Ordinance 020-2013MONROE COUNTY, FLORIDA
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ORDINANCE NO. 020 - 2013
AN ORDINANCE BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS REVISING PROVISIONS OF THE
MONROE COUNTY CODE CONCERNING THE NON-
RESIDENTIAL RATE OF GROWTH ORDINANCE ( NROGO);
AMENDING THE FOLLOWING MONROE COUNTY CODE
SECTIONS: SECTION 138 -47, NONRESIDENTIAL RATE OF
GROWTH ORDINANCE; SECTION 138 -52, APPLICATION
PROCEDURES FOR NROGO; SECTION 138 -53, EVALUATION
PROCEDURES FOR NONRESIDENTIAL FLOOR AREA
ALLOCATIONS; ESTABLISHING NEW DEFINITIONS;
ESTABLISHING A MECHANISM TO ALLOCATE
NONRESIDENTIAL FLOOR AREA UNALLOCATED IN
PREVIOUS YEARS; PROVIDING FOR SEVERABILITY;
PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS;
PROVIDING FOR TRANSMITTAL TO THE STATE LAND
PLANNING AGENCY AND THE SECRETARY OF STATE;
PROVIDING FOR CODIFICATION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, since the implementation of the Nonresidential Rate of Growth Ordinance
( NROGO) permit allocation system, applications for square footage have not exceeded the
amount available. Historically, the County has utilized only a small percentage of the total
amount of square footage made available to the County in a given year. As of July 12, 2012, for
the Upper /Lower Keys areas (excluding Big Pine/No Name Keys), 389,991 square feet (and
growing) had not been utilized for development. In addition, as of July 12, 2012, 4,339 square
feet of the square footage had not been awarded to Big Pine/No Name areas since the inception
of the Big Pine CommuniKeys Plan and a separate allocation process in 2006; and
WHEREAS, this amendment establishes an application process for the NROGO bank, a
codified mechanism to allocate nonresidential floor area that went unallocated in previous years;
and
WHEREAS, in order to have proportional nonresidential growth, as part of a concurrent text
amendment, the Land Development Code is being amended so that the annual NROGO
allocation is proportionately divided into the three ROGO subareas (Upper Keys, Lower Keys
and Big Pine/No Name Keys). Currently, the annual allocation is divided between the two
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Upper /Lower Keys subareas and the Big Pine/No Name Keys subarea as required by the Big
Pine and No Name Keys CommuniKeys Plan. As such, the NROGO bank shall be distributed
proportionately; and
WHEREAS, for the opening balances of the Upper and Lower Keys ROGO subarea accounts
(as of the beginning date of NROGO Year 22- July 13, 2013), 50% of the banked amount shall
be distributed to the Upper Keys and the remaining 50% of the banked amount shall be
distributed to Lower Keys; and
WHEREAS, in each the Upper and Lower Keys ROGO subarea account, there shall be a reserve
balance of 20,000 square feet; and
WHEREAS, based upon the information and documentation submitted, the Commission makes
the following Conclusions of Law: 1) the text amendment is consistent with the Principles for
Guiding Development in the Florida Keys Area of Critical State Concern; 2) the text amendment
is consistent with the provisions and intent of the Monroe County Comprehensive Plan; and 3)
the text amendment is consistent with the provisions and intent of the Monroe County Code; and
WHEREAS, during regularly scheduled meetings held on June 26, 2012 and August 28, 2012,
the Monroe County Development Review Committee reviewed the ordinance and recommended
approval to the Board of County Commissioners; and
WHEREAS, during regularly scheduled public hearings held on January 30, 2013, February 27,
2013 and March 27, 2013, the Monroe County Planning Commission reviewed the ordinance
and recommended approval to the Board of County Commissioners;
NOW, THEREFORE, BE IT ORDAINED BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS:
Section 1. Section 138 -47 of the Monroe County Code shall be amended as follows:
Sec. 138 -47. Nonresidential rate of growth ordinance ( NROGO).
(a) Definitions. The following words, terms and phrases, when used in this article, shall have
the meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
Allocation date means the specific date and time by which applications for the NROGO
allocation will be accepted and processed.
Annual allocation period means the 12 -month period beginning on July 14, 2001, and
subsequent one -year periods that is used to determine the amount of nonresidential floor
area to be allocated based on the number of ROGO allocations to be issued in the
upcoming ROGO year.
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Annual nonresidential ROGO allocation, also referred to as an annual NROGO
allocation, means the maximum floor area that may be allocated during an annual
allocation period.
Buildable lot or parcel, for the purposes of this article, means a lot or parcel which must
contain a minimum of 2,000 square feet of uplands, including any disturbed wetlands that
can be filled.
Canopy, also referred to as a sunshade, in reference to a structure, means an unenclosed,
covered area. A canopy may be a free - standing structure or may project from the wall of
a building.
Community master plan means a plan adopted by the board of county commissioners as
part of the Monroe County Livable CommuniKeys Program.
Controlling date means the same as defined in section 138- 19(a), except it shall apply to
NROGO applications under this article.
Historic resources means a building, structure, site, or object listed or eligible for listing
individually or as a contributing resource in a district in the National Register of Historic
Places, the state inventory of historic resources or the county register of designated
historic properties.
