Ordinance 042-20132
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ORDINANCE NO. 042 2013
AN ORDINANCE BY THE MONROE COUNTY BOARD OF
COUNTY COMMISSIONERS AMENDING MONROE
COUNTY CODE SECTION 101 -1, DEFINITIONS, TO
REVISE THE DEFINITION OF COASTAL BARRIER
RESOURCES SYSTEM (CBRS) TO BE CONSISTENT
WITH THE FEDERAL COASTAL BARRIER RESOURCES
ACT; AMENDING SECTION 130 -122, COASTAL BARRIER
RESOURCES SYSTEM OVERLAY DISTRICT TO
DISTINGUISH BETWEEN FEDERAL AND COUNTY
PURPOSES; REVISING THE APPLICATION OF THE
CBRS OVERLAY DISTRICT TO BE CONSISTENT WITH
CBRS OBJECTIVES AND POLICIES OF THE MONROE
COUNTY YEAR 2010 COMPREHENSIVE PLAN;
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, the County has adopted Comprehensive Plan Policies and Land
Development Code (LDC) regulations which both discourage and prohibit the extension of
utilities to or through areas designated as units of the Coastal Barrier Resources System; and
WHEREAS, on February 26, 2013, the BOCC approved a contract amendment for
professional services with Keith and Schnars (K &S), P.A., for additional services to evaluate the
CBRS Comprehensive Plan policies to determine whether they add any additional protection to
land over and above Comprehensive Plan and LDC provisions that govern the Tier System,
including an analysis of the percentage of land and number of parcels within the CBRS units by
tier designation; whether infrastructure extension to outlying neighborhoods or other platted
areas increases a parcel's likelihood of being able to obtain a favorable recommendation, based
on tier criteria, to change a tier classification from Tier I to Tier II, III, or III -A; and additional
analysis based on suggestions from the public; and
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WHEREAS, at a regularly scheduled meeting held on the 15 day of May, 2013, the
BOCC discussed the results of the "Analysis of Coastal Barrier Resources System Policies and
Regulations in Monroe County, Florida," data and analysis, prepared for the BOCC by K &S,
regarding the CBRS and the County's CBRS Comprehensive Plan policies and LDC; and
WHEREAS, in summary, the K &S report found if the CBRS overlay ordinance was
eliminated, CBRS system units would still be protected from development by the County's tier
system; and
WHEREAS, the K &S report recommended the County amend the LDC and
Comprehensive Plan through a phased approach to continue to ensure that development in the
CBRS is discouraged (maintain the Comprehensive Plan's "discourage" policy); and
WHEREAS, at the May 15, 2013 meeting the BOCC directed Growth Management staff
to proceed with the recommendations of the report, including phase 1 and phase 2 amendments
to the Comprehensive Plan and the LDC; and
WHEREAS, the Monroe County Development Review Committee considered the
proposed amendment at a regularly scheduled meeting held on the 25 day of June, 2013 and
recommended approval; and
WHEREAS, at a regularly scheduled meeting held on the 31 day of July, 2013, the
Monroe County Planning Commission held a public hearing to consider, review and receive
public comment for the proposed amendment to the Monroe County Code and recommended
approval of the amendment; and
WHEREAS, at a regularly scheduled meeting held on the 17 day of September, 2013,
the BOCC continued the proposed amendment to the Monroe County Code to the next BOCC
public hearing; and
WHEREAS, at a regularly scheduled meeting held on the 16 day of October, 2013, the
BOCC held a public hearing to consider, review and receive public comment for a proposed
amendment to the Monroe County Code; and
WHEREAS, the proposed amendment is consistent with the provisions and intent of the
Monroe County Comprehensive Plan; and
WHEREAS, the proposed amendment is necessary due to new issues and recognition of
a need for additional detail or comprehensiveness as required by Section 102 -158 of the Monroe
County Code; and
WHEREAS, the proposed amendment is consistent with the Principles for Guiding
Development for the Florida Keys Area of Critical State Concern, Section 380.0552(7), Florida
Statutes;
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NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
Section 1. The Monroe County Code is amended as follows:
Sec. 101 -1. — Definitions.
