Ordinance 043-20131
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6 MONROE COUNTY, FLORIDA
7 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
8 ORDINANCE NO. 043 - 2013
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10 AN ORDINANCE BY THE MONROE COUNTY BOARD
11 OF COUNTY COMMISSIONERS AMENDING MONROE
12 COUNTY CODE SECTION 122 -2(b)3 GENERAL
13 PROVISIONS, BASIS FOR ESTABLISHING SPECIAL
14 FLOOD HARZARD MAPS, SPECIES ASSESSMENT
15 GUIDES (SAGS); PROVIDING A NEW DATE FOR
16 REVISED SPECIES ASSESSMENT GUIDES FOR
17 PERMIT REFERRAL PROCESS DETERMINATIONS;
18 PROVIDING FOR SEVERABILITY; PROVIDING FOR
19 REPEAL OF CONFLICTING PROVISIONS;
20 PROVIDING FOR TRANSMITTAL TO THE STATE
21 LAND PLANNING AGENCY AND THE SECRETARY OF
22 STATE; PROVIDING FOR CODIFICATION;
23 PROVIDING FOR AN EFFECTIVE DATE.
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25 WHEREAS, in 1990 the National Wildlife Federation, Florida Wildlife Federation, and the
26 Defenders of Wildlife filed suit against the Federal Emergency Management Agency (FEMA)
27 claiming FEMA was not consulting with the U.S. Fish and Wildlife Service (FWS or Service) as
28 required by the Endangered Species Act in its administration of the National Flood Insurance
29 Program (NFIP) in Monroe County, Florida; and
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31 WHEREAS, in 1997 the Service completed a Biological Opinion (BO) for the effects of the
32 NFIP on Federally listed (threatened or endangered) species in the Florida Keys; and
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34 WHEREAS, the 1997 BO found the NFIP jeopardized nine species in the Keys; and
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36 WHEREAS, in 2003 the Service re- initiated consultation and amended the 1997 BO and
37 concluded that the effect of the NFIP would result in jeopardy to eight of 10 species evaluated in
38 the BO; and
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40 WHEREAS, in a second amended complaint in 2003 the plaintiffs filed suit against FEMA and
41 the Service pursuant to the Endangered Species Act and the Administrative Procedures Act; and
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43 WHEREAS, on March 29, 2005 the United States District Court, Southern District of Florida
44 (District Court) granted summary judgment in favor of the Plaintiffs which found that the Service
45 and FEMA violated the Endangered Species Act and the Administrative Procedures Act; and
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WHEREAS, on September 9, 2005, the District Court entered an order enjoining FEMA from
issuing flood insurance under the NFIP on any new residential or commercial developments in
suitable habitats of federally listed (threatened or endangered) species in the Keys; and
WHEREAS, the District Court also ordered the Service to submit a new BO by August 9, 2006,
and the Service issued a new BO on August 8, 2006; and
WHEREAS, on April 1, 2008, the United States Court of Appeals for the Eleventh Circuit
affirmed the District Court's rulings of March 29, 2005 and September 9, 2005; and
WHEREAS, on February 26, 2009, the District Court ordered the Service to submit a new BO
by March 31, 2010 and on March 28, 2010, the Court granted a 30 day extension of this deadline;
and
WHEREAS, on April 30, 2010, the Service published the revised BO for FEMA's
administration of the NFIP in Monroe County; and
WHEREAS, on December 14, 2010, the Service published the final amended BO for FEMA's
administration of the NFIP in Monroe County; and
WHEREAS, the BO contains a "Reasonable and Prudent Alternative" (RPA) that requires
Monroe County and other participating communities in the Florida Keys to revise their Flood
Damage Prevention Ordinance(s) to reference and use the updated real estate list (referenced in
RPA paragraph 1) within 120 days of acceptance of this BO by the Court, and;
WHEREAS, on January 11, 2011, the District Court approved a Settlement Agreement between
the Plaintiffs and the Federal Defendants in which the Federal Defendants agreed to notify the
Court and the parties when Monroe County and the other "participating communities" in the
Florida Keys have: 1) revised their Flood Damage Prevention Ordinance(s); and 2) implemented
procedures to reference and use the updated real estate list and Species Focus Area Maps
(referenced in RPA paragraph 1) in compliance with paragraphs 2, 3, 4, and 5 of the RPA; and
WHEREAS, on June 15, 2011 FEMA provided a draft of Ordinance recommendations to
Monroe County for adoption to meet the requirements of the RPA requiring the County to make
permit determinations based on assessment keys within Species Assessment Guides (SAGS); and
WHEREAS, on December 2, 2011, FEMA notified Monroe County that if the County did not
implement the RPA by January 11, 2012, then Monroe County would be placed on probation on
May 10, 2012. In response to the County's requested time extension, FEMA requested and the
Court granted an extension to June 30, 2012 for the ordinance revisions and permit referral process
implementation; and
WHEREAS, the County Attorney, outside counsel, and the Growth Management Director have
advised the Board that adoption of the RPA; ordinance language; and originally drafted SAGS
suggested by the Federal agencies would have resulted in increased exposure to the County for
liability for inverse condemnation or takings claims; and
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1 WHEREAS, FEMA and the Service revised the SAGs to include provisions that substantially
2 reduce the County's potential exposure for liability for inverse condemnation or takings claims;
3 and
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5 WHEREAS, FEMA provided comments on the County's DRAFT Ordinance, transmitted by the
6 County to FEMA on various dates; and
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8 WHEREAS, on June 20, 2012, the Board of County Commissioners approved Ordinance No.