Lawfully established ROGO/NROGO exemption means a residential dwelling unit or
nonresidential floor area that has received a permit or other official approval from the
division of growth management for the units unit and /or nonresidential floor area.
Nonresidential floor area means the sum of the total floor area for a nonresidential
building or structure, as defined in section 101 -1— Additionally, covered and unenclosed
boat racks with three or fewer sides not associated with retail sales of boats are not
considered nonresidential floor area. Further, the term "nonresidential floor area" does
not include space occupied by residential uses, including spaces occupied by a transient
residential unit and an institutional - residential use as defined in section 101 -1.
Nonresidential ROGO allocation, also referred to as NROGO allocation, means the
maximum amount of nonresidential floor area which may be allocated in a given time
period.
Nonresidential ROGO allocation award, also referred to as NROGO allocation award,
means the approval of a nonresidential ROGO application prior to the application and
subsequent issuance of a building permit to authorize construction of new nonresidential
floor area.
Nonresidential ROGO bank, also referred to as NROGO bank, means the cumulative
total of a) NROGO allocations that were not awarded and thereby not allocated due to a
lack of demand, b) nonresidential floor area not made available for the annual NROGO
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allocation by the board of county commissioners; and c) allocated nonresidential floor
area reclaimed due to the abandonment or expiration of approved development that
received a NROGO allocation award.
Nonresidential ROGO account, also referred to as NROGO account, means one of the
four accounts that cumulatively establish the NROGO bank. There are four accounts
within the NROGO bank, with each carrying an independent balance of nonresidential
floor area: 1) the Upper Keys ROGO subarea account; 2) the Big Pine/No Name ROGO
subarea account; 3) the Lower Keys ROGO subarea account; and 4) the Upper and Lower
Keys general (joint) account.
Quarterly nonresidential ROGO allocation period means any one of the four periods
within an annual allocation period.
Quarterly nonresidential ROGO allocation means the maximum number of amount of
nonresidential floor area square footage which may be allocated in a quarterly allocation
period.
Site means the parcels of land required to be aggregated to be developed or from which
existing nonresidential floor area is to be transferred or received.
Storage area means the outside storage of vehicles, recreational vehicles, boats, campers,
equipment, goods and materials for more than 24 hours. The term "storage area" includes
a contractor's equipment storage, but does not include outdoor retail sales, which is
defined in section 101 -1. This is considered a light industrial use and does not include
waste transfer stations, junkyards, or other heavy industrial uses.
(b) Purpose and intent. The purposes and intent of the nonresidential rate of growth
ordinance ( NROGO) are:
(1) To facilitate implementation of goals, objectives and policies set forth in the
comprehensive plan relating to maintaining a balance between residential and
nonresidential growth.
(2) To maintain a ratio of approximately 239 square feet of nonresidential floor area for
each new residential permit issued through the residential rate of growth ordinance
(ROGO) by ROGO subarea.
(3) To promote the upgrading and expansion of existing small -size businesses and to
retain the predominately small scale character of nonresidential development in the
Florida Keys.
(4) To regulate the rate and location of nonresidential development in order to eliminate
potential land use conflicts.
(5) To allocate the nonresidential floor area annually hereunder, based on the goals,
objectives and policies of the comprehensive plan and the community master plans.
Section 2. Section 138 -52 of the Monroe County Code shall be amended as follows:
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Sec. 138 -52. - Application procedures for NROGO.
(a) Application for allocation by way of the NROGO allocation system. The planning and
environmental resources department shall accept applications to enter the NROGO
system. The NROGO application must be accompanied by an approved building permit
application in order to be considered. The planning director, or his or her designee, shall
review the NROGO application for completeness. If the application is determined to be
incomplete, the planning director, or his or her designee, shall reject the NROGO
application and notify the applicant of such rejection, and the reasons therefor, within ten
working days. If determined to be complete, the application shall be assigned a
controlling date. The NROGO application shall be submitted in a form provided by the
planning and environmental resources department and meet the following requirements:
(1) The application shall include a) the name and address of the property owner(s) of
record, b) the property record card(s) from the Monroe County Property Appraiser, c)
a written legal description of the property proposed for development, d) a boundary
survey of the property proposed for development, prepared by a surveyor registered
in the State of Florida, showing the boundaries of the site, elevations, bodies of water
and wetlands on the site and adjacent to the site, existing structures including all
impervious areas, existing easements, total acreage and total acreage by habitat and e)
a site plan. The boundary survey and site plan may be filed with the corresponding
building permit application. Additional copies of the boundary survey and site plan
are not required to be filed with the NROGO application.
(2) If a conditional use permit is required in accordance with this Land Development
Code for the development applied for, the conditional use permit shall be obtained
and effective prior to submittal of any NROGO application. A copy of the recorded
development order shall be submitted with the NROGO application.
