09/15/2010 Status of Tier System BOARD OF COUNTY COMMISSION fly
-�' 1 '- Mayor Sylvia 3. Murphy, District 5
Mayor Pro Tem Heather Carruthers, District 3
Kim Wigington,District 1
419,7 T' George Neugent, District 2
�L si 4 Mario Di Gennaro, District 4
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Mayor Sylvia J Murphy
Nelson Govt.&Cultural Ctr.,Ste.234
102050 Overseas Highway
Key Largo,FL 33037
Phone305-453-8787 _
Cell 305-797-0088
Email: boecdis5ra monroecounty-O.eov
September 15, 2010
Charles Gauthier, Director, AICP
Division of Community Planning
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
RE: DCA Letter of July 15,2010 to The Honorable Sylvia Murphy from Charles Gauthier
Dear Mr. Gauthier:
Thank you for your letter of July 15, 2010. County staff prepared a memorandum dated August 31, 2010,
which we discussed as a Board on September 15, 2010. Please review that memorandum. In addition,
please also review a previous memorandum dated December 11, 2009 attached.
Your letter of July 15 requests the Board of County Commissioners reconsider issuance of ROGO
allocations previously issued for tierless properties. It further requests the County not issue building
permits to tierless properties. At this time, we as a Board do not recommend doing this, for the reasons
stated in the staff memorandum dated December II, 2010, staff memorandum dated August 31, 2010, and
in this letter dated September 15, 2010.
The properties in question mentioned in your letter are approximately 100. However, we also wanted to
make sure you understand how we are handling an additional 90 properties in the ROGO allocation
system, as they are similar.
It is true the County Planning Commission has awarded approximately 100 ROGO allocations to tierless
properties since 2007, when the properties were rendered tierless. This fact was not discovered until the
staff developed GIS mapping and overlaid the 2007 tierless areas toward the end of 2009.
In addition, it was discovered toward the end of 2009 that approximately 90 parcels competing in ROGO
were already scored and ranked based on their previous tier designation, now rendered tierless.
The staff discussed these issues with the Board in November, 2009 and December, 2009 during the
Growth Management Division (GMD) Staff Report. In December, 2009, the Board received the
December I I, 2009 memorandum relative to your request.
As discussed with the BOCC at that time, the county Planning Commission had awarded 100 ROGO
allocations to tierless properties, and building permits were issued to 43 of the 100. The County had also
notified 41 ROGO awardees that they were eligible for building permits (these building permits were held
because of other issues — FEMA injunction, etc.). In December, 2009, a decision had to be made whether
to allow the last 16 awarded allocations, of the 100 that had received awards of allocations, to receive a
building permit. You can see the staff recommendation was to issue the building permits to these 16, and
the staff did notify the 16 property owners that they could obtain building permits.
Staff met with DCA staff and the plaintiffs attorney, Richard Gross4,aq..several times over several
months (between December, 2009 and February, 2010) and everyone was made aware of the status of the
100 awarded tierless allocations and building permits, as well as the 90 parcels competing in ROGO for
an allocation that were rendered tierless.
Monroe County staff made DCA staff and the plaintiffs attorney aware of these issues and let them know
Monroe County would honor the awarded allocations and issue building permits for the 100 (43 had
already been issued) tierless sites; however the County would not issue the 90 pending ROGO allocations
for the 90 tierless sites, as they had not yet received an allocation.
Since that time (Dec. 2009), the Planning Commission has held 22 of the 90 tierless allocations in
abeyance (meaning the ROGO allocations are held) until the BOCC readopts tier designations for these
parcels. As you know the Tier Designation Review Committee (TDRC) has been reviewing the parcels
and will make a recommendation to the DRC, PC, and then the BOCC for tier designation.
The Board of County Commissioners also adopted an ordinance to allow Monroe County to "carry over"
the "held" allocations that are being held because of this tierless situation and not have those allocations
be moved to the affordable housing pool, as our ordinance currently requires. The ordinance was
rendered to DCA and is currently under review. Monroe County has tried to create a fair situation, given
the tierless situation and the time requirements to re-designate the parcels. The County is still 6 months,
at a minimum, from any final decision on the tier designations of the tierless parcels.
After several months of communicating these facts with DCA and the plaintiff's attorney, being forthright
and honest about the status of these allocations and permits, it is our understanding that DCA challenged 2
building permits issued by the Growth Management Division. Those 2 were from the last group of 16 who
received allocations in the quarter immediately prior to GMD knowledge of their tierless status. DCA
most recently also challenged I building permit issued by the GMD from the grouping of 100 tierless
parcels (the other 84).