Coastal Barrier Resources System (CBRS) means those 15 CBRS system units, excluding
Otherwise Protected Areas (OPAs), in the County, except for the improved port property
along the Safe Harbor entrance channel within system unit FL -57 as shown on the map
attached as Exhibit A and incorporated herein, designated under the federal Coastal Barrier
Resources Act (CBRA) of 1982, comprising relatively undeveloped coastal barriers and all
associated aquatic habitats including wetlands, marshes, estuaries, inlets and near shore
waters. System units are generally comprised of lands that were relatively undeveloped at the
time of their designation within the CBRS. The boundaries of these units are designated by
the U.S. Department of the Interior and the boundaries are generally intended to follow
geomorphic, development, or cultural features. Most new federal expenditures and financial
assistance, including flood insurance, are restricted within system units. System units are
identified and depicted on the current flood insurance rate maps approved by the Federal
Emergency Management Agency. Only the United States Congress can revise CBRS
boundaries.
Sec. 130 -122. — Coastal barrier resources system overlay district (CBRS).
(a) Federal Purpose. The purpose of the federal Coastal Barrier Resources Act (CBRA) is
to discourage further development in certain undeveloped portions of coastal barriers and
remove the federal incentive to develop these areas. The federal law limits new federal
expenditures and financial assistance, including flood insurance. These federal public
expenditure limitations have the effect of discouraging development in areas the U.S.
Department of the Interior designates as coastal barriers within the Coastal Barrier Resources
System (CBRS). The CBRS protects coastal areas that serve as barriers against wind and
tidal forces caused by coastal storms, and serve as habitat for aquatic species.
(b) County Purpose. The County includes the federal CBRS system units, excluding OPAs,
located within unincorporated Monroe County, except for the improved port property along
the Safe Harbor entrance channel within system unit FL -57, as an overlay district. The
purpose of the County's coastal barrier resources system overlay district is to implement the
policies of the comprehensive plan by discouraging the extension and expansion of specific
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types of public facilities, including potable water, and/or electric services and /or telephone
services to lands designated as a system unit of the CBRS.
(c) Application. The coastal barrier resources system overlay district shall be overlaid on all
areas, except for the improved port property along the Safe Harbor entrance channel within
system unit FL -57, within federally designated boundaries of a CBRS system unit on current
(February 18, 2005) flood insurance rate maps approved by the Federal Emergency
Management Agency, which are hereby adopted by reference and declared part of this
chapter.
Within this overlay district, the transmission and /or collection lines of the following types of
public facilities, including potable water, and/or electric services and/or telephone services
shall be discouraged from extension or expansion: potable water, electricity, and telephone.
The maintenance, restoration, replacement and upgrading of existing public facilities,
including potable water, and/or electric services and /or telephone services is not discouraged.
The County may allow extension or expansion of these facilities and services if consistent
with Comprehensive Plan Policy 101.12.4. This discouragement shall not apply to
wastewater nutrient reduction cluster systems or central wastewater treatment collection
systems, which are encouraged.
For vacant property within the CBRS overlay district, it is presumed that non -CBRS lands
are available for development and that development within CBRS system units can be
avoided. This presumption may be rebutted only if the owner(s) of the vacant CBRS property
obtains approval through the County's ROGO/NROGO /Tier system.
(d) County Public Improvements. Except for wastewater systems, within the CBRS overlay
district, County public tax dollars and/or County financial assistance should not be used for
new public facilities, including potable water, and /or electric services and/or telephone
services, unless an analysis is conducted pursuant to Policy 101.12.4, and:
1. Based on the analysis, the BOCC makes a specific finding that such new
improvements are to protect the public health, safety and welfare, no reasonable
alternatives exist to the proposed location, and the proposed location is approved
by a supermajority of the BOCC; and/or
2. Such new improvements and/or financial assistance are consistent with the federal
exceptions pursuant to section 6 of the CBRA.
Section 2. 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.
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Mayor George Neugent
Yes
Mayor pro tem Heather Carruthers
Yes
Commissioner Danny L. Kolhage
Yes
Commissioner David Rice
Yes
Commissioner Sylvia Murphy
Yes
COUNTY COMMISSIONERS
By A vr v - 4- Y e
Mayor George Neugent
Section 3. Conflicting Provisions. In the case of direct conflict between any provision of this
ordinance and a portion or provision of any appropriate federal, state, or County law, rule code
or regulation, the more restrictive shall apply.