(3) The site plan shall be prepared and sealed by a professional architect, engineer, or any
other professional licensed to prepare a site plan. The site plan shall be drawn to a
scale of one inch equals ten feet or one inch equals twenty feet. At a minimum, the
site plan shall depict the following features and information:
a. Date, north point and graphic scale;
b. Boundary lines of site, including all property lines and mean high - water, lines
shown in accordance with Florida Statutes;
c. All attributes from the boundary survey;
d. Future Land Use Map (FLUM) designation(s) of the site;
e. Land Use (Zoning) District designation(s) of site;
f. Tier designation(s) of the site;
g. Flood zones pursuant to the Flood Insurance Rate Map;
h. Setback lines as required by this Land Development Code;
i. Locations and dimensions of all existing and proposed structures, including all
paved areas and clear site triangles;
j. Size and type of buffer yards and parking lot landscaping areas, including the
species and number of plants;
k. Extent and area of wetlands, open space preservation areas and conservation
easements;
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1. Delineation of habitat types to demonstrate buildable area on the site, including
any heritage trees identified and any potential species that may use the site
(certified by an approved biologist and based on the most current professionally -
recognized mapping by the U.S. Fish and Wildlife Service);
m. Drainage plan including existing and proposed topography, all drainage
structures, retention areas, drainage swales and existing and proposed permeable
and impermeable areas;
n. Location of fire hydrants or fire wells;
o. The location of public utilities, including location of the closest available water
supply system or collection lines and the closest available wastewater collection
system or collection lines (with wastewater system provider) or on -site system
proposed to meet required County and State of Florida wastewater treatment
standards; and
p. A table providing the total land area of the site, the total buildable area of the site,
the type and square footage of all nonresidential land uses, the type and number of
all residential dwelling units, the amounts of impervious and pervious areas, and
calculations for land use intensity, open space ratio, and off - street parking.
(b) Fee for review of application. Each NROGO application shall be accompanied by a
nonrefundable processing fee established by resolution of the board of county
commissioners. Additional fees are not required for successive review of the same
NROGO application unless the application is withdrawn and resubmitted.
(c) Compliance with other requirements. The NROGO application shall not constitute an
indication of whether or not the applicant for the nonresidential floor area allocation has
satisfied and complied with all county, state, and federal requirements otherwise imposed
by the county regarding conditions precedent to issuance of a building permit.
(d) Time of review. The planning director may retain the allocation application and its
associated building permit application for review pursuant to the evaluation procedures
and criteria set forth in section 138 -53 and section 138 -55.
(e) Non -county time periods. The county shall develop necessary administrative procedures
and, if necessary, enter into agreements with other jurisdictional entities which impose
requirements as a condition precedent to development in the county, to ensure that such
non - county approvals, certifications and/or permits are not lost due to the increased time
requirements necessary for the county to process and evaluate NROGO applications and
issue allocation awards. The county may permit evidence of compliance with the
requirements of other jurisdictional entities to be demonstrated by coordination letters in
lieu of approvals or permits.
(f) Limitation on number of applications.
(1) An individual entity or organization may have only one active NROGO application
per site in the allocation period.
(2) There shall be no limit on the number of separate projects for which NROGO
applications may be submitted by an individual, entity or organization.
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(g) Expiration of allocation award. An allocation award shall expire when its corresponding
building permit is deemed to expire pursuant to chapter 102, article VII, after 60 days of
mailing of notification for the award of the allocation of nonresidential floor area or after
failure of the applicant to submit required plan revisions by the required date set forth in
subsection (k).
(h) Withdrawal of NROGO application. An applicant may elect to withdraw a NROGO
application without prejudice at any time up to finalization of the evaluation rankings by
the planning commission. Revision and resubmission of the withdrawn application must
be in accordance with subsection (i) of this section.
(i) Revisions to applications and awards.
(1) Upon submission of a NROGO application, an applicant may revise the application if
it is withdrawn and resubmitted prior to the allocation date for the allocation period in
which the applicant wishes to compete. Resubmitted applications shall be considered
new, requiring payment of appropriate fees and receiving a new controlling date.
(2) After receipt of an allocation award, and either before or after receipt of a building
permit being obtained, but prior to receipt of a certificate of occupancy or final
inspection, no revisions shall be made to any aspect of the proposed nonresidential
development which formed the basis for the evaluation review, determination of
points and allocation rankings, unless such revision would have the effect of
increasing the points awarded.
(3) After the receipt of an allocation award, a building permit and a certificate of
occupancy or final inspection, no revision shall be made to any aspect of the
completed nonresidential development which formed the basis for the evaluation,
review, determination of points and allocation rankings, unless such revisions are
accomplished pursuant to a new building permit and unless such revisions would
have the net effect of either maintaining or increasing the number of points originally
awarded.
0) Clarification of application data.
(1) At any time during the NROGO allocation review and approval process, the applicant
may be requested by the planning director or the planning commission, to submit
additional information to clarify the relationship of the allocation application, or any
elements thereof, to the evaluation criteria. If such a request is made, the planning
director shall identify the specific evaluation criterion at issue and the specific
information needed and shall communicate such request to the applicant.
(2) Upon receiving a request from the planning director for such additional information,
the applicant may provide such information; or the applicant may decline to provide
such information and allow the allocation application to be evaluated as submitted.
(k) Revisions of building permit applications requiring the NROGO allocation(s). A building
permit application for a proposed nonresidential floor area requiring a NROGO allocation
must be approved prior to submitting a NROGO application. In the event that the Florida
Building Code is amended between the date in which a NROGO application is submitted
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and the date in which a building permit requiring the NROGO allocation(s) applied for is
issued (which follows the date in which the required allocation(s) is awarded), if
necessary, the applicant shall submit plan revisions to the building permit application
demonstrating full compliance with the current Florida Building Code in effect. These
plan revisions shall be submitted within 180 days of the NROGO allocation award date or
the applicant shall forfeit the NROGO allocation award. Following receipt of the plan
revisions, the building department shall review the revisions as if the application is new
(however retaining the same building permit number for administrative purposes), based
on the building code, for compliance prior to issuance of the building permit requiring the
NROGO allocation(s) by the building official. Such mandatory revisions and review are
limited to the modifications necessary to demonstrate compliance with the Florida
Building Code in effect at the time of building permit issuance. This is not applicable to
the Land Development Code.
(1) Application for allocation by way of the NROGO bank. The planning and environmental
resources department (department) shall maintain a record of NROGO allocations that
were not awarded in annual NROGO allocation periods. This shall be known as the
NROGO bank. As of July 12, 2012 ( NROGO Year 20), the NROGO bank for each
ROGO subarea was as follows:
Big Pine Key and No Name Key ROGO
subarea
4,339 square feet
Upper Keys & Lower Keys ROGO subareas
389,991 square feet
Prior to the opening date of NROGO Year 22 (July 13, 2013), the department shall
determine the precise balance of the NROGO bank. Commencing NROGO Year 22 (July
13, 2013 through July 12, 2014), the NROGO bank shall be proportionally distributed
between the three ROGO subareas: 1) Upper Keys, 2) Lower Keys and 3) Big Pine/No
Name Keys. The NROGO bank shall be maintained by an account per each ROGO
subarea and a general account for the Upper and Lower Keys ROGO subarea.
Upon availability of nonresidential floor area in a given and applicable ROGO account
within the NROGO bank, the department shall accept applications from applicants
requesting the banked nonresidential floor area. The NROGO application must be
accompanied by an approved building permit application in order to be considered. The
planning director, or his or her designee, shall review the application for completeness. If
the application is determined to be incomplete, the planning director shall reject the
application and notify the applicant of such rejection, and the reasons therefor, within 30
days. The application shall be submitted in a form provided by the department and meet
the same requirements for a standard NROGO application as set forth in subsection 138 -
52(a). Each application shall be accompanied by a nonrefundable processing fee as
established by resolution of the board of county commissioners.
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Section 3. Section 138 -53 of the Monroe County Code shall be amended as follows:
Sec. 138 -53. Evaluation procedures for nonresidential floor area allocation.
(a) Initial evaluation of allocation applications. Upon receipt of completed NROGO
allocation applications, the planning director or his or her designee shall evaluate the
allocation applications pursuant to the evaluation criteria set forth in section 138 -55.
(1) Within 30 days of an allocation date, unless otherwise extended by the planning
commission, the planning director shall:
a. Complete the evaluation of all allocation applications submitted during the
relevant allocation period;
b. Total the amount of square footage for which allocation applications have been
received for each ROGO subarea (Upper Keys; Lower Keys; and Big Pine
Key/No Name Key); and
c. Rank the allocation applications, in descending order from the highest evaluation
point total to the lowest for each ROGO subarea.
(b) Public hearings and allocation awards. Upon completion of the evaluation ranking report
and/or recommendation, the planning director shall schedule and notice a public hearing
by the planning commission pursuant to otherwise applicable regulations.
(1) At or prior to the public hearing, the planning commission may request, and the
planning director shall supply, copies of the allocation applications and the evaluation
worksheets.
(2) Upon review of the allocation applications and evaluation worksheets, the planning
commission may adjust the points awarded for meeting a particular criterion, adjust
the rankings as a result of changes in points awarded, or make such other changes as
may be appropriate and justified.
(3) The basis for planning commission changes shall be specified in the form of a motion
to adopt the allocation rankings and may include the following:
a. A mistake in the application of one or more of the evaluation criteria; and
b. A misinterpretation of the applicability of an evaluation criterion.
(4) The public, including, but not limited to, applicants for allocation awards, shall be
permitted to testify at the public hearing. Applicants may offer testimony about their
applications or other applications; however, in no event may an applicant offer
modifications to an application that could change the points awarded or the ranking of
the application.
(5) At the conclusion of the public hearing, the planning commission may:
a. Move to accept the evaluation rankings as submitted by the planning director;
b. Move to accept the evaluation rankings as may be modified as a result of the
public hearing;
c. Move to continue the public hearing to take additional public testimony;
d. Move to close the public hearing but to defer action on the evaluation rankings
pending receipt of additional information; and
e. Move to reject the evaluation rankings.
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(6) The planning commission shall finalize the evaluation rankings within 60 days
following initial receipt of the planning director evaluation ranking, report and
recommendation.
(c) Notification to applicants. Upon finalization of the evaluation rankings by the planning
commission, notice of the rankings shall be posted at the planning department offices.
(1) Applicants who receive allocation awards shall be further notified by certified mail,
return receipt requested. Upon receipt of notification of an allocation award, the
applicant may request issuance of a building permit for the applicable development of
the allocated nonresidential floor area.
(2) Applicants who fail to receive allocation awards shall be further notified by certified
mail, return receipt requested; without further action by such applicants nor the
payment of any additional fee, such applications shall remain in the NROGO system
for reconsideration at the next allocation in the current or following annual allocation
period.
(d) Identical rankings. If two or more allocation applications in a given size classification
receive an identical evaluation ranking and both (or all) cannot be granted allocation
awards within the allocation period, the planning commission shall award the allocation
to the completed application first submitted, based on the controlling date of the
application. If two or more such completed applications were submitted with the same
controlling date, the available allocation shall be awarded to the application with the
fewest number of negative points.
(e)Allocation by way of the NROGO bank. Concerning applications submitted pursuant to
section 138 - 52(1), if nonresidential floor area is available in a NROGO subarea account
within the NROGO bank, upon receipt of completed application, the planning director
shall evaluate the application pursuant to the evaluation criteria set forth in section 138-
55.
(1) Public hearing. Excluding reservations granted by the board of county
commissioners, the planning director shall schedule and notice the application for
review and decision by the planning commission at a public hearing.
a. Allocation by planning commission. Allocations by way of the NROGO bank
shall only be awarded four times per NROGO year, on the same public hearing
dates in which annual NROGO allocations are awarded per section 138- 53(b).
Such allocations shall be awarded pursuant to subsections (e)(2) through (e)(12).
b. Reservation of allocation by the board of county commissioners. Notwithstanding
provisions of subsections (e)(2) through (e)(12), the board of county
commissioners may, for projects in excess of 10,000 square feet of nonresidential
floor area, reserve by resolution, for up to eighteen (18) months, some or all of the
available nonresidential floor area within an applicable account within the
NROGO bank for a specified development. Prior to the public hearing in which
the reservation is to be considered, the applicant shall a) if necessary, have
entered into a development agreement with Monroe County for the development
requiring the nonresidential floor area and b) if required, have been issued a
conditional use permit for the development requiring the nonresidential floor area.
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Building permits for these reserved allocations shall be picked up within six
months of the effective reservation date, unless otherwise authorized by the board
of county commissioners in its resolution. The board of county commissioners
may, at its discretion, place conditions on any reservation as it deems appropriate.
(2) NROGO accounts. Beginning July 13, 2013, the NROGO bank shall consist of four
accounts. The first three accounts shall each represent a ROGO subarea: 1) Upper
Keys, 2) Lower Keys, and 3) Big Pine Key and No Name Key. The boundaries of the
ROGO subareas are defined in section 138- 20(c). The fourth account shall represent a
general or joint account for the Upper Keys and Lower Keys ROGO subareas. An
applicant may only request nonresidential floor area from the account associated with
the ROGO subarea in which the subject property is located. As of July 13, 2013,
pursuant to section 138- 51(a), the distribution of the annual NROGO allocation shall
be distributed to each of the ROGO subareas based on the number of residential
dwelling unit permits made available for each of the ROGO subareas. The unused
remainders of nonresidential floor area from the annual NROGO allocation for each
of the ROGO subareas shall roll over into the applicable subarea NROGO accounts
within the NROGO bank each year; however, not the general account for the Upper
Keys and Lower Keys ROGO subareas. Nonresidential floor area within a given
subarea NROGO account shall be available for eligible developments within the
boundaries of that subarea. On the opening day of each subsequent NROGO year
(July 13), excluding the reserves provided for in subsection (e)(4), the non - reserve
balances of the Upper Keys ROGO subarea account and the Lower Keys ROGO
subarea account shall be returned to the general account for the Upper Keys and
Lower Keys ROGO subareas pursuant to subsection (e)(14). After the return to the
general NROGO account, nonresidential floor area within the general NROGO
account shall be available for eligible developments within the boundaries of either
the Upper Keys or Lower Keys subareas.
(3) Eligibility per tier designation. Only applications for developments within Tier III
designated areas shall be eligible for allocation by way of the NROGO bank.
(4) NROGO subarea account reserves. The Upper Keys and Lower Keys NROGO
subarea accounts shall maintain reserves of 20,000 square feet each. The Big
Pine/No Name Key subarea account is not required to maintain a reserve.
(5) Noncompetitive applications. If the total amount of nonresidential floor area
requested in a single application or cumulatively in multiple applications by separate
applicants is equal to or less than the amount available in a NROGO subarea account
within the NROGO bank (excluding reserved floor area), the planning commission
may grant the total amount of nonresidential floor area requested in the application(s)
to the applicant(s).
(6) Competitive applications. If the total amount of nonresidential floor area requested in
a single application or cumulatively in multiple applications by separate applicants is
greater than that the total amount available in a NROGO subarea account within the
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NROGO bank (excluding reserved floor area), the planning director shall submit an
evaluation report to the planning commission indicating the evaluation rankings. The
planning commission shall award available nonresidential floor area in a NROGO
subarea account (excluding reserved floor area) to the applicant with most points
pursuant to section 138 -55. If the highest scoring applicant does not request the entire
amount available in a NROGO subarea account within the NROGO bank, the
planning commission shall award the remaining available nonresidential floor area in
a NROGO subarea account within the NROGO bank (excluding reserved floor area)
to the application with the second highest score and so on until a NROGO subarea
account within the NROGO bank reaches its balance (excluding reserves)
(7) Single application requesting more than the balance in a NROGO subarea account.
If there are not any competing applications, the planning commission may grant the
total amount of nonresidential floor area available in a NROGO subarea account
(excluding reserved floor area) to the applicant and require the applicant to acquire
the remaining nonresidential floor area through the NROGO permit allocation
system.
(8) De minimis applications. Square footage for de minimis applications may be
deducted from the annual NROGO allocation or the NROGO bank. Nonresidential
floor area permitted via de minimis shall be deducted from the NROGO subarea
account in which the property is located.
(9) Testimony. The public, including but not limited to applicants, shall be permitted to
testify at the public hearing. Applicants may offer testimony about their applications
or other applications; however, in no event may an applicant offer modifications to an
application that could change the points awarded or the ranking of the application.
(10) Decision by the planning commission. At the conclusion of the public hearing, the
planning commission may:
a. If applicable, move to accept the evaluation rankings as submitted by the planning
director;
b. If applicable, move to accept the evaluation rankings as may be modified as a
result of the public hearing;
c. Move to continue the public hearing to take additional public testimony;
d. Move to close the public hearing but to defer action on the evaluation rankings
pending receipt of additional information; and
e. Move to reject the evaluation rankings.
Within 60 days of the public hearing, the planning commission shall render its final
decision on an application for an allocation by way of the NROGO bank by
resolution. If an approval, the resolution shall be issued and pass all relevant appeal
periods prior to issuance of a building permit requiring the nonresidential floor area
awarded by the resolution.
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(11) Opening balances for the first three subarea NROGO accounts as of NROGO Year
22 (July 13, 2013). The opening balances for each subarea NROGO account shall be
determined and calculated by the planning department based on available and unused
annual nonresidential floor area from NROGO Years 10 through 21.
(12) Opening balance for the fourth general NROGO account for the Upper Keys and
Lower Keys ROGO subareas as of NROGO Year 22 (July 13, 2013). The opening
balance for the general NROGO account for the Upper Keys and Lower Keys ROGO
subareas shall be zero (0) square feet of nonresidential floor area. The account may
have nonresidential floor area distributed to it on the opening date of each subsequent
NROGO Year thereafter pursuant to subsection (e)(15).
(13) Return to the general NROGO account for the Upper Keys and Lower Keys
ROGO subareas. Commencing NROGO Year 23 (July 13, 2014), on the opening date
of each NROGO Year, excluding the reserves provided for in subsection (e)(4), the
non - reserve balances of the Upper Keys ROGO subarea account and the Lower Keys
ROGO subarea account shall be returned to the single, general or joint account for the
Upper Keys and Lower Keys ROGO subareas.
(14) Notification to the general public of the availability of the NROGO account
balances. For each of the four planning commission public hearings in a given
NROGO Year in which NROGO allocations may be awarded, the planning
department shall provide a detailed report to the planning commission and general
public providing the exact balances of nonresidential floor area that exist within each
the four accounts of the NROGO bank. In addition, these balances shall be provided
in the newspaper advertisements for the planning commission public hearings (as
required by section 110 -5) in which NROGO allocation awards may be awarded.
Section 4. Application.
This ordinance applies to applications submitted on or after the commencement of Period 1 of
NROGO Year 22, which is July 15, 2013. In the event that the ordinance is not effective as
provided in Section 8 and 10 below, this ordinance shall apply to applications submitted on or
after the commencement of Period 2 of NROGO Year 22, which is January 14, 2014.
Section 5. Severability.
If any section, paragraph, subdivision, clause, sentence or provision of this ordinance shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
impair, invalidate, or nullify the remainder of this ordinance, but the effect thereof shall be
confined to the section, paragraph, subdivision, clause, sentence, or provision immediately
involved in the controversy in which such judgment or decree shall be rendered.
Section 6. Conflicting Provisions.
Page 13 of 14
All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the
extent of said conflict.
Section 7. Transmittal.
This ordinance shall be transmitted to the Florida State Land Planning Agency as required by F.S.
380.05 (11) and F.S. 380.0552(9).
Section 8. Filing.
This ordinance shall be filed in the Office of the Secretary of the State of Florida but shall not
become effective pursuant to Section 10 until a final order is issued according to F.S. 380.05(6)
by the Florida State Land Planning Agency or Administration Commission approving the
ordinance, and if the final order is challenged, until the challenge to the order is resolved
pursuant to F.S. Chapter 120.
Section 9. Inclusion in the Monroe County Code.
The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances
of the County of Monroe, Florida, as an addition to amendment thereto, and shall be
appropriately renumbered to conform to the uniform marking system of the Code.
Section 10. Effective Date.
This ordinance shall become effective as provided by law and stated above.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida
at a regular meeting held on the 17th day of April , 2013.
Mayor George Neugent
Mayor Pro Tem Heather Carruthers
Commissioner Danny Kolhage
Commissioner Sylvia Murphy
Commissioner David Rice
MONROE COUNTY BOARD OF COUNTY
Attest: Amy Heavilin, Clerk
By
Deputy Clerk
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Page 14 of 14
MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET, SUITE 101
KEY WEST, FLORIDA 33040
TEL. (305) 294-4641
FAX (305) 295 -3663
BRANCH OFFICE:
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289 -6025
Ms. Liz Cloud, Program Administrator
Administrative Code & Weekly
R.A. Gray Building
500 S Bronough Street
Tallahassee FL 32399 -0250
April 18, 2013
BRANCH OFFICE:
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852 -7145
FAX (305) 852 -7146
ROTH BUILDING
50 HIGH POINT ROAD
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852 -7145
FAX(305)853 -7440
Via Certified Mail 7012 1010 0003 4990 5170
Dear Ms. Cloud,
Enclosed please find certified copies:
Ordinance No. 019 -2013 to amend regulations within MCC Chapter 138, Article III,
which concern the Nonresidential Rate of Growth Ordinance ( NROGO) to simplify the NROGO
permit allocation system process; allow applicants to acquire NROGO awards in less time (up to
4 x a year vs. up to 2 x a year); increase the maximum amount of de minimis expansion from 100
sq. ft. to 1,000 sq. ft. for new and existing nonresidential developments with an allocation
awarded by building permit (no competition); and increase the maximum amount of a NROGO
allocation from 2,500 sq. ft. to 10,000 sq. ft. per allocation quarter.
Ordinance No. 020 -2013 to amend regulations within MCC Chapter 138, Article III,
which concern the Nonresidential Rate of Growth Ordinance ( NROGO). The main intent of the
ordinance is to establish a codified mechanism to allocate nonresidential floor area that went
unallocated in previous years or has been reclaimed.
These Ordinances were adopted by the Monroe County Board of County Commissioners
at a Regular Meeting, held in formal session, on April 17, 2013. Please file for the record.
Should you have any questions please feel free to contact me at (305) 295 -3130.
Respectfully submitted,
Amy Heavilin, CPA,
Clerk of the Circuit Court
and ex officio Clerkof the
Board of County Commissioners
by: Pamela G. Hancock, D. C.
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CLERK OF THE CIRCUIT COURT
MONROE COUNTY
www.clerk -of- the- court.com
cc: County Attorney via e -mail
Growth Management via a -mail & courier
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if YES, enter delivery address below:
Ms. Liz Cloud, Program Administr or
Administrative Code & Weekly
R.A. Gray Building
500 S Bronough Street
3. Service Type
Tallahassee FL 32399 - 025 0
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PS Form 3811, February 2004 Domestic Return Receipt
,
RICK SCOTT KEN DETZNER
Governor Secretary of State
Dear Ms. Heavilin:
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your letter
dated April 18, 2013 and certified copies of Monroe County Ordinance Nos. 019 -2013 and 020 -2013 which
were filed in this office on April 24, 2013.
Sincerely,
Liz Cloud
Program Administrator
LC /elr
R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399 -0250
Telephone: (850) 245 -6270 • Facsimile: (850) 488 -9879
www.dos.state.fl.us
To
April 24, 2013
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Honorable Amy Heavilin
Clerk of the Circuit Court
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Attention: Pamela G. Hancock, Deputy Clerk
Dear Ms. Heavilin:
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your letter
dated April 18, 2013 and certified copies of Monroe County Ordinance Nos. 019 -2013 and 020 -2013 which
were filed in this office on April 24, 2013.
Sincerely,
Liz Cloud
Program Administrator
LC /elr
R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399 -0250
Telephone: (850) 245 -6270 • Facsimile: (850) 488 -9879
www.dos.state.fl.us
FINAL ORDER NO. DEO -13 -050
STATE OF FLORIDA
DEPARTMENT OF ECONOMIC OPPORTUNITY
In re:
A LAND DEVELOPMENT REGULATION
ADOPTED BY MONROE COUNTY, FLORIDA,
ORDINANCE NO. 020 -2013 =�
CD
FINAL ORDER
APPROVING MONROE COUNTY ORDINANCE NO. 020 -2043 s; o
The Department of Economic Opportunity ( "Department ") hereby issues its Final - drder,
pursuant to §§ 380.05(6) and 380.0552(9), Fla. Stat. (2012), approving land development
regulations adopted by Monroe County, Florida, Ordinance No. 020 -2013 (the "Ordinance ")
FINDINGS OF FACT
1. The Florida Keys Area is designated by § 380.0552, Fla. Stat., as an area of
critical state concern. Monroe County is a local government within the Florida Keys Area.
2. The Ordinance was adopted by Monroe County on April 17, 2013, and rendered
to the Department on April 24, 2013.
3. The Ordinance amends the following Monroe County Code: Section 138 -47,
Nonresidential Rate of Growth Ordinance; Section 138 -52, Application Procedures for NROGO;
and Section 138 -53, Evaluation Procedures for Nonresidential Floor Area Allocations. The
Ordinance adds definitions of "nonresidential ROGO bank" and "nonresidential ROGO
account "; establishes an application process for reallocating NROGO floor area that went
unallocated in previous years by way of the NROGO bank; creates NROGO accounts for the
Upper Keys, Lower Keys, and Big Pine/No Name Keys; creates a fourth general NROGO
account for the Upper and Lower Keys ROGO subareas; identifies the square footage available
in the NROGO bank in each ROGO subarea; provides that only development within Tier III
1
FINAL ORDER NO. DEO -13 -050
designated areas are eligible for an NROGO allocation by way of the NROGO bank; and
establishes procedures for applying for allocations from the NROGO bank and for the planning
commission or board of county commissioners to issue NROGO allocations or reservations by
way of the NROGO bank.