The County is now in receipt of a letter from DCA dated July 15, 2010, (attached and previously
referenced) requesting the BOCC consider NOT issuing allocations or building permits for tierless
properties already awarded allocations. In addition the DCA letter requests the County reconsider the
decision to issue allocations to individuals with an invalidated tier.
Unfortunately, there is a bit of a misunderstanding.
Please refer to the attached December II. 2009 memorandum. The second page demonstrates the 100
issued allocations by the Planning Commission prior to discovery of the invalidated tier. To clarify, the
Board of County Commissioners does not issue allocations. This is done by the Monroe County Planning
Commission, based on the Land Development Code. Property owners wait for several years for an
allocation. They have relied upon their rankings and allocations that were issued AFTER public hearings
by the Planning Commission. The third column of the December II, 2009 memorandum that was
discussed with the Board of County Commissioners and with DCA and with the plaintiff's attorney
indicates the actions staff was recommending related to this situation. The staff recommendation was a
reflection of a thorough evaluation of historical actions, awards of allocations through a public hearing
process and a fairness issue for property owners that may have been in the ROGO system for several
years. waiting for an allocation for a single-family house.
The County has no methodology set forth in the land development code to rescind allocations. To do as
the DCA suggests in its letter dated July 15, 2010, Monroe County would have to develop such a process
to rescind the allocations and then reallocate the awards. This may necessitate a land development code
amendment.
From a fairness perspective, the staff went ahead with allocations for all 100 and correspondingly issued
permits.
Staff understands DCA can challenge these building permits when rendered and has tried to make sure the
property owners understand this as well by sending letters to them concerning the situation. Given the
status of these 100 allocations, and the fact that some of the property owners ( at least 43) have already
built homes, staff does not recommend rescinding the allocations or building permits.
Alternatively, the BOCC would propose that DCA not challenge the building permits that are rendered in
the future for these 100 allocations, given the historic account of actions already taken by the local
government (Monroe County) through Planning Commission public hearings, the affirmative allocations
issued by the Planning Commission, the failure of DCA to challenge 14 of the 17 permits rendered to the
agency already (out of the 43 building permits issued), and the fact that these property owners may have
relied on iI
the designations in their decisions concerning these properties.
Finally, we remain focused and committed on working with the Department to move forward the analysis
and redesignation of tierless land, from the Tier Designation Review Committee to the Development
Review Committee, Planning Commission, and finally the Board of County Commissioners for final
adoption of Tier Designations for the tierless parcels. The undertaking is substantial and the amount of
work this has added to our staff is immense. We appreciate DCA's participation in this process and its
guidance. We have held all 90 allocations for those tierless parcels that were within ROGO but had not
received an allocation. At the earliest, the first set of Tier Map Amendments will be processed by the
Board of County Commissioners in January, 2011. This assumes the TDRC finishes its recommendations
in September, 2010.
Thank yo
ayor ylvia J. Murp
Monroe County
Enclosures
a. Memorandum from Christine Hurley to BOCC (08/31/2010)
h. Memorandum from Christine Hurley to BOCC (12/11/2009)
3
MEMORANDUM
MONROE COUNTY GROWTH MANAGEMENT DIVISION
We strive to he caring,professional and fair
To: Mayor Murphy and n Commissioners �� r
Roman Gastesi, County Administrator '
From: Christine Hurley, AICP
Director of Growth Management Division �, L
Date: December 11, 2009 s.
,1
RE: Status of Tier System-Designation of"Tier-Less"Parcels
As you know, in 2005-2006, Monroe County designated parcels into Tiers to assist with allocating permits to
appropriate areas from an environmental and planning perspective. Generally, the Tier designations are:
• Tier I-Environmentally sensitive land
• Tier II-Transition or Sprawl Reduction Area on Big Pine or No Name Key
• Tier III-Infill Area (not nearly as environmentally sensitive(50% or more developed lots), platted subdivisions,
with adequate infrastructure)
• Tier IIIA-Special Protection Areas-(no IIIA's on Big Pine or No Name Key) intent is for the areas that do not
fit into Tier 1 or Tier III to be placed in IIIA (e.g. the environmentally sensitive areas were split by roads, were
invaded with exotic plants or trees, or included some types of vesting
After adoption of the Tier Maps and ordinances, a legal challenge was filed to the ordinance which resulted in an order
from an administrative law judge (ALJ) that recommended striking certain portions of the tier criteria ordinance which
was used to classify parcels in the Tier System. DCA Secretary Pelham adopted the ALJ's recommended order in his
Amended Final Order. This ruling invalidated approximately 3100 +/- parcels' tier designations. As of December,
2009 the following table represents the total number of vacant parcels within Monroe County that are in the Tier
System:
Number of Vacant Parcels Tier Designations
2138 Tierl
441 Tier II
3411 Tier III
270 Tier III A
3124 Invalidated Parcels-Undesignated by Final Order
9382 Grand Total Number of Vacant Parcels in Tier System
With the complex permitting system in the County, this de-designation of these parcels, along with several other
groupings of parcels where property owners petitioned Monroe County for amendments to their Tier Designation have
caused large groupings of parcels/land to be"Tier-less",with no ability to score them in ROGO or NROGO.
