L 'AN E The Florida Department of community Affairs hereby issues its Statement of Intent to find portions of Monroe County Comprehensive Plan -',Amendment 97-2, adopted by Ordinances 039-1997 and 0434997 onNovember 123. 1997 Not In Compliance. The Department finds that the lan amendment is not "in compliance," as defined in Section 163.3184(1)(b), Florida . P Statutes (F.S.), because it is not consistent with Chapter 163, Part II, F.S., the State pensive Plan and Chapter 9J-5, Florida Adaiii istmtiYe Code (F.A.C.), for the following Compre reasons: A. Inconsistent rs• The inconsistent provisions of the plan amendment oviunder this subject heading are as follows: 1 The amendment is inconsistent because the amendment is not supported by adequate data and analysis that demonstrates the need for add`itional commercial uses or transient units within Monroe County. [Section 163.31.77(6)(a), F.S., Rule 91-5.005(2)(a), and Section - 380.0552(7)(a)] l EXHIBIT A Jan 2) The am t is -internally .ki nsistent with the adopted comprehensive: plan which 'des for a moratorium on commercial'and transient uses until further. analyses are completed Pew to demonstrate the steed for additional commercial and transient development- [Section 163.3177(2) and (6)(a). Rule 97 5.005(5)(a), and Chapter 380.0552(7)(a)) ' 3) The amendment is not supported by adequate data and analysis to demonstrate that sufficient public facility capacity is available to meet projected demand from the amendment and other development projected over the next five years, nor does the supporting analysis indicate how public facility needs will be addressed through Year 2010. The amendment is not supported by adequate data and analysis to demonstrate how water quality will be restored, protected and improved based on the wastewater and storm water impacts resulting from the commercial use allowed by the amendment and from other_ development impacts projected through the next five years and through Year 2010. [Chapter 163.3177(2) and (6)(a), Rules 9J-5.005(2)(a); 9J- 5.006(2)(a); 9J 5.011(1) (f)2, 3 -and 4; 91-5.013 (2)(b)2 I and 9J-5.013 (2)(c) 1, and Chapter 3 80.0552(7)(a), (e), and (h)j B. Recommended remedial. actions. The:mconsistencies may be remedied by the following actions listed in respective order: 1. Provide additional data and: analysis to deenionstrate the need for additional commercial and transient development. 2. Resolve the internal inconsistency by modifying plan provisions that currently require moratoriums on commercial and transient. development based.on revised data and analysis which demonstrates the need for additional :commercial: and tiransient development. 3. Provide 4dditional data imd analysis to demonstrate that adequate public facility 04 i Jan ectcd demand fiom the,amendment and other projected capacity ewts'to mee `the prof. development through e next five years Provide dataanalysis to indicate how public facility needs will be addre I through Year 2010. PravidG additional data and analysis to demonstrate protected and improved based on the wastewater and storm how water quality will be restored, p usesall°wed by the ariaendmt ent and from other development. water impacts resulting from the, impacts projected through the next five years and through Year 2010. II. A. In -con -t provisions. A. TO t A i3S E(Ord. 039-1997) The amendment to Policy 101.4.21, regarding only footnote (h), amendment does not provide adequate guidance for the development is inconsistent because the of appropriate, implementing regulations to address zoning needs for the Education, ASnculture, PP Institutional, Public Facilities, and Public Buildings land use categories. The amendment attempts`to establish specific zoning regulations which must be submitted according improperly to the provisions of Chapters 163 and 380, F.S. The amendment fails to address the requirements for school siting, including an analysis of vacant lands and designation of sufficient lands within land use categories that allow for schools in proximity to residential development to meet P J ro ected needs for schools for the next five years and through Year 2010. The amendment, is not supported by adequate data and analysis that demonstrates required coordination with the ning future school needs. ds. The amendment circumvents this requirement School Board in determi by defemng to the lid development regulations for: siting of schools. [Section 163.3177(2) and (6)(a), F.S., Rule 9J-5.005(2)(a) and section 380.0552(7)(a)and (h), F.S.] g. ecc enhed remedial act ns. following actions: The inconsistencies may be remedied by the 3 Jail 27 ''Jr- I P. 1. ProvidA irate ate data and and that demonshates coordination vA&Ahe Sebool Ys�s 2010. This for o,. ,.,t five years and through Year Board in determining 1proj ected SCA001 needs I - to identify. sufficient sites in proximity to analysis should include an assessment of vacant liands. residential developmept to meet the prof ected needs. -,he fumre land use map and categories should be revised to designate adequateland use categories based on the needs analysis to allow for the adequate siting of needed -schools. Ili. CON WI � �' �S �PAN� THE TAU& A. Inconsistcntp-rovi�io- The inconsistent Provisions of the plan amendmentunder this subiect heading are as follows: 1. The amendmentstent with the State Comprehensive Plan, including the is incOnsi following 0 provisions (Rule 9J-5.021, FA.C.): a) Goal 8, policies 12, and 13. b) Goal 16, policies 6. on B. Recornmendedremedial actions: These inconsistencies may be remedied by taking thefollowing actions: j. Revise the plan amendment as previously recommended above. Jan CONCLUSIONS 1. The plan amendment is not consistent with the State Comprehensive Plan. 2. The plan amendment is not consistent with Rule 9J-5, Florida Administrative Code. 3. The plan amendment is not consistent with the requirements of Section 163.3177, Florida Statutes, 4. The plan amendment is not consistent with t1 a principles for Guiding Development,' as set forth in Section 380.0552(7); Florida Statutes. 5. The plan. amendment is not "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes 6. In order to bring the plan amendment. into compliance, -the County may complete the recommended remedialActions described above or adopt other'remedial actions that eliminate the inconsistencies. Executed_this3 day of 1998, at Tallahassee, Florida ur �� A-1 I = Charles G. Pattison, Director Division of Resource Planning And Management Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 3 23 99-2100 5 EXHIBIT B COMPLIANCE ACTIONS Monroe County agrees to conduct data collection and analytical tasks in coordination with the Monroe County Board of Education, including the preparation of any comprehensive plan amendments, necessary to bring its comprehensive plan into compliance with the future land use element requirements for public schools in Section 163.3177(6)(a) Florida Statutes. Prior to the adoption of any proposed comprehensive plan amendment, the County further agrees to provide the Department of Community Affairs with all research and projection data and plan recommendations by no later than July 15, 1998. Any required amendment shall be scheduled for an adoption hearing before the Board of County Commissioners by no later than September 9, 1998, and submitted to the Department of Community Affairs and other appropriate agencies immediately thereafter.