Section 4. Transmittal. This ordinance 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 5. Filing. This ordinance shall be filed in the Office of the Secretary of the State of
Florida but shall not become effective until a notice of Final Order is issued by the Florida State
Land Planning Agency or Administration Commission approving the ordinance and any
challenge to the order is resolved.
Section 6. 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 7. Effective Date. This ordinance shall become effective as provided by law and stated
above. This ordinance applies to any permit, and/or other development approval application
submitted after the effective date.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting held on the 16th day of October , 2013.
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FLORIDA DEPARTMENT O STATE
RICK SCOTT
Governor
November 18, 2013
Honorable Amy Heavilin
Clerk of the Circuit Court
Monroe County
500 Whitehead Street, Suite 101
Key West, Florida 33040
Attention: Vitia Fernandez, Deputy Clerk
Dear Ms. Heavilin:
KEN DETZNER
Secretary of State
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your
electronic copy of Monroe County Ordinance No. 042 -2013, which was filed in this office on November
18, 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 -14 -003
0 STATE OF FLORIDA
DEPARTMENT OF ECONOMIC OPPORTUNITY
In re: A LAND DEVELOPMENT REGULATION
ADOPTED BY MONROE COUNTY, FLORIDA,
ORDINANCE NO. 042 -2013
FINAL ORDER
APPROVING MONROE COUNTY ORDINANCE NO. 042-2013
The Department of Economic Opportunity ( "Department ") hereby issues its Final Order,
pursuant to §§ 380.05(6) and 380.0552(9), Fla. Stat., approving land development regulations
adopted by Monroe County, Florida, Ordinance No. 042 -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 October 16, 2013, and
rendered to the Department on December 4, 2013.
3. The Ordinance amends the definition of "Coastal Barrier Resource System" in
Section 101.1 of the Monroe County Code to be consistent with the federal Coastal Barrier
Resources Act. The Ordinance also amends Section 130 -122 of the Monroe County Code,
entitled "Coastal barrier resources system overlay district (CBRS)," to describe the federal
purpose for the Coastal Barrier Resources Act, clarify the County's purpose for including land in
the CBRS land use district overlay, and implement policies in the County's Comprehensive Plan
to discourage new development and the placement of public facilities within the CBRS.
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Final Order No. DEO -14 -003
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:
(a) Strengthening local government capabilities for managing land
use and development so that local government is able to achieve
these objectives without continuing the area of critical state
concern designation.
(b) Protecting shoreline and marine resources, including
mangroves, coral reef formations, seagrass beds, wetlands, fish and
wildlife, and their habitat.
(e) Limiting the adverse impacts of development on the quality of
water throughout the Florida Keys.
(k) Limiting the adverse impacts of public investments on the
environmental resources of the Florida Keys.
8. The Ordinance is consistent with the following provisions in the Monroe County
Comprehensive Plan related to the Coastal Barrier Resources System: Objective 102.8, Policies
102.8.1 through 102.8.5, Objective 209.3, and Policy 217.4.2.
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Final Order No. DEO -14 -003
® WHEREFORE, IT IS ORDERED that Monroe County Ordinance No. 042 -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, Florida.
WILLIAM B.ILLINGSWORTH
Director, Diviskn of Community 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.
Final Order No. DEO -14 -003
• 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 DURING NORMAL
BUSINESS HOURS 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: 850- 921 -3230
EMAIL: James.Bellflower @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.
•
Final Order No. DEO -14 -003
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 method indicated this day of January, 2014.
ames W. Bellflower, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 32399 -4128
By U.S. Mail
The Honorable George Neugent
Mayor, Monroe County
500 Whitehead Street
Key West, FL 33040
Amy Heavilin, Clerk
Monroe County Board of County Commissioners
500 Whitehead Street
Key West, FL 33040
By Electronic Mail:
Christine Hurley, Director
Monroe County Growth Management Division
2798 Overseas Highway, Suite 400
Marathon, FL 33050
email: Hurley - Chri stine @MonroeCounty- F1.Gov
Rebecca Jetton, DEO
email: Rebecca.Jetton @deo.myflorida.com
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