CONCLUSIONS OF LAW
4. The Department is required to approve or reject land development regulations that
are adopted by any local government in an area of critical state concern. §§ 380.05(6) and (11)
and § 380.0552(9), Fla. Stat.
5. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development of land. § 380.031(8), Fla. Stat. The regulations
adopted by the Ordinance are land development regulations.
6. All land development regulations enacted, amended, or rescinded within an area
of critical state concern must be consistent with the principles for guiding development for that
area. §§ 380.05(6) and 380.0552(9), Fla. Stat. The Principles for Guiding Development for the
Florida Keys Area of Critical State Concern are set forth in § 380.0552(7), Fla. Stat.
7. The Ordinance is consistent with the Principles for Guiding Development as a
whole, and specifically furthers the following Principle in § 380.0552(7), Fla. Stat.:
(a) Strengthening local government capabilities for managing land
use and development so that local government is able to achieve
these objectives without the continuation of the area of critical
state concern designation.
(d) Ensuring the maximum well -being of the Florida Keys and its
citizens through sound economic development.
8. The Ordinance is consistent with the Monroe County Comprehensive Plan and
furthers Future Land Use Element Objective 101.3 and Policies 101.3.1 and 101.3.3.
2
FINAL ORDER NO. DEO -13 -050
WHEREFORE, IT IS ORDERED that Monroe County Ordinance No. 020 -2013 is found
to be consistent with the Principles for Guiding Development of the Florida Keys Area of
Critical State Concern and is hereby APPROVED
This Order becomes effective 21 days after publication in the Florida Administrative
Register unless a petition is timely filed as described in the Notice of Administrative Rights
below.
DONE AND ORDERED in Tallahassee, Leon County,
Qq
William B. Killi sworth, Director
Division of Co unity Development
Department of Economic Opportunity
NOTICE OF ADMINISTRATIVE RIGHTS
ANY PERSON WHOSE SUBSTANTIAL INTERESTS ARE AFFECTED BY THIS
ORDER HAS THE OPPORTUNITY FOR AN ADMINISTRATIVE PROCEEDING
PURSUANT TO SECTION 120.569, FLORIDA STATUTES, REGARDING THE AGENCY'S
ACTION. DEPENDING UPON WHETHER YOU ALLEGE ANY DISPUTED ISSUE OF
MATERIAL FACT IN YOUR PETITION REQUESTING AN ADMINISTRATIVE
PROCEEDING, YOU ARE ENTITLED TO EITHER AN INFORMAL PROCEEDING OR A
FORMAL HEARING.
IF YOUR PETITION FOR HEARING DOES NOT ALLEGE ANY DISPUTED
ISSUE OF MATERIAL FACT CONTAINED IN THE DEPARTMENT'S ACTION, THEN
THE ADMINISTRATIVE PROCEEDING WILL BE AN INFORMAL ONE, CONDUCTED
PURSUANT TO SECTIONS 120.569 AND 120.57(2) FLORIDA STATUTES, AND
CHAPTER 28 -106, PARTS I AND III, FLORIDA ADMINISTRATIVE CODE. IN AN
INFORMAL ADMINISTRATIVE PROCEEDING, YOU MAY BE REPRESENTED BY
COUNSEL OR BY A QUALIFIED REPRESENTATIVE, AND YOU MAY PRESENT
WRITTEN OR ORAL EVIDENCE IN OPPOSITION TO THE DEPARTMENT'S ACTION OR
REFUSAL TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
3
FINAL ORDER NO. DEO -13 -050
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28 -106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, CONDUCT CROSS - EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS, AND
FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
ECONOMIC OPPORTUNITY A WRITTEN PLEADING ENTITLED, "PETITION FOR
ADMINISTRATIVE PROCEEDINGS" WITHIN 21 CALENDAR DAYS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY:
AGENCY CLERK
DEPARTMENT OF ECONOMIC OPPORTUNITY
OFFICE OF THE GENERAL COUNSEL
107 EAST MADISON STREET, MSC 110
TALLAHASSEE, FLORIDA 32399 -4128
Telephone: 850- 245 -7150
Fax Number 850- 921 -3230
Email: Miriam.Snipes @deo.myflorida.com
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28- 106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28- 106.201(2), FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDIATION. A
REQUEST FOR MEDIATION MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28- 106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSING MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH THE
AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL ORDER.
M
FINAL ORDER NO. DEO -13 -050
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing Final Order has been filed with
the undersigned designated Agency Clerk, and that true and correct copies have been furnished
to the persons listed below by the methods indicated this e �V -5 ray f May, 2013.
Miriam Snipes, Agency flerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399 -4128
Telephone: 850 -717 -8531
By U.S. Mail
The Honorable George Neugent
Mayor, Monroe County
500 Whitehead Street
Key West, FL 33040
Amy Heavilin
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West, FL 33040
Christine Hurley, Director
Monroe County Growth Management Division
2798 Overseas Highway, Suite 400
Marathon, FL 33050
By Hand Delivery or Interagency Mail
Rebecca Jetton, ACSC Administrator, DEO Tallahassee
Sherry A. Spiers, Assistant General Counsel, DEO Tallahassee
5