Monroe County's Work Program, if amended as suggested in proposed Rule 28-20.140(3)(b), requires that these Tier-
less parcels be re-evaluated and processed into Tier categories, based upon recommendations made by a Tier
Designation Review Committee (TDRC). The Board of County Commissioners will ultimately be asked to adopt
amendments to the Tier Maps.
The Growth Management Division is preparing for the first TDRC meeting which is expected to occur in January, 2010.
There are several categories of parcels that should be evaluated or should maintain their current tier. I wanted to
summarize these for you in the most general sense, so if you are contacted by constituents you will know the current
status and the procedure for amending these parcels.
As always, our staff remains available to assist property owners in this complicated evaluation.
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MEMORANDUM
MONROE COUNTY GROWTH MANAGEMENT DIVISION
We strive to he caring,professional and lair
6-10
To: Board of County Commissioners w`r,
From: Christine Hurley, AICP
Growth Management Division Director
Date: August 31, 2010
RE: Response to DCA letter of July 15, 2010
Monroe County received a letter from the Department of Community Affairs dated July 15, 2010
(attached), that requested the County refrain from issuing building permits for the 100 properties
rendered tierless by the administrative law judge ruling in 2007. In November, 2009 and in
December 2009, the BOCC heard reports from Growth Management staff related to this issue.
Further in December, 2009, the BOCC received a memorandum dated December 11, 2009
(attached) that identified the 100 parcels that received either an allocation or building permit
prior to the discovery of the fact that the parcels were tierless. The attached table demonstrates
the status of those 100 parcels as of December, 2009.
As discussed with the BOCC, staff explained the status of the 100 permits and the last 16 permits
-- - - - - that were issued allocations by the Planning Commission, through a public hearing process, and
that we would be notifying the 16 property owners we would honor their building permits and
issue those. Staff met with DCA staff and the plaintiff's attorney, Richard Grosso, Esq. over
several months who were made fully aware of the status of the 100 awarded tierless allocations
and building permits, as well as the 90 parcels rendered tierless still competing in ROGO for an
allocation. We communicated with DCA and the plaintiffs attorney and let them know Monroe
County would honor the awarded allocations and issue building permits for the 100 (43 had
already been issued) tierless sites; however the County would not issue the 90 pending ROGO
allocations for the 90 tierless sites, as they had not yet received an allocation. Since that time
(Dec. 2009), the Planning Commission has held 22 of the 90 tierless allocations in abeyance
(meaning the ROGO allocations are held) until the BOCC readopts tier designations for these
parcels. As you know the Tier Designation Review Committee (TDRC) has been reviewing the
parcels and will make a recommendation to the DRC, PC, and then the BOCC for tier
designation.
After several months of communicating these facts with DCA and the plaintiffs attorney, being
forthright and honest about the status of these allocations and permits, DCA challenged 2
building permits issued by the Growth Management Division (GMD). Those 2 were from the last
group of 16 who received allocations in the quarter immediately prior to GMD knowledge of
their tierless status. Also, DCA most recently challenged 1 building permit from the grouping of
100 tierless parcels which had been awarded an allocation prior to the group of 16.
Monroe County Growth Management Division Pagel
The DCA letter requested the BOCC consider NOT issuing building permits for tierless
properties already awarded allocations. In addition, the DCA letter requests the County
reconsider the decision to issue allocations to individuals with an invalidated tier. Unfortunately,
there is a hit of a misunderstanding. Please refer to the attached December II, 2009
memorandum. The second page demonstrates the 100 issued allocations by the Planning
Commission prior to discovery of the invalidated tier. To clarify, the Board of County
Commissioners does not issue allocations. This is done by the Monroe County Planning
Commission. Property owners wait for several years for an allocation. They have relied upon
their rankings and allocations that were issued AFTER public hearings by the Planning
Commission. The third column of the December 11, 2009 memorandum that was discussed with
the Board of County Commissioners and with DCA and with the plaintiffs attorney indicates the
actions staff was recommending related to this situation. The staff recommendation was a
reflection of a thorough evaluation of historical actions, awards of allocations through a public
hearing process and a fairness issue for property owners that may have been in the ROGO
system for several years, waiting for an allocation for a single-family house.