9 015 -2012 that created Section 122 -8 which made the May 20, 2012 SAGs part of the Ordinance;
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12 WHEREAS, on April 15, 2013 the Service provided updated SAGs to the County for staff
13 review and comment; and
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15 WHEREAS, on July 29, 2013, the Service notified FEMA of the updated 2013 SAGs for
16 Monroe County and the Florida Keys' municipalities, provided final copies of the revised
17 documents, and posted digital copies on the Service's website; and
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19 WHEREAS, this Ordinance is being adopted to improve the use and consistent application of
20 the SAGs in Permit Referral Process determinations by correcting semantic problems, clarifying
21 wording, and reordering assessment keys; and
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23 WHEREAS, the Monroe County Planning Commission during a regular meeting held on
24 August 28, 2013, reviewed, discussed and approved the Sr. Director of Planning and
25 Environmental Resources' recommendation to the Planning Commission for the revisions to
26 Section 122 -2(b)3 of the Monroe County Land Development Code;
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28 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
29 COMMISSIONERS OF MONROE COUNTY, FLORIDA:
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31 Section 1 . Section 122 -2 of the Monroe County Land Development Code shall be amended as
32 follows:
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34 Sec. 122 -2. General provisions.
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36 a) Applicability. Except as provided for the elevated portion of a nonconforming residential
37 structure by section 122- 4(a)(10), no structure or manufactured home hereafter shall be
38 located, extended, converted or structurally altered, and no development shall occur, without
39 full compliance with the terms of this chapter in addition to other applicable regulations,
40 including, but not limited to, 44 CFR 60.3(a)(2).
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42 b) Basis for Establishing Special Flood Hazard Maps; Species Focus Area Maps (SFAMs) with
43 Species Focus Area Buffers and Federally Protected Species Area Real Estate (RE) List; and
44 Species Assessment Guides (SAGs).
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46 1) The areas of special flood hazard identified by the Federal Emergency Management
47 Agency (FEMA) in its February 18, 2005 Maps with accompanying supporting data, and
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1 any revisions thereof, are adopted by reference and declared to be a part of this chapter,
2 and shall be kept on file, available to the public, in the offices of the county building
3 department. Letter of map amendments, letter of map revisions, letter of map revision
4 based on fill, and conditional letter of map revisions approved by FEMA are acceptable
5 for implementation of this regulation.
6 2) Species Focus Area Maps (SFAMs) with Species Focus Area Buffers and Species Real
7 Estate (RE) list. FEMA and the U.S. Fish and Wildlife Service (FWS) have provided the
8 Species Focus Area Maps (SFAMs) mailed to Monroe County and dated April 30, 2011,
9 and a listing of real estate numbers of parcels (RE list) emailed to Monroe County and
10 dated November 18, 2011, that are within the SFAMs and that have been identified by
11 FWS. The SFAMs and the RE List that are within the SFAMs identified by the FWS in
12 accordance with the Biological Opinion, dated April 30, 2010, as amended December 14,
13 2010, are hereby declared to be a part of this chapter. The SFAMs and RE list are on file
14 at the Monroe County Clerk's office and the Monroe County Growth Management
15 Division Office.
16 3) Species Assessment Guides (SAGs). FEMA and FWS provided the May 20, 2012 Species
17 Assessment Guides (SAGS) to Monroe County and Monroe County adopted these SAGs
18 on September 13, 2012. FEMA and the FWS provided revisions of the SAGs to Monroe
19 County on July 29, 2013. Permits submitted after the date of this Ordinance shall be
20 reviewed utilizing the July 29, 2013 FWS /FEMA SAGs. These SAGs are declared to be a
21 part of this chapter. The SAGs are on file at the Monroe County Clerk's office and the
22 Monroe County Growth Management Division Office.
23 c) Rules for interpreting flood hazard issues. The boundaries of the flood hazard areas shown
24 on the official flood insurance rate maps may be determined by scaling distances. Required
25 interpretations of those maps for precise locations of such boundaries shall be made by the
26 floodplain administrator, in consultation with the building official. In interpreting other
27 provisions of this chapter, the building official shall be guided by the current edition of
28 FEMA's 44 CFR, and FEMA's interpretive letters, policy statements and technical bulletins
29 as adopted by resolution from time to time by the board of county commissioners.
30 Additionally, the building official shall also obtain, review and reasonably use any base
31 flood elevation and floodway data available from a federal, state or other source, as criteria
32 for requiring that new construction, substantial improvements, and other developments meet
33 the criteria required in the appropriate flood zone.
34 Section 2 Severabilitv.
35 If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be
36 adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
37 impair, invalidate, or nullify the remainder of this Ordinance, but the effect thereof shall be
38 confined to the section, paragraph, subdivision, clause, sentence or provision immediately
39 involved in the controversy in which such judgment or decree shall be rendered.
40 Section 3 Conflicting Provisions.
41 In the case of direct conflict between any provision of this ordinance and a portion or provision
42 of any appropriate federal, state or county law, rule, code or regulation, the more restrictive
43 shall apply.
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1 Section 4 Filing, Transmittal, and Effective Date.
2 This ordinance shall be filed in the Office of the Secretary of State of the State of Florida, and
3 transmitted to the State Land Planning Agency, but shall not become effective until a notice is
4 issued by the State Land Planning Agency or Administrative Commission approving the
5 ordinance pursuant to Chapter 380, Florida Statutes, and after any appeal period has expired.
6 Section 5 Codification
7 The provisions of this ordinance shall be included and incorporated into the Code of Ordinances
8 of the County of Monroe, Florida, as an addition or amendment thereto and shall be
9 appropriately numbered to conform to the uniform numbering system of the Code.
10 PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
11 Florida at a regular meeting held on the 16th day of October , 2013.
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Mayor George Neugent
Yes
Mayor Pro Tern Heather Carruthers
Yes
Commissioner Danny L. Kolhage
Yes
Commissioner David Rice
Yes
Commissioner Sylvia Murphy
Yes
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA
BY
Mayor George Neugent
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MONROE COUNTY ATTORNEY
APP ED AS TO FOR
Date:
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FLORIDA DEPARTMENT Of 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. 043 -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.tl.us
Final Order No. DEO -14 -001
STATE OF FLORIDA
DEPARTMENT OF ECONOMIC OPPORTUNITY
In re: A LAND DEVELOPMENT REGULATION
ADOPTED BY MONROE COUNTY, FLORIDA,
ORDINANCE NO. 043 -2013
FINAL ORDER
APPROVING MONROE COUNTY ORDINANCE NO. 043-2013
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. 043 -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 2, 2013.
3. The Ordinance amends Section 122- 2(b)3, General Provisions, Basis for
Establishing Special Flood Hazard Maps, Species Assessment Guides (SAGS), to require the use
of revised Species Assessment Guides provided to the County by the U.S. Fish and Wildlife
Service and the Federal Emergency Management Agency on July 29, 2013, for permit
determinations. The Species Assessment Guides are the mechanism used to determine whether
or not the issuance of a permit on a specific parcel may adversely affect habitat needed for
threatened or endangered species or species of special concern and is related to eligibility for
federal flood insurance.
c
Final Order No. DEO -14 -001
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:
(b) Protecting shoreline and marine resources, including
mangroves, coral reef formations, seagrass beds, wetlands, fish and
wildlife, and their habitat.
(c) Protecting upland resources, tropical biological communities,
freshwater wetlands, native tropical vegetation, dune ridges and
beaches, wildlife, and their habitat.
8. . The Ordinance is consistent with Conservation and Coastal Element Policies
207.6.4 and 217.1. in the Monroe County Comprehensive Plan.
WHEREFORE, IT IS ORDERED that Monroe County Ordinance No. 043 -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
(W This Order becomes effective 21 days after publication in the Florida Administrative
Final Order No. DEO -14 -001
Register unless a petition is timely filed as described in the Notice of Administrative Rights
below
DONE AND ORDERED in Tallahassee, Florida.
WILLIAM B. KILQiNGSWORTH
Director, Division 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
REFUSAA, TO ACT; OR YOU MAY EXERCISE THE OPTION TO PRESENT A WRITTEN
STATEMENT CHALLENGING THE GROUNDS UPON WHICH THE DEPARTMENT HAS
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE OF THE
DIVISION OF ADMINISTRATIVE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28 -106, PARTS I AND II, FLORIDA
ADMINISTRATIVE CODE. AT A FORMAL ADMINISTRATIVE HEARING, YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENTATIVE, AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, CONDUCT CROSS - EXAMINATION AND SUBMIT
3
Final Order No. DEO -14 -001
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.
4
Final Order No. DEO -14 -001
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.
James W. Bellflower, Agency Clerk
Department of Economic Opportunity
107 East Madison Street, MSC 110
Tallahassee, FL 323994128
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 - Christine @MonroeCounty- F1.Gov
Rebecca Jetton, DEO
email: Rebecca.Jetton @deo.myflorida.com