The County has no methodology set forth in the land development code to rescind allocations.
To do as the DCA suggests in its letter dated July 15, 2010, Monroe County would have to
develop such a process to rescind the allocations and then reallocate the awards. This may
necessitate a land development code amendment.
Regarding building permits, as you can see, some of the properties that received allocations were
issued building permits and houses constructed. From a fairness perspective, the staff went
ahead with allocations for all 100 (including the 16 — which included the two DCA recently
challenged [Native Properties LLC, Reynolds, and the one challenged permit from the other 84
properties - Mannix]) and correspondingly issued permits.
Staff understands DCA can challenge these building permits when rendered and has tried to
make sure the property owners understand this as well by sending letters to them concerning the
situation. Given the status of these 100 allocations, and the fact that some of the property owners
have already built homes, staff does not recommend rescinding the allocations or building
permits.
Alternatively, the GMD would propose that DCA not challenge the building permits that are
rendered in the future for these 100 allocations, given the historic account of actions already
taken by the local government (Monroe County) through public hearings, the affirmative
allocations issued by the Planning Commission, the failure of DCA to challenge 14 of the 17
permits rendered to the agency, and the fact that these property owners may have relied on the
designations in their decisions concerning these properties.
Finally, we remain focused on working with the Department to move forward the analysis of the
Tier Designation Review Committee to the Development Review Committee, Planning
Commission, and finally the Board of County Commissioners for final adoption of Tier
Designations for the tierless parcels. The undertaking is substantial and the amount of work this
has added to our staff is immense. We appreciate DCA's participation in this process and its
guidance. We have held all 90 allocations for those tierless parcels that were within ROGO but
Monroe County Growth Management Division I'age2
had not received an allocation. At the earliest, the first set of Tier Map Amendments will be
processed by the Board of County Commissioners in January, 2011. This assumes the TDRC
finishes its recommendations in September, 2010.
We have attached a letter as a response to DCA and request the BOCC authorize the Mayor to
sign on its behalf.
Monroe County Growth Management Division Page ±
••
T1
Tezanos-Mayra
From: Hurley-Christine
Sent: Tuesday, September 14, 2010 11:58 AM
To: Stankiewicz-Tiffany; Rebecca.Jetton®dca.state.11.us; Gastesi-Roman; BOCCDIS5;
BOCCDIS4; BOCCDIS3; BOCCDIS2; BOCCDISI
Cc: 'tohara@keysnews.com'; Frederick-Debbie; Cyr-Connie; Grimsley-Susan; Hutton-Suzanne;
Howard-Derek; Shillinger-Bob; Schwab-Townsley; Roberts-Michael; Davisson-Bryan;
Tezanos-Mayra; Hurley-Christine
Subject: BOCC Agenda Item -J - 1
Attachments: Updated Sept 14 2010 Copy of allocations 100 status(2).pdf; Updated Sept 14 2010 Copy of
allocations 100 status(2).xlsx
Board of County Commissioners, Roman Gastesi, and Rebecca letton:
Some of you have asked the Growth Management Staff to quantify the status of the 100 parcels that were issued
allocations, which are the subject of the DCA letter dated 745-10 (whereby DCA has requested Monroe County to
consider rescinding the issued allocations and building permits).
Please find attached a spreadsheet that demonstrates the current status of each of the 100 parcels and where they are
in the process. Basically, 53 building permits have been issued (5 already have certificates of occupancy (people living in
homes) and 19 are under construction and proceeding with development) and 46 are on hold (either because of the
FEMA injunction or because of SB360/SB1752 extensions)and 1 has been appealed by DCA.
Rebecca: You asked how many of the parcels within the 100 are being recommended to have a tier change that would
have negatively affected their scoring in ROGO. It appears, based on the TDRC PRELIMINARY recommendation for re-
designation of tiers on these 100 sites, that 16 will go from Tier III to Tier IIIA or I, if the Board of County Commissioners
adopts the PRELIMINARY recommendations with no changes.
I hope this information is useful. Thank you Tiffany for your hard work on this.
Mayra: Please print this email and the attachment— 10 copies for my meeting tomorrow.
Christine Hurley, AICP
Monroe County
Growth Management